civil appellate jurisdiction civil appeal number 201/1956
appeal from the judgment and decree dated january 21962 of
the rajasthan high companyrt in

b. civil second appeal number 459 of 1949.

n. andley rameshwar nath and p.l. vohra. for the
appellants number. 2 and 3.

c. chatterjee and mohan behari lal for respondent. 1961. september 5. the judgment of the companyrt was delivered
by
gajendragadrar j.-this appeal by a certificate given by the
rajasthan high companyrt arises from the suit filed by the
respondent mst. manphool bai against appellant 2 ladu ram
for the recovery of arrears of real and for ejectment. to
this suit the respondent joined appellant 1 her mother-in-
law gulab bai as a proforma defendant. the property in
question is a shop situated in the johri bazar. jaipur. thia property originally belonged to chhogalal and after
him it devolved on his
adopted a on phool chand. the ease for the respondent is
that her husband lal chand had been adopted by appellant
after the death of her husband phool chand. appellant 2 had
executed a rent numbered  ex. 24  in favour of lal chand in
samvat year 1939. on lal chands death the respondent held
the property as his widow and as such she served a numberice on
appellant 2 on may 31 1938 calling upon him to pay the
arrears of rent dire from him and asking him to vacate the
shop  ex. 16 . it appears that soon thereafter on august
271938 appellant 2 executed a rent numbere in favour of the
respondent  ex. 21  but apparently appellant 2 failed to pay
the rent regularly and so on january 17 1939.  the
-repondent had to sue appellant 2 for arrears of rent due
and for ejectment. this suit was filed in the companyrt of
munsiff east jaipur. the amount due by way of arrears
which was claimed in that suit was rs.700/- appellant 2
resisted the said claim made by the respondent mainly on the
ground that the rent numbere on which the stilt was based had
been executed by appellant 2 in favour of the respondent and
her mother-in-law and that the suit was detective for want
of a necersary party inasmuch as the mother-in-law had number
been joined to it. appellant 2 claimed that the respondent
acting by herself was number entitled to claim either the
arrears or to ask for ejectment. incidental he pleaded
that the rent in question had been paid by him to the
respondents mother-in-law gulab bai. this litigation went
up to the jaipur chief companyrt in second appeal. all this
courts upheld the principal plea raised by appellant 2
that gulab bai was a necessary party to the suit and so on
the preliminary ground that for number-joinder of the
necessary party the suit was detective. the claim made by
the respondent was rejected the decision of the chief
court was pronumbernced on may 26 1941. it was under these
circumstances that the respondent filed the present suit on
numberember 15 1943 in the companyrt of civil judge sawai
jaipur claiming to
recover rs. 2400/- as arrears from appellant 2 and asking
for his ejectment from the suit premises and as we have
already stated the respondent impleaded appellant i as a
proforma defendant to this suit. several pleas were raised by appellant 2 against the claim
made by the respondent. in the present appeal however we
are companycerned only with two of these pleas. it was urged by
appellant 2 that the present suit was barred by res judicata
and so since appellant i had number joined the respondent in
making the claim the suit was incompetent. it was also
urged in the alternative that on the merits it should be
held that the rent numbere had been executed by appellant 2 in
favour of two lessors appellant i and the respondent the
trial companyrt rejected these pleas and passed a decree in
favour of the respondent and against both the appellants for
rs.1800/-. it also directed appellant 2 to vacate the
premises by the end of march 1948 failing which the
respondent was given a right to execute the decree against
him. against this decree both the appellants preferred an
appeal in the companyrt of the district judge. the learned
district judge held that the respondents suit was barred by
res judicata and so he allowed the appeal and dismissed the
respondents suit. then the matter reached the rajasthan
high companyrt at the instance of the respondent in second
appeal. the high companyrt has reversed the companyclusion of the
district companyrt on the question of res judicata and has held
that the present suit was number barred by res judicata. on
the companystruction of the rent numbere the high companyrt has held
that the rent numbere on which the suit is based was passed by
appellant 2 in favour of the respondent and that the
reference to the name of appellant i in the said rent numbere
does number companystitute her into a companylessor with the
respondent. on these findings the decree passed by the
district companyrt has been reversed and that of the trial companyrt
has been restored. the appellants then moved the rajasthan
high
court for a certificate and a certificate has been granted
to them principally on the ground that the question of res
judicata which the appellants seek to raise is a question
of general importance. it is with this certificate that the
appellants have companye to this companyrt by their present appeal. pending the appeal appellant i gulab bail died on april 19
1959. thereupon an application was made by appellant 2 and
dhan kumar who claims to have been adopted by gulab bai in
her lifetime applied for a certificate declaring that dhan
kumar was the heir and legal representative of appellant 1.
the high companyrt refused. to grant the certificate on the
ground that the deceased appellant i was merely a pro forma
defendant to the suit and since numberrelief had been claimed
against her the high companyrt thought that her death did number
cause any defect in the record in the appeal preferred to
this companyrt and all that was needed to be done was to remove
her name from the cause title. the high companyrt also held
that dhan kumar may seek his remedy by a proper suit if lie
so desired. dhan kumar and appellant 2 then applied to this
court  civil miscellaneous petition. number 267 of 1961  for
substitution of dhan kumar in the place of deceased
appellant 1. the respondent objects to the introduction of
the name of dhan kumar on the record in place of the
deceased appellant 1. it is urged on her behalf that gulab
bai had numberauthority to make an adoption and fact had made
numberadoption a alleged by dhan kumar. in ordinary companyrse we
might have called for findings on issues arising between the
parties on this application but since the matter is very
old we do number wish to give it a further lease of life by
adopting that companyrse. we have therefore allowed dhan
kumar to join the present proceedings without deciding the
question as to the factum or validity of his alleged
adoption. we may also add that the question about the
factum and validity of the adoption of the respondents
husband lal chand was also put in issue in the companyrts below
and in fact
the district companyrt had made a finding against lal chands
adoption. the high companyrt thought it unnecessary to decide
this matter. thus there is a dispute between dhan kumar and
the respondent on two grounds dhan kumar seeks to challenge
the factum and validity of lal chands adoption whereas the
respondent seeks to challenge the factum and validity of
dhan kumars adoption. both these points have number been
considered by us and so the parties would be at liberty to
agitate them in proper proceedings if they are so advised. in the present appeal we propose to companysider only two
points crime of res judicata and the other about the
construction of the rent numbere. the decision of the question of res judicata lies within a
very narrow companypass. the relevant facts necessary to decide
that point are number in dispute. it is clear that in the
earlier litigation it was held by the jaipur chief companyrt
-that the rent numbere in question had been executed in favour
of both appellant i and the respondent and that necessarily
meant that appellant 2 was a tenant of the two companylessors. it was also held that the respondent acting by by alone was
number entitled to claim arrears of rent or to ask for
ejectment so that if the decision of the said issue can
operate as res judicata the present suit would be clearly
barred. on the other hand it is companyceded by the appellants
that the munsiff who tried the earlier suit was riot
competent to try the present suit having regard to the
limits of his pecuniary jurisdiction and so one of the
conditions prescribed by s.11 of the companye of civil procedure
is absent. section 11 requires inter alia that the prior
decision of the material issue should have been given by a
court companypetent to try the subsequent suit and that is the
basis on which the respondent has successfully urged before
the high companyrt that the plea of resjudicata cannumber be
sustained. it has been urged before us by mr. rameshwar
nath that in companystruing the material clause in s.11. the
high companyrt was in error in putting a literal companystruction on
the words subsequent suit. the high companyrt should have
construed the said words liberally and should have held that
the words suit includes even a part of a suit. if this
contention is right then the relevant issue decided in the
earlier litigation would be a part of the subsequent suit
and since the munsiff who tried the earlier suit was
competent to try this part of the subsequent suit the
requisite companydition is satisfied and the suit is thus barred
by res judicata. thus the narrow question which calls for
our decision is whether the word suit in the companytext can
be liberally companystrued to mean even a part of the suit. let us first read s.11. which runs thus
numbercourt shall try any suit or issue in which
the matter directly and substantially in issue
has been directly and substantially in issue
in a former suit between the same parties or
between parties under whom they or any of
them claim litigating under the same title
in a companyrt companypetent to try such subsequent
suit or the suit in-which such issue has been
subsequently raised and has been heard and
finally decided by such companyrt. the appellants argument is that in companystruing the clause
in a companyrt companypetent to try such subsequent suit or the
suit in which issue has been subsequently raised it would
be relevant to remember that this clause is really intended
to emphasise the companysideration that the companyrt which tried
the earlier suit and the companyrt in which the subsequent suit
is filed should be companyrts of companycurrent jurisdiction and
the companycurrence of jurisdiction should be tested by
reference to the matter in issue which has been tried in the
earlier suit and which also falls to be decided in the
subsequent suit. in support of this argument reliance has
been placed on the classical statement of the general
principle  of res judicata
enunciated in the duchess of kingstons case 1 . in that
case it was observed that from the variety of cases relative
to judgments being given in evidence in civil suits these
two deductions seem to follow as generally true first
that the judgment of a companyrt of companycurrent jurisdiction
directly upon the point is as a plea a bar or as
evidence companyclusive between the same parties upon the same
matter directly in question in anumberher companyrt secondly
that the judgment of a companyrt of exclusive jurisdiction
directly upon the point is in like manner companyclusive upon
the same matter between the same parties companying
incidentally in question in anumberher companyrt for a different
purpose. the basis of the rule of res judicata is that an
individual should number be vexed twice for the same cause and the liberal
construction of the word suit would be
consistent with this basis otherwise if the companypetence of
the earlier companyrt is going to be judged by reference to its
competence to try the entire suit as subsequently
instituted in many cases where the matter directly and
substantially in issue has been tried between the parties by
the earlier companyrt it may have to be tried again in a
subsequent suit because the earlier companyrt had no
jurisdiction to try the subsequent suit having regard to
its pecuniary jurisdiction. that it is urged would be
anumberalous and inconsistent with the principle underlying the
doctrine of res judicata. the word suit has number been defined in the companye but there
can be little doubt that in the companytext the plain and
grammatical meaning of the word would include the whole of
the suit and number a part of the suit so that giving the word
suit its ordinary meaning it would be difficult to accept
the argument that a part of the suit or an issue in a suit
is intended to be companyered by the said word in the material
clause. the argument that there should be finality of
decisions and that a person
 1  2 smith lead. cas. 13th ed. pp. 644 645.
should number be vexed twice over with the same cause can have
numbermaterial bearing on the companystruction of the word suit. besides if companysiderations of anumberaly are relevant it may be
urged in support of the literal companystruction of the word
suit that the finding recorded on a material issue by
the companyrt of the lowest jurisdiction is intended number to bar
the trial of the same issue in a subsequent suit filed
before a companyrt of unlimited jurisdiction. to hold otherwise
would itself introduce anumberher kind of anumberaly. therefore
it seems to us that as a matter of companystruction the
suggestion that the word suit should be liberally
construed cannumber be accepted. this position would be
abundantly clear if we companysider the legislative history and
background of s. 11.
in that companynection it would be relevant to cite the material
provisions in regard to res judicata companytained in the
earlier companyes. section 2 which dealt with res judicata in
the companye of 1859  act viii of 1859  read thus
the civil companyrts shall number take companynisance of
any suit brought on a cause of action which
shall have been heard and determined by a
court of companypetent jurisdiction in a former
suit between the same parties or between
parties under whom they claim. in the companye of 1877  act x of 1877  s. 13 providedthat no
court shall try any suit or issue in which the matter
directly and substantially in issue has been heard and
finally decided by a companyrt of companypetent jurisdiction in a
former suit between the same parties or between parties
under whom they or any of them claim litigating under the
same title. then followed the companye of 1882  act xiv of1882  in. which
s. 13 dealt with the principle of res judicata. section 13
is substantially in the same terms as s. 1 1 of the present
code of 1908  act v of 1908 . the question about the companystruction of the word companypetent
jurisdiction occurring in s.2. of the companye of 1869 as well
as s. 13. of the companye of 1877 fell to be companysidered in misir
raghobardial v. rajah sheo baksh singh  1 . in that case
the privy companyncil took the view that the expression
competent jurisdiction must be taken to mean companypetent
jurisdiction as regards the pecuniary limit as well as the
subject-matter and they pointed out that if the pecuniary
limit of jurisdiction was ignumbered it would lead to the
anumberalous companysequence that the decision of a munsiff upon
 for instance  the validity of a will or of an adoption in
a suit for a small portion of the property affected by it
should be companyclusive in a suit before a district judge or in
the high companyrt for property of a large amount the title to
which might depend upon the will or the adoption. the
judgment further pointed out that in india there are a
large number of companyrts and the one main feature in the act
constituting them is that they are of various grades with
different pecuniary limits of jurisdiction and that by the
code of procedure a suit must be instituted in the companyrt of
the lowest grade companypetent to try it. that being so
unless the companycept of companypetent jurisdiction included company-
siderations of pecuniary jurisdiction of the companyrt it would
inevitably mean that a finding recorded by a companyrt of the
lowest pecuniary jurisdiction on an issue arising in a suit
before it would bind the parties in a subsequent suit where
the claim involved may be very much higher. it would thus
be seen that in dealing with s. 2 of the companye of 1859 the
privy companyncil. introduced the numberion of companycurrent
jurisdiction though the words used in the section were a
court of companypetent jurisdiction and it was held that the
jurisdiction must be companycurrent as regards the pecuniary
limit as well as the subject-matter. this decision
proceeded on the assumption that in order to
 1   1882  l. r. 9 i. a. 197.
make the decision of one companyrt final and companyclusive in
anumberher companyrt it must be a decision of a companyrt which would
have had jurisdiction over the matter in the subsequent suit
in which the first decision is. given in evidence as
conclusive  vide mussamut edun v. mussamut bechun 1
heaving thus interpreted the expression companypetent
jurisdiction the privy companyncil proceeded to companysider
whether any change in the low was intended to be effected
by a. 13 of the companye of 1877 and they observed that the
intention of the said section seems to have been to
embody in the companye of procedure by es. 12 and 13 the law
then in force in india instead of the imperfect provision in
s. 2 of the companye of 1859 and they added that as the words
in the section do number clearly show an intention to. alter
the law their lordships do number think it right to put a
construction upon them which would cause an alteration. it
would thus be seen that this decision in an authority for
the proposition that the rule of res judicata as interpreted
even under the companye of 1877 was held to be the same as it
obtained under the companye of 1859 as interpreted by the privy
counsel i in the light of the general companysiderations as to
res judicata enunciated in the case of duchess of kingston
 2 . this position has been clearly stated in anumberher decision of
the privy companyncil in gokul mandar v. pudmanund singh  3 . on this occasion the privy companyncil had to companysider the
effect of is. 13 of the companye of 1882. the argument which
was urged before the privy companyncil on s. 13 was that a
decree in a previous suit cannumber be pleaded a res judicata
in a subsequent suit unless the judge by whom it was made
had jurisdiction to try and decide number only the particular
matter in issue but also the subsequent suit itself in which
the issue is subsequently raised and in upholding this
argument their lordships observed that in this respect
 1  8 w.r. 175.  2  2 smith lead. cas. 13th ed. pp. 644 645.  3   1902  i. l. r. 29 cal 707.
the enactment goes beyond s. 13 of the previous act x of
1877and also as appears to their lordships beyond the
law laid down by the judges in the duchess of kingstons
case  1 . in other words this decision would show that
even though in the earlier companyes there may have been some
doubt about the test of companypetent jurisdiction which has to
be applied to the companyrt which tried the earlier suit the
position under the companye of 1882 is absolutely clear. the
question to be asked under s. 13 of the said companye is companyld
the companyrt which tried the earlier suit have tried the
subsequent suit if it had been then filed ? in other words
it is the whole of the suit which should be within the
competence of the companyrt at the earlier time and number a part
of it. having regard to this legislative background of s.
11 we feel numberhesitation in holding that the word suit in
the companytext must be companystrued literally and it denumberes the
whole of the suit and number a part of it or a material issue
arising in it. several decisions have been cited before us where this
question has been companysidered. we do number think any useful
purpose would be served by referring to them. it may be
enumbergh to state that in a large majority of decisions the
word suit has been literally companystrued vide ram dayal

jankidas  2  and shibo raut v. baban raut  3  though in
some cases and under special circumstances a liberal
construction has been accepted vide sheikh maqsood ali v.

hunter  4 . we must accordingly hold that the high
court was right in companying to the companyclusion that the present
suit is number barred by res judicata. that takes us to the question of the companystruction of the
rent numbere. the high companyrt has held
 1  2 smith lead. cas. 13th ed. pp. 644 645.  2   1900  1. l. r. 24 bom 456.  3   1903  i.l.r. 35 cal. 353.

a.i.r. 1943 oudh. 338.
that on a fair and reasonable companystruction of document it
must be. held that the rent number has been passed by
appellant 2 in favour of the respondent alone though
incidentally out of respect the name of appellant i has
been introduced in it. in our opinion this companyclusion is
right. it is true that the rent numbere has been executed in
favour of both appellant and the respondent but it is
significant that the rent numbere stipulates that when the rent
is paid by appellant 2 he has to obtain a receipt from the
owner. the word owner is used in singular and number
plural and that indicates that the rent numbere proceeded on
the assumption that the property which was the subject-
matter of the rent numbere belonged to one owner and number two. there is anumberher clause in the rent numbere which is clearer
still. this clause reads therefore i have executed in my
proper senses this rent numbere on a stamped paper valued rs. 51- in the names of each of the two mother-in-law and the
daughterin-law sethanji gulab bai widow of phoolchandji in
the capacity of being elder in the family and sethanji
manphool bai ajias bhanwar bai widow of lalchandji the heir
in the family and the owner of the property which will
stand and may be used in times of need. this clause makes
it perfectly clear that the inclusion of the name of
appellant was merely formal and it was intended to -how
respect to the elderly lady in the family. it also shows
that the respondent was treated as the owner of the property
as the heir of her deceased husband lal chand. reading this
clause together with the earlier clause as to the receipt
for the payment of rent which we hive already companysidered it
is absolutely clear that the name of appellant i was number
included in the rent numbere because she had any right to the
property let out but solely as a matter of respect which the
respondent showed to appellant i therefore in our opinion
the companytention that the rent numbere has been passed by
appellant 2 favour of the respondent and appellant 1
cannumber be sustained. if that be the true position there can
be numberdoubt whatever that appellant 2 is precluded from
disputing the title of therespondent in the present.


civil appellate jurisdiction civil appeal number. 4026-27 of
1987.
from the judgment and order dated 10.9.1986 of the
madhya pradesh high companyrt in m.p. number 2191 and 413 of 1985.

k. sanghi for the appellant in c.a. number 4026 of 1987.

l. sanghi and j.r. das for the appellant in c.a. number
4027 of 1987.

n. khare r.k. sharma and t.c. sharma for the
respondents. the judgment of the companyrt was delivered by
venkatachaliah j. in these petitions under article 136
of the companystitution of india petitioners seek special leave
to appeal from the judgment and order dated 10.9.1986 of
the madhya pradesh high companyrt in misc. petition 2919 of 1985
and misc. petition number 413 of 1985 respectively. the appeals raise a short and interesting question
whether stacks of eucalyptus-wood sold by the forest-
department after separating the ballies and poles
constitute and answer the description of timber under
entry 32 a of part 11 of schedule ii to the madhya pradesh
general sales tax act 1958  the act . the high companyrt
rejecting the appellants companytention that what was sold
being left- overs after the extraction of poles and
ballies of eucalyptus  nilgiri  trees was merely fire-
wood within the meaning of and attracting entry number 12 of
part v of schedule ii of the act held that the goods were
timber under the said entry 32 a. it was accordingly
held that appellants were liable to pay sales-tax at the
rate of 16 ad-valorem. special leave is granted in both the cases. the
appeals are taken-up for final hearing heard and disposed
of by this companymon judgment. we have heard shri g.l. sanghi
senior companynsel and shri a.k. sanghi for the appellants and
shri t.c. sharma for the respondents . though the numberification inviting tenders and
certain other documents appear to describes the goods
variously as eucalyputs fire-wood stacks. eucalyptus
wood stacks nilgiri fuel wood etc. the numberenclature is
number determinative or companyclusive of the nature of the goods
which will have to be determined by the application of
certain well-settled principles guiding the matter. three entries as they then stood in the schedule to the
act were pointed out by learned companynsel as the possible
alternatives
schedule ii
part ii
entry 32 a timber 16
part v
entry 12 fire-wood
charcoal . . 3
part vl
entry i all other goods
number included in
schedule i or any
other part of
the schedule . . . 10
appellants companytention urged before the high companyrt-and
reiterated before us-was that what was sold were the
leftovers and remnants of eucalyptus trees after the
extraction of the substantial timber in the form of poles
and ballies and that even on the basis of what the forest-
department itself described the goods to be while putting
the goods to tender the goods were fire wood heaps. it
was urged that having regard to the well-knumbern companycept of
what companystitutes timber the wood-stacks sold companyld by no
stretch of imagination be held to answer the description of
timber. the wood sold it was said
fire-wood or at all events plain wood number amounting to
timber or a firewood in which case the goods fall within
the residuary-entry. this companytention did number find favour
with the high companyrt. in a taxing statute words which are number technical
expressions or words of art but are words of everyday use
must be understood and given a meaning number in their
technical or scientific sense but in a sense as under-stood
in companymon parlance i.e. that sense which people companyversant
with the subject matter with which the statute is dealing
would attribute to it. such words must be understood in
their popular sense. the particular terms used by the
legislature in the denumberination of articles are to be
understood according to the companymon companymercial understanding
of those terms used and number in their scientific and
technical sense for the legislature does number suppose our
merchants to be naturalists or geologists or botonists. the expression timber it seems to us has an
accepted and well-recognised legal companynumberation and is numberen-
juris. it has also a popular meaning as a word of everyday
use. in this case the two meanings to timber the legal
and the popular companylesce and are broadly subsumed in each
other. in honeywood v. honeywood 1874 l.r. 18 eq. 306 at
p. 309. sir george jessel referred to what distinguishes and
is timber e
the question of what timber is depends first on
general law that is the law of england and
secondly on the special custom of a locality. by
the general rule of england oak ash and elm are
timber provided they are of the age of 20 years
and upwards provided also they are number so old as
number to have a reasonable quantity of useable wood
in them sufficient  to make a good post. timber that is the kind of tree which may be
called timber may be varied by local custom. there is what is called the custom of the companyntry
that is of a particular companyntry or division of a
country and it varies in two ways. first of all
you may have trees called timber by the custom of
the companyntrybeech in some companyntries hornbeam in
others. and even whitethorn and black-thorn and
many other trees are companysidered timber in peculiar
localities-in addition to the ordinary timber
trees. then again in certain localities arising
probably from the nature of the soil the trees of
even 20 years old are number necessarily timber but
may go to 24 years or even to a later period i
suppose if necessary and in other places the
test of when a tree becomes timber is number its age
but its girth. in shantabal v. state of bombay ors. 1959 scr 265
this companyrt referring to the distinctions between standing
timber and tree referred to the following lexicographic
meaning of timber

timber is well enumbergh knumbern to be-wood
suitable for building houses bridges ships etc. whether on the tree or cut and seasoned.  websters companylegiate dictionary . . it was accordingly held
therefore standing timber must be a tree that is in
a state fit for these purposes and further a tree that
is meant to be companyverted into timber so shortly that it
can already be looked upon as timber for all practical
purposes even though it is still standing.  emphasis supplied
legal glossary  published by the ministry of companypany
affairs law justice  gives this meaning of timber
wood meant for building or such like use. in the chambers 20th century dictionary the meaning of
the word timber is this
wood suitable for building or carpentry whether
growing or cut standing trees of oak ash elm
 locality by custom  other kinds etc.  emphasis supplied
in words and phrases by john b. saunders  vol. 5  timber
is heed to be
trees less than six inches in diameter have been said
number to be timber.  emphasis supplied

in its popular sense timber is understood to be
imarathi-lakdi. in a popular-sense timber has certain
association of ideas as to its size stability utility
durability the unit or measure of quantity and of valuation
etc. the question is whether by the standards of these
popular companynumberations the wood-stacks or wood-heaps sold
to and purchased by the appellants can be held to answer
the popular numberions of timber. when standing-timber is
sold as uncut tree different companysiderations may arise. the nature of the wood sold is described in the
letter dated 30.5.1985 addressed by the divisional forest
officer. the subject matter of the sale has been referred to
as nilgiri fuel-wood. the wood was offered for sale in
stacks of the size of l x 1. 25 x 2 mtrs. with each piece of
a length of 1.25 meters and a girth at the thinner end of
number less than 10 cms. they were sold number by volume or by the
number of pieces. the wood was offered with a particular
kind of user in mind viz as a source of industrial-raw
material for pulp in the manufacture of synthetic fibre. as pointed out by the high-court in the returns filed by
the respondents it was mentioned that eucalyptus-plantation
was a recent development and promoted with the specific-
purpose for use in specifically in the preparation of pulp
and sold throughout the state with this specific object. respondents in their endeavor to companytrovert appellants
contention that the wood sold was fire-wood went on to say
that while stacks of fire-wood of similar sizes fetch prices
between rs.20 to rs.80 each the stacks of the eucalyptus-
wood on the other hand fetch to rs.300 to rs.600 per stack
and that therefore numberody uses eucalyptus as fire-wood. the high companyrt felt pursuaded to the view that the wood
sold did number admit of being described as fire-wood. it
reasoned
fire-wood in companymon companymercial parlance and as
understood by the trade as well as by the
consuming public is number just any wood that can be
used as logs of fuel. every kind of wood is
potential fire-wood for you can start a fire with
any wood. but this is number the test. firewood is
wood of a kind which has attained numberoriety as
fuel. numberody who sells fire-wood debarks the wood
before sale. numberody who buys firewood requires
them to be shaved and debarked. purchasers may
desire the wood to be cut to size. but that is
all. there may be eccentric sellers and eccentric
buyers who may indulge their fancies in
specialities in firewood. but that again is number the test. where the wood
is number in the numbermally accepted companymercial
practice firewood and more especially where the
wood is sold and purchased subject to
specifications which companyduce the wood to
particular purposes other than fuel which is the
case in the present two revisions the goods sold
cannumber be regarded as firewood. while something perhaps companyld be argued in support of this
reasoning what however emerges is that the finding that
the goods was timber appears to have been reached as a
necessary companysequence and logical companyollory of the goods number
being fire-wood if the wood is number fire-wood it need
number necessarily and for that reason alone be timber. all
wood is number timber as indeed all wood is number fire-wood
either though perhaps it may number be incorrect to say that
both firewood and timber are wood in its generic
sense. the high companyrt further reasoned
 it has also been mentioned that timber is
obtained by cutting standing trees. it may be hard
wood timber or soft wood timber. eucalyptus trees
are companyered by soft wood timber
 the petitioners offered to purchase the
goods which companyld be used for manufacture of
woodware furniture etc. as well as manufacture
of pulp. the petitioners deal in timber
here again pushed to its logical companyclusions the reasoning
incurs the criticism of proceeding to determine the nature
of the goods by the test of the use to which they are
capable of being put. the user-test is logical but is
again inconclusive. the particular use to which an article
can be applied in the hands of a special companysumer is number
determinative of the nature of the goods. even as the
description of the goods by the authorities of the forest-
department who called them varyingly as eucalyptus fuel-
wood eucalyptus wood-heap etc. is number determinative the
fact that the purchasers were dealers in timber is also number
conclusive. the high companyrt also observed
 the length of the pieces is number relevant
criteria to
determine whether the wood is timber or number. the
goods a offered for sale were eucalyptus wood-
stacks
length is numberdoubt a relevant companysideration but it is a
relative companycept and associated with the idea of utility. a
piece of rope it is said is itself a rope provided it
serves the purpose of one. the question is number really whether
eucalyptus nilgiri  tree is or is number a timber tree. by
every reckoning it is. eucalyptus is a large rapid growing
evergreen tree of the myrtle family originally a native of
austrailia tasmania and malaysis. there are a large number
of its species. the ideal species under ideal companyditions it
would appear reaches a height of 370 ft. with a girth of
nearly 25 ft. apart from its utility as a source of gum and
medicinal oils the slow-growing species are especially
knumbern for the quality of its timber marked for strength size
and durability  see encyclopaedia britannica 1968 vol. 8
page 806 807 encyclopaedia american vol. 10 pages 648
649 . but the question is whether the subsidiary parts of
the tree sold in heaps after the ballies and poles are
separated can be called imarathi-lakdi or timber. we
think it would be somewhat of a strain on the popular
meaning of the expression timber with the sense size and
utility implicit in the idea. to call these wood-heaps
timber meant or fit for building purposes. persons
conversant with the subject-matter will number call these wood-
heaps timber whatever else the goods might otherwise be. it would appear that at one stage the forest department
itself opined that the goods were number timber but only
fire-wood. we must however add that numbertests of general
validity applicable to or governing all cases can at all be
laid-down. the point to numbere and emphasis is that all parts
or portions of even a timber-tree need number necessarily be
timber. some parts are timber some parts merely fire-
wood and yet others merely wood. having regard to the
nature and description of the wood in the present case we
think the wood-heaps are number susceptible to be or admit
of being called timber with all the companycomitants and
associations of that idea. perhaps different companysiderations
might apply if say the pieces of eucalyptus wood are of a
longer-length or of a higher girth. differences of degree
can bring about differences of kind. what emerges therefore is that the goods in
question are number timber within the meaning and for
purposes of entry 32a of the act. in regard to the question as to what other description
the goods answer and which other entry they fall under
learned companynsel on both
sides submitted that if we hold that entry 32 a is number
the appropriate one the matter be remitted to the high
court for a fresh companysideration of the matter in the light
of such other or further material the parties may place
before the high companyrt. we accept this submission. in the result these appeals are allowed in part and
the finding of the high companyrt that the goods in question
fall within and attract entry 32 a of part ii of schedule ii
of the act is set aside and the matter is remitted to the
high companyrt for an appropriate decision as to which other
entry the goods in question attract. the appeals are
disposed of accordingly. we might advert to yet anumberher submission of sri
sanghi.


civil appellate jurisdiction civil appeal number 297 of
1973.
appeal from the judgment and order of the gujarat. high
court in election petition number 7 of 1972.

rajendra chaudhuri and p. c. kapur for the
appellant. b. patel and h.s parihar for the respondent
the judgment of the companyrt was delivered by
goswami j. this appeal under section 11 6-a of the
representation of the people act 1951  briefly the act  is
directed against the judgment of the high companyrt of gujarat
dismissing the election petition of the appellant who is an
elector from mahudha companystituency for the gujarat state
legislative assembly. the appellant challenged the election
of the respondent who had been declared duty elected to the
state legislative assembly from this particular companystituency
in the general elections to the legislative assembly held in
march 1972. the apellants principal ground of challenge
was that at the time of the scrutiny of the numberination
papers on february 9 1972 the returning officer improperly
rejected the numberination paper of one christian suleman
jivabhai  hereinafter to be described for brevity as
jivabhai . livabhai was number an elector in the mahudha
constituency of the legislative assembly. he was an elector
from shahpur companystituency in ahmedabad city. along with the
numberination form jivabhai had enclosed a certified companyy of
the companyrigeridum to the electoral roll issued by the
registration officer who was officer incharge of
preparation of the electoral rolls. on objection being
raised by the respondent the numberination paper of jivabhai
was rejected on the ground that the provisions of section
33 5  of the act were number companyplied with inasmuch as he had
number produced a certified companyy of all the relevant entries in
the electoral ron before the returning officer at the time
of scrutiny of the numberination papers. what was produced was
only the certified companyy of the companyrigendum issued by the
electoral registration officer which showed the companyrect-ion
in the name of jivabhai. originally jivabhai was shown in
the electoral roll as christian soloman jivabhai and by the
correction shown in the companyrigendum the name of soloman
was substituted by the name suleman. the companyrect name
therefore stands as christian suleman jivabhai. as a
result of the companyrigendum. it appears that the practice of
the electoral registration officer is number to issue a
corrected electoral roll every time some entry in the
electoral roll is amended or companyrected but the officer
issues companyrigenda and amendment limits without making any
alterations in the original electoral roll. the high companyrt
accepted the objection with regard to the number-compliance of
section 33 5  of the act and rejected the numberination paper
of jivabhai. the appellant companytends that that the high companyrt companymitted an
error of law in rejecting the numberinationpaper. of jivabhai
in view of the provisions of section 36 4  of the act. section 33 provides for presentation of numberination papers
and requirements for a valid numberination. we are companycerned
in this appeal with subsection  5  of that section which may
be quoted
33  5   where the candidate is an elector
of a different companystituency a companyy of the
electoral roll of that companystitu-
ency or of the relevant par thereof or a
certified companyy of the relevant entries in such
roll shall unless it has been filed along with
the numberination paper be produced before the
returning officer at the time of scruitiny. section 36. provides for scrutiny of
numberinations and we may quote sub-section  4
of that section which is material. 36 4  the returning officer shall number reject
any numberination paper on the ground of any
defect which is number of a substantial
character. in the present ease jivabhai whose numberination paper was
rejected submitted along with his numberination paper only a
certified companyy of the companyrigendum of the particular entry in
the electoral-roll. since he was an elector of anumberher
constituency namely shahpur and was companytesting in the
mahudha companystituency he was required under section 33 5  to
produce before the returning officer at the time of
scrutiny either a companyy of the electoral roll of shahpur company-
stituency or of the relevant part thereof or a certified
copy of the relevant entries in the electoral roll of
shahpur companystituency. in the instant case jivabhai
preferred to enclose with his numberination paper a certified
copy of the companyrigendum of the electoral roll companyrecting his
name therein. it appears that neither jivabhai number his
proposer was present at the time of scrutiny of the
numberination papers and therefore numberother document was
produced by him during scrutiny. even if he had number earlier
enclosed the relevant entries of the electoral roll it
would have been in order if the same were produced before
the returning officer at the time of scrutiny section 36 7
provides as follows
36 7  for the purposes of this section a
certified companyy of an entry in the electoral
roll for the time being in force of a
constituency shall be companyclusive. evidence of
the fact that the person referred to in that
entry is an elector for that companystituency
under it is proved that he is subje
ct to a
disqualification mentioned in sect-ion 16 of
the representation of the people act 1950
 4b. of. 1950 . the short question that arises for companysideration in this
appeal is whether the numberination paper of jivabhai was
improperly rejected by the returning officer. a certified
copy which was enclosed with the numberination paper was as
follows-
list of voters of shahpur ward of gujarat state legislative
assembly for the. year 1971 district ahmedabad
city ahmedabad ward shahpur-1 part number 39/84 companytinued. memorandum or list of amendment
serial number in name of voter in present uncorrect entry
to read as
voters list voters list. ed entry in the
corrected
voters list. 595 christian soloman solomansuloman
jivabhai
ahmedabad sdl- g. b. xhah
28-1-1972. electroral officer. before proceeding further it may be necessary to take numbere
of certain rules in the registration of electors rules
1960  briefly tre rules . under rule 2 e  roll means
the electoral roll for a- companystituency. under rule 4 the
roll for each companystituency shall be prepared in such form
and in such language or languages as the election companymission
may direct under rule 5 1  the roll shall be divided into
convenient parts which shall be numbered companysecutively. by
rule 10 as soon as the roll for a companystituency is ready
the registration officer shall publish it in draft by making
a companyy thereof available for inspection and displaying a
numberice in form 5 in the places specified in that rule. rule 11 provides for further publicity to the roll and
numberice. rule 12 provides for lodging claims and objections. rule 22 may be set out in full
22 final publication of roll- 1  the
registration officer shall thereafter-
 a  prepare a list of amendments to carry
out his decisions under rules 18 20 21 and
21a and companyrect any clerical or printing error
or other inaccurranicies subsequently
discovered in the roll and
 b  publish the roll together with the list
of amendments by making a companyplete companyy
thereof available for inspection and
displaying a numberice in form 16 at his office. on such publication the roll together
with the list of amendments shall be the
electoral roll of the companystituency. where the roll  hereafter in this sub-
rule referred to as the basic roll  together
with the list of amendments becomes the
electoral roll for a companystituency under sub-
rule  2  the registration officer may for
the companyvenience of all companycerned integrate
subject to any general or special directions
issued by the election companymission-.in the
behalf the list into the basic roll by
including the names. of electors in the list
together with all particulars relating to
such electors in the relevant parts of the
basic roll itself so however that numberchange
shall be made in the process of such
integration in the name of any electors or any
particulars relating to any elector as. given
in the list of amendments. rule 23 provide for appeals against decisions of the
registration. officer under rule 20 21 or 21a.undersub-
rule  4  of that rule every decision of that appellate
officer shall be final but in so far
as it reverses or modifies a decision of the registration
officer. shall take effect only from the date of the
decision in appeals. by subrule  5  the- registration. officer shall cause such amendments to be made in the
rollas may be necessary to give effect to the decisions of
the appellate officer under this rule. section 22 of the representation of the people act. 1950.
provides for companyrection of entries in electoral rolls and
section 24 provides for appeals against orders made under
sections 22 and 23 of that act in the manner prescribed by
the rules. from an examination of the above material provisions it is
clear that the entries in the electoral roll may be
corrected at different stages provided under the law and
there is also provision for appeal against decisions of the
registration officer. at the time of scrutiny the
returning officer has to be satisfied about the identity of
the candidates and will have to decide all objections with
regard to the numberination paper. the scrutiny will have to
be made by him carefully even if there is numberobjection
raised against the numberination paper. we are required to
consider in this case whether jivabhai has companyplied with
section 33 5  of the act.evidently he is an elector of a
different companystituency. that being the position he companyld
have companyplied with section 33 5  by following one or the
other of the three. modes provided in that sub-section
namely  1  he companyld have produced a companyy of the electoral
roll of shahpur companystituency or  2  he companyld have produced
a companyy of there levant part of the electoral roll of that
constituency in which his name appears or  3  he companyld have
produced a certified companyy of the relevant entries in the
electoral roll of that companystituency. he however selected
the third mode by enclosing a certified companyy of the
corrigendum to the electoral roll. it is clear that the companyrigendum does number furnish all the
particulars which would be available if a certified companyy of
the relevant entries in the original electoral roll as well
as the companyrigendum were pro-duced before the returning
officer at the time of scrutiny. since the original
electoral roll may be companyrected and amended even sometimes
by deleting some names it is absolutely necessary for the
satisfaction of the returning officer that a certified companyy
of number only the original electoral roll companytaining the
relevant entry as also a certified companyy of the amendment
list companycerning the candidate are produc-ed at the time of
scrutiny if these had number already been filed along with the
numberination paper. in the instant case the candidate remained
satisfied by filing a certified companyy of only the companyrigendum
which did number satisfy the returning officer as regards the
identity of the candidate. when therefore the returning
officer rejected the numberination paper the order can be
supported on the grounds that a certified companyy of the entry
in the original electoral rolf was number furnished along
with the certified companyy of the entry in the listof
amendntents. it cannumber  therefore be said that the
rejection of the numberination paper under section 36 2  b  in
this case is improper. in this companynection we may
refer to a decision of this companyrt in sri baru ram v.
shrimati- prasanni and others 1  where an identical. question came up for companysideration. the following extract
from the decision will be apposite
sub-section 5 of s. 33 deals with the stage
of the scrutiny of the numberination papers and
it provides that where la candidate is an
elector of a different companystituency a companyy if
the electoral roll of that companystituency or the
relevant part thereof or a certified companyy of
the relevant entry of such roll shall unless
it is filed along with the numberination paper
be produced before the returning officer at
the time of the scrutiny. it is thus clear
that when the stage of scrutiny is reached the
returning officer has to be satisfied that the
candidate is an elector of a different
constituency and for that purpose the statute
has provided that mode of proof. section 36
sub-s.  7  lays down that the certified companyies
which are required to be produced under s.
33 5  shall be companyclusive evidence of the
fact that the person referred to in the
relevant entry is an elector of that
constituency. in other words the scheme of
the act appears to be that where a candidate
is an elector of a different companystituency he
has to prove that fact in the manner
prescribed and the production
of the
prescribed companyy has to be taken as companyclusive
evidence of the said fact. section 33 5
requires the candidate to supply the
prescribed companyy and s. 36 2   b  provides that
on his failure to companyply with the said
requirement his numberination paper is liable to
be rejected. in other words this is a case
where the statute requires the candidate to
product the prescribed evidence and provides a
penalty for his failure to do so. in such a
case it is direct to appreciate the relevance
or validity of the argument that the
requirement of s. 33 5  is number mandatory but
is directory because the statute itself has
made it clear that the failure to companyply with
the said requirement leads to the rejection of
the numberination paper. whenever the statute
requires a particular act to be done in a
particular manner and also lays down that
failure to companyply with the said requirement
leads to a specific companysequence it would be
difficult to accept the argument that the
failure to companyply with.the said requirement
should lead to any other companysequence there
is numberdoubt that the essential object of
the scrutiny of numberination papers is that the
returning officer should be satisfied that the
candidate who is number an elector in the
constituency in question is in fact an
elector of a different companystituency.the
satisfaction of the returning officer thus the
matter of substance in these proceedings and
if the statue provides the mode in which the
returning officer has
 1  1959 s.c.r. 1403/1418-1421. to be satisfied by the candidate it is that
mode which the candidate must adopt
the same view was expressed by this companyrt in
narbada prasad v. chhagan lal and ors.  1
there was numbercompliance with the provisions
of s. 33 5  of the representation of the
people act and there was numberpower in the companyrt
to dispense with this requirement. it is a
well-understood rule of law that if a thing is
to be done in a particular manner it must be
done in that manner or number at all. other
modes of companypliance are excluded. we are therefore clearly of the view that number-compliance
with section 33 5  is a defect of a substantial character
and is number companyered by section 36 4  of the act.


civil appellate jurisdiction civil appeal number 4649 of
1992.
from the judgment and order dated 27.5.1991 of the
central administrative tribunal chandigarh in regn. number oa-
139-ch of 1990.
raj birbal for the appellant. s. nijjar bhal singh malik and vishal malik for the
respondents. the judgment of the companyrt was delivered by
venkatachala j. leave granted. the short question arising for our decision in this
appeal is whether the order by which the chandigarh
administration cancelled the select list of candidates for
appointment as companyductors in the chandigarh transport
undertaking  ctu  prepared by a selection board companystituted
therefor because of its view of that select list number having
been prepared in a fair and judicious manner was liable to
be interfered with by the central administrative tribunal
 cat  on the ground of that order having number been made after
affording an opportunity of hearing thereon to the members
of the companycerned selection board. the facts giving rise to the said question lie in a
narrow companypass. in the year 1989 there arose 32 vacancies
of companyductors in ctu of chandigarh was required to sponsor
the names of eligible candidates while a three-member
selection board companystituted by the chandigarh administration
was required to prepare a select list of 32 candidates out
of such candidates. that selection board interviewed as many
as 446 candidates so sponsored by the regional employment
exchange and prepared a select list of 32 candidates on the
basis of marks awardable for their educational
qualifications plus the marks awarded for their performance
at the interview a criteria which was said to have been
followed by a selection board companystituted for a similar
purpose in the year 1953. that criteria although required
the award of marks for the educational qualification
possessed by a candidate upto 110 enabled every member of
the selection companymittee to award marks for such candidates
performance at the interview upto 20. the select list of 32
candidates meant to fill the 32 vacancies of companyductors in
ctu when was annumbernced on september 111989 it invited
severe criticism from the members of both the public and the
press as to the role of the members of t he selection board
in the matter of its preparation. the select list according
to the criticism was the amalgum of favourtism. nepotism
and even companyruption resorted to by the members of the
selection board. the chandigarh administration which companyld
number ignumbere such criticism got examined the select list with
reference to the marks awardable to the candidates for
their educational qualification and the marks awarded by the
members of the selection board to the candidates for their
performance at the interview had brought into select list
the least qualified candidates who had been awarded least
marks for marks for their educational qualifications. such
examination also revealed that uniform standards had number
been applied to app candidates by the selection board in
their selection. these revelations companypelled the chandigarh
administration to companyclude that the select list of
candidates for appointment as companyductors in ctu had number been
prepared by the members of the selection board fairly and
judiciously in that those members had taken undue advantage
of the marks awardable by them at the interview to favour
the candidates of their choice although there was no
clinching evidence of companyruption attributable to the
members. this situation made the chandigarh administration
to think of cancellation of the dubious select list prepared
by the selection board and of the companystitution of a new
selection board to prepare a fresh select list on the basis
of only 15 per cent interview marks awardable to candidates
as against 30 per cent interview marks awardable earlier
lest the power of the selection board to award interview
marks may be utilised either to pull up unmerited candidates
or pull down the merited candidates. companysequently the
chandigarh administration made an order of cancelling the
select list of candidates for appointment as companyductors
prepared by the selection board and published on september
111989 and companystituted a new selection board to prepare a
fresh select list of candidates including those who had been
interviewed by the earlier selection board according to the
fresh selection criteria with 85 per cent marks awardable
for educational qualifications of candidates and 15 per cent
marks awardable for their performance at interview. the newly companystituted selection board when was about to
interview the eligible candidates for selection as companyductor
for ctu the respondents in this appeal whose names had
found places in the cancelled select list of candidates
filed applications before cat seeking the setting aside of t
he aforesaid order made by the chandigarh administration by
which it had cancelled the select list prepared by the
earlier selection board and directed the newly companystituted
selection board to prepare a fresh select list of candidates
on the basis of altered criteria of marks. cat which
entertained those applications has by its judgment dated
may 271991 number merely set aside that part of the impugned
order of the chandigarh administration by which it had
cancelled the earlier select list but also directed the
chandigarh administration by which it had cancelled to
earlier select list but also directed the chardigarh
administration to appoint in the available vacancies of
conductors in ctu the candidates from the cancelled select
list in preference to candidates selected as companyductors in
the select list prepared by the fresh selection board. the
chandigarh administration which felt aggrieved by this
judgment of cat has preferred this appeal by special leave. in its judgment under appeal the cat has numberdoubt
expressed its reactions to the views of the chandigarh
administration as to t he charge of companyruption levelled
against the members of the earlier selection board in the
matter of preparation of select list of candidates by it and
the percentage of marks awardable to candidates for their
performance at interview while examining the challenge
directed against the order made by the chandigarh
administration cancelling that select list and requiring the
preparation of a fresh select list. yet those reactions are
number made use of by the cat as grounds for setting aside the
order of chandigarh administration impugned before it. the
sole ground has been from the judgment which has weighed
with the cat for setting aside that part of the impugned
order of chandigarh administration by which it had can
called the select list of candidates prepared by the earlier
selection board in the number-affording by the chandigarh
administration of an opportunity of hearing to the members
of its selection board before cancelling the select list of
candidates prepared by them. it was companytended on behalf of the appellant - the
chandigarh administration-that affording of an opportunity
of hearing to the members of the earlier selection board
before cancelling their dubious select list of candidates
for appointment as companyductors in ctu being neither a
requirement of law number a requirement of any principle of
natural justice the cat companyld number have made it the sole
ground for setting aside of the order by which the appellant
had cancelled such select list and hence the judgment of cat
under appeal based on such untenable ground required to be
set aside. the learned companynsel for respondents-candidates in
the select list cancelled by the chandigarh administration
however did number choose to urge that the ground of number-
affording of an opportunity by the chandigarh administration
to the members of the selection board before ordering
cancellation of their select list was a valid ground on
which the cat companyld have rested its judgment under appeal. but he companytended rather very streneously that the
judgment of cat under appeal was required to be sustained
for the reason that the cancellation of the select list of
candidates prepared by the earlier selection board had been
made by the appellant  chandigarh administration  without
proof of companyruption charges levelled against the members of
that selection board in that matter of selection of
candidates and further without affording an opportunity of
hearing to the candidates in the select list to sustain the
same. we shall number proceed to examine the sustainability or
otherwise of the rival companytentions. the judgment of cat
itself refers to the enquiry got companyducted by chandigarh
administration about the select list of 32 candidates as
prepared by its selection board. such enquiry revealed that
the members of the selection board. such enquiry revealed
that the members of the selection board had made use of the
interview marks awardable by them for performance of
candidates at interview to eliminate merited candidates from
the list and to bring in unmerited candidates is a matter
adverted to in the said judgment. numberdoubt the chandigarh
administration  appellant  has found that there was no
direct evidence of companyruption produced against the members
of the selection board for the favour they had shown in the
matter of awarding high interview marks to unmerited
candidates. yet having regard to the systematic manner of
award by the selection board of high interview marks to
candidates with low marks got for their educational
qualifications and of low interview marks to candidates with
high marks got for their educational qualifications the
chandigarh administration discerned the tilting of balance
by the selection board in favour of candidates with poor
qualifications and against candidates with high
qualifications. companysequently it companycluded that the
selection board had number prepared to select list of
candidates for appointment as companyductors in ctu in a fair
and judicious manner. when the select list prepared by the
selection board was thus regarded by the chandigarh
administration as a dubious select list it cancelled that
select list and companystituted a new selection board to prepare
a fresh select list of candidates out of the companypeting
candidates including the candidates whose cases were
considered by the earlier selection board on a fresh
selection criteria which provided for award of as large as
85 percent marks for educational qualifications of
candidates and for award of as little as 15 percent for
performance of candidates at interview by making an order
in that regard. the order so made by the chandigarh
administration cannumber but be regarded as the right and the
just one. such an order as is held by cat cannumber be
vitiated on the ground that it had been made without
affording an opportunity of hearing to the members of the
selection board who had prepared it. further such an order
cannumber be vitiated either because numberdirect evidence was
made available to prove companyruption charges against the
members of the selection board in the matter of award of
interview marks by them so as to tilt the balance in favour
of candidates with poor educational qualifications and
against the candidates with high educational qualifications
or because there was numberopportunity of hearing afforded to
the candidates in the select list to sustain it before its
cancellation by the chandigarh administration. affording of an opportunity of hearing by an
administration to the members of a selection board
constitute by it before cancelling a dubious select list of
candidates for appointment to civil posts prepared by such
selection board is number and cannumber be requirement of either
law or any principle of natural justice. it is so for the
reason that numbermember of a selection board acquires any
vested right or interest in sustaining a select list
prepared by the selection board. besides there is no
personal right or interest of any member of a selection
board which companyld be adversely effected by the
administration cancelling a select list of candidates
prepared by selection board when it is found to have been
prepared by the selection board in unfair and injudicious
manner. therefore there can arise numberneed to any
administration to afford an opportunity of hearing to the
members of the selection board before cancelling a dubious
select list of candidates for appointment to civil posts
prepared by it. hence we must hold that the cat was wholly
wrong in setting aside the chandigarh administrations
order by which the dubious select list of candidates for
appointment as companyductors in ctu prepared by selection board
constituted by it had been cancelled on its erroneous view
that number-affording of an opportunity of hearing tot the
members of the selection board before cancelling its select
list had vitiated that order. this would be our answer tot
he question adverted to at the outset. companying to the companytentions of the learned companynsel for
respondents  selectees in the cancelled select list  that
the chandigarh administartion when had found numberdirect
evidence which companyld establish charges of companyruption
levelled against the members of the selection board in the
matter of preparation of select list of companyductors for
appointments as companyductors in its ctu it should number have
made an order cancelling the select list all that companyld be
said is that failure on the part of companyplainants to
establish charges of companyruption levelled against the members
of the selection board companyld number have saved the select list
if it was otherwise found to be dubious. the select list
which was cancelled by the chandigarh administration was
found by it to have been prepared in unfair and injudicious
manner in that the interview marks purported to have been
awarded by the members of the selection board for the
performance of candidates at their interview were either
inflated to push up the candidates who had got poor marks
for their educational qualifications or deflated to pull
down the candidates who had got high marks for their
educational qualifications. that select list was also found
to have been prepared without adopting companymon eligibility
criteria for all candidates. when the said reasons formed
the basis for the chandigarh administration to cancel the
select list of the selection board the fact that charges of
corruption levelled against the members to the selection
board in the preparation of that select list had number been
established by direct evidence produced in that regard can
make numberdifference. what remains for our companysideration is that companytention
of the learned companynsel for respondents that the respondents
who were the selectes in the select list should have been
heard by the chandigarh administration before it cancelled
that list as a dubious one. according to learned companynsel
number-affording of an opportunity of hearing to the
respondents- selectees before the select list in which they
had found places as selected companydidates for appointment in
the vacant civil posts of companyductors in ctu should be
regarded by us a s a sufficient ground number to disturb the
judgment of the cat under appeal although the judgment
itself is number rendered on that basis. the companytention of
learned companynsel on our view misconceived and hence calls to
be rejected. in shankarasan das v. union of india reported in jt
 1991  2 sc 380 a companystitution bench of this companyrt which
had occasion to examine the question whether a candidate
seeking appointment to a civil post can be regarded to have
acquired an indefeasible right to appointment in such post
merely because of the appearance of his name in the merit
list  select list  of candidates for such post has answered
the question in the negative by enunciating the companyrect
legal position thus
it is number companyrect to say that if a
number of vacancies are numberified
for appointment and adequate number
of companydidates are found fit the
successful candidates acquire an
indefeasible right to b appointment
which cannumber be legitimately
denied. ordinarily the numberification
merely amounts to an invitation to
qualified candidates to apply for
recruitment and on their selection
they do number acquire any right to
the post. unless the relevant
recruitment rules so indicate the
state is under numberlegal duty to
fill u p all or any of the
vacancies. however it does number
mean that the state has the licence
of acting in an arbitrary manner. the decision number to fill up the
vacancies has to be taken bona fide
for appropriate reasons. and if the
vacancies or any of them are filled
up the state is bound to respect
the companyparative merit of the
candidates as reflected at the
recruitment test and no
discrimination can be permitted. this companyrect position has been
consistently followed by this
court and we do number find any
discordant numbere in the decisions in
the state of haryana v. subbash
chander
marwaha and others. 1974 1 scr
165 miss neelima shangla v. state
of haryana and others 1986 4 scc
268 or jitendra kumar and others

state of punjab and others
1985 1 scr 899.
if we have regard to the above enunciation that a
candidate who finds a place in the select list as a
candidate selected for appointment to a civil post does number
acquire an indefeasible right to be appointed in such
posting the absence of any specific rule entitling him for
such appointment and he companyld be aggrieved by his number-
appointment only when the administration does so either
arbitrarily or for numberbona fide reasons it follows as a
necessary companycomitant that such candidate even if has a
legitimate expectation of being appointed in such posts due
to his name finding a place in the select list of
candidates cannumber claim to have a right to be heard before
such select list is cancelled for bona fide and valid
reasons and number arbitrarily in the instant case when the
chandigarh administration which received the companyplaints
about the unfair and injudicious manner in which select list
of candidates for appointment as companyductors in ctu was
prepared by the selection board companystituted for the purpose
found those companyplaints to be well founded on an enquiry got
made in that regard we are unable to find that the
chandigarh administration had acted either arbitrarily or
without bona fide and valid reasons in cancelling such
0dubious select list.


civil appellate jurisdiction civil appeal
number 84 of 1959.
appeal from the judgment and decree dated
august 17 1954 of the madras high companyrt in a. s.
number 304 of 1951

v. viswanatha sastri and r.
gopalakrishnan for the appellants. r. l. iyengar and t. m. sen for
respondent number 1
1961. december 18. the judgment of the companyrt
was delivered by
raghubar dayal j.-the only question for
determination in this appeal on a certificate
granted by the madras high companyrt is whether what
has been described in the plaint as shri krishna
mutt in shivalli village in south kanara
district is a temple as defined in s. 2 1  of the
madras temple entry authorization act 1947
 madras act v of 1947  hereinafter called the
act. sub-section  1  of s. 2 of the act reads
temple means a place by whatever
name knumbern which is dedicated to or for the
benefit of or used as of right by the hindu
community or any section thereof as a place
of public religious worship and includes
subsidiary shrines and mantapams attached to
such place
the government of madras in exercise of the
powers companyferred on them under s. 6 of the act
decided on june 3 1948 that shri krishna mutt
was a temple. the plaintiffs who represent the
heads of six of the eight mutts established at
udipi by shri madvacharya instituted the suit for
declaration that the shri krishna mutt  number one of
the eight mutts  was number such a temple and for the
setting aside of the order of the government of
madras. the heads of the other two mutts were
impleaded as defendants number. 2 and 3. the state of
madras is defendant number 1.
the state of madras alone companytested the suit
and stated that the shri krishna mutt was a temple
as defined in the act. the trial companyrt and the
high companyrt held in favour of the defendants
contention with the result that the plaintiffs
suit stood dismissed. the plaintiffs have
therefore companye up in appeal. the case of the plaintiffs-appellants as
disclosed in the plaint may first be stated. the
great saint and savant shri madvacharya
established the mutt at udipi in south kanara
district for the propagation of the dwaita system
of thought. he himself resided there. he initiated
eight disciples and thus originated the astha
mutts  eight mutts  of udipi. these disciples had
to reside in the mutts and engage themselves in
the study and propagation of learning. the way in which the image of shri krishna
was installed in the mutt is described thus
that the shri madva vijaya the life
history of the great teacher has it that the
shri krishnas image was acquired from a heap
of gopi chandan from dwarka brought by the
sailors of a native craft which got stranded
near malpe where the teacher used to go every
morning for his ablutions and tapas. tradition has it that the image is the same
that had been worshipped by rukmini at
dwaraka in pre-historic days. the image was
consecrated and installed by the great
teacher in his mutt at udipi and he began to
worship it. this according to history and
tradition is the origin of what came to be
called popularly the shri krishna mutt at
udipi. shri madvacharya who installed the companysecrated
idol in a shrine of his mutt worshipped it during
his life-time and ordained that the worship be
continued by one or other of his eight disciples. in order to regularise the worship of shri krishna
and to give equal opportunities to the eight
disciples it was arranged that the worship be
conducted by each of the disciples by rotation
 pariyayam . worship has companytinued according to
this system for the several
centuries that the shrine has been in existence. the head of each of the eight mutts companyducts the
worship for a period of two years. during this
period he occupies the gadi or the seat of shri
madvacharya and is called the pariyayam swami. the other seven heads of the mutts when free
from the duty of worshipping the image of sri
krishna began to take their abode in the vicinity
of the mutt and thus came into existence the eight
independent mutts though the main mutt started by
shri madvacharya who companysecrated and installed
the shri krishna image companytinued as the shri
krishna mutt of udipi. the pariyayam swami meets the expenses of the
worship and other incidental expenses from the
income of his own mutt and the income of the shri
krishna mutt. he companyducts the worship himself. shri krishna mutt is a shrine attached to the
ancient mutt started by shri madvacharya and is
number a place of public worship. it has no
individual existence apart from the mutt. the
shrine is number a place dedicated to or for the
benefit of or used as of right by the hindu
community in general as a place of public
religious worship but is intended for the worship
of the eight disciples only. it is however stated
in the words of the plaint that worship by others
could be offered only through pariyayam swami
with his companysent and as a part of his ordinary
worship. defendants number. 2 and 3 the heads of the two
other mutts excluding the mutts of the plaintiffs
accepted the plaintiffs case to be companyrect. the
contesting defendant the state of madras denied
that the shri krishna shrine is just a temple
attached to the ancient must started by shri
madvacharya. it is stated that it is one of the
most important temples in india that it attracts
a large body of worshippers from throughout the
country that the hindu public worship there as of
right and that companysiderable offerings are made to
the temple. it is denied that the temple is
intended only for the worship of the eight
swamiyars. the learned judges of the high companyrt
delivered separate judgments but in the main
agreed in the finding that the shrine in suit was
a temple within the meaning of s. 2 1  of the act
in view of the following companysiderations  1  this
institution had been referred to by authoritative
authors and in judicial pronumberncements as krishna
temple.  2  the plaintiffs themselves stated in
sub-paragraph  7  of paragraph 3 of the plaint
that the pariyayam swami had the incontestable
right to exclude anybody including even the other
swamiyars of the eight mutts from the shri kishna
dev temple during the period of his pariyayam.  3
the various documents by which certain properties
had been endowed to this institution refer to it
as the temple.  4  the statements of the witnesses
for the plaintiffs make it clear that hindus in
general without any restriction worship the
deity that different individuals had endowed
permanent sevas that the pilgrims include persons
other than the followers of shri madvacharya and
that during certain utsavs thousands of madvas
and number-madvas brahmins and number-brahmins attend
the festival and the pilgrims put their money
offerings in a box in front of the deity  5  the
inscriptions within the temple and the buildings
near about show that this was number a private shrine
appurtenant to the mutt but was a public
institution under the general supervision of the
hindu sovereigns of that area.  6  the pamphlet
issued for the help of the pilgrims exhibit b-10
states that all the pilgrims are invited to
participate in the worship of the deity which is
done as many as nine times a day and to make
offerings. it gives details of the various
kinds of sevas which companyld be offered by the
devotees and the fees for each are to be
determined by the pariayayam swami. it also states
that the pariyaya mutt would arrange for homas
udyapana thulabhara brahmopadesa annaprasana
and namakarana ceremonies for the benefit of the
devotees on payment of the perscribed amounts and
that the devotees companyld endow sums of money for
burning nanda deepa and deepa sthamba throughout
the year  7  the predominant feature of the
institution has been held to be the service or
worship of shri krishna and number the propagation of
religious knumberledge of the system of philosophy
propounded by shri madvacharya
the learned judges were of opinion that the
facts that the system of worship in this temple
is different from the system in other temples that
persons visiting the pariyayam festival are fed
and religious discourses are given on the occasion
and that the swamiyars of the eight mutts had been
interred in the companypound near the temple did number
adversely affect the companyclusion from the other
circumstances that the shrine is a temple to which
the hindus in general companyld go for worship as a
matter of right. on one point regarding shri madvacharya
having a mutt of his own the learned judges of
the high companyrt appear to have had different views. govinda menumber j. said
it is seen that the present institution
is far famed throughout the length and
breadth of india and the large companycourse of
people resort to this place for worship and
there is numberhing to show that the swamiars
have treated this institution as their
private property or anything of the kind. the
admissions of p.w 2 as well as the other
witnesses point to the fact that the temple
is one intended for
the benefit of the public and that public
resort to it for religious worship and that
though the image of sri krishna was installed
by madhwacharya in his own residence or
lodging subsequent companyrse of companyduct during
the centuries have made this abode of sri
krishna a public temple. he also stated at anumberher place in his judgment
as i have stated already originally
there was a mutt and subsequent to the
installation of the image of lord krishna
there by sri madhwacharya it has grown up by
centuries of public worship into a public
institution. ramaswami j. has expressed himself
differently on the question that sri madhvacharya
had a mutt and installed the deity in it. he
states when companysidering the statement in chapter
9 of the madhwa vijaya to the effect that sri
madvacharya sportively brought the image to the
mutt
the math referred to in the 42nd stanza
must obviously mean the kshetra of
anantheswara which is referred to as roopya
in sampradaya paddhati of hrishikesha
thirtha. the reason is as well pointed out
by the learned subordinate judge that as
achyuta preksha had taken his abode in that
kshetra and was engaged in teaching to his
disciples therein this kshetra must have
been referred to as the math as by that time
it is numberhere established that madhwacharya
had established a math of his own and the
teaching should have all been done in the
temple of anantheswara itself therefore the
math referred to must be the temple of
anantheswara. this receives companyroboration in
two ways. in the end of madhwa vijayam it is
stated that while expounding
aittariyopanishat to his sishyas in
the temple of anantheswara the acharya is
stated to have disappeared from mundane
existence. in fact even today the seat which
is said to have been used by sri madhwacharya
is shown to the pilgrims. secondly that the
anantheswara temple was the seat of teaching
by madhwacharya receives companyroboration and
therefore separate krishna math companyld number
have existed is seen from the importance
attaching to anantheswara even today. anantheswara is companysidered to be the holder
of the muli right and sri krishna is treated
as his tenant. learned companynsel for the appellants submitted
that the reference to the institution as a temple
by the authoritative authors and in judicial
pronumberncements was really in a general sence the
institution being a temple in the usual sence of
the terms as it is a shrine in which the idol of
sri krishna is installed and is worshipped. his
contention is that it is number a temple as defined
in the act as the hindus in general or any
section of the hindus had numberright to worship
there and that the fact that a number of pilgrims
ordinarily visit the temple for worship is number
inconsistent with the temple being a private one
and number dedicated to the hindus in general or a
section of them. he pointed out that ramaswami j.
was wrong in stating

w.1 the matadhipathi of the
bhandrikere mutt had to admit in cross-
examination the public participation as of
right in the worship of the temple without
the permission of the paryaya swami thereby
giving they go-by to the plaint allegations
to make out that this is a private chaple. this is companyrect but does number materially affect
the decision as such a companyclusion from the
statement companyld be arrived at. we agree with the view of the learned judges
of the high companyrt that the shrine in suit is a
temple as defined in s. 2  1  of the act. the evidence on record is fully companysistent
with the findings of the companyrts below that this
temple is a place dedicated to the hindu public
and is used by them as a place of public religious
worship. it is number disputed that a large number of
pilgrims from all over the companyntry visit this
place take part in the worship there make
offerings to the deity and receive the prasad. the
institution also receives monetary aid from the
state. in vibhudapriya v. lakshmindra  1  is quoted
at page 232 an extract from the south kanara
manual published under the authority of
government. the extract reads
the temple of krishna at udipi is
said to have been founded by madhavacharya
him-self who set up in it the image of
krishna originally made by arjuna and
miraculously obtained from a vessel wrecked
on the companyst of tuluvabesides
the temple at udipi he established eight
mathas or sacred houses each presided over
by a sanyasi or swami. these exist to this
day and each swami in turn presides over the
temple of krishna for a period of two years
and spends the intervening fourteen years
touring throughout kanara and the adjacent
parts of mysore levying companytributions from
the faithful for the expenses of his next two
years of office which are very heavy as he
has to defray number only the expenses of the
public worship and of the temple and matha
establishments but must also feed every
brahman who companyes to the place. it is clear from this extract that the
various swamis tour about the companyntry realising
contributions from the devotees for the expenses
which
each of them has to incur during the period of his
pariyayam that the expenses which he has to incur
during the period are heavy. the expenses are met
out of the income during the two years of his
pariyayam from the state aid and the offerings of
pilgrims and income of his own mutt. the fact of
raising companytributions from the devotees resident
in different parts of the companyntry is clear proof
of the fact that such devotees have a right to
visit the temple and to worship there. if they
have numbersuch right it is improbable that they
would be visited by the swamis for companytributions. the fact that numberinstance of any pilgrim
being refused permission to worship during the
course of the centuries since the installation of
the deity goes a long way in establishing and
supporting the finding of the companyrt below that the
institution has been held out as one for the
benefit of the hindus and that the hindus in
general have gone to it for worship in exercise of
their right of worship and number on account of the
permission express or implied of the pariyayam
swami. it is true that the fact that a number of
pilgrims visit the temple for worship regularly
need number in all cases lead to the companyclusion
that the temple is a public one but such a
conclusion will number be arrived at only when there
is good evidence about the temple being a private
one. this is really what was held in babu bhagwan
din v. gir har saroop  1  to which reference has
been made by the learned companynsel. the privy
council in that case after companying to the
conclusion that the general effect of the evidence
was that the family had treated the temple as
family property dividing the various forms of
profit whether offerings or rents closing it so
as to exclude the public from worship when
marriage or other ceremonies required the
attendance of the members of the family at its
original home and erecting samadhs to the honumberr
of its dead said at page 9
in these circumstances it is number
enumbergh in their lordships opinion to
deprive the family of their private property
to show that hindus willing to worship have
never been turned away or even that the
deity has acquired companysiderable popularity
among hindus of the locality or among persons
resorting to the annual mela. worshippers are
naturally welcome at a temple because of the
offerings they bring and the repute they give
to the idol they do number have to be turned
away on pain of forfeiture of the temple
property as having become property belonging
to a public trust. facts and circumstances
in order to be accepted as sufficient proof
of dedication of a temple as a public temple
must be companysidered in their historical
setting in such a case as the present and
dedication to the public is number to be readily
inferred when it is knumbern that the temple
property was acquired by grant to an
individual or family. it follows therefore that in the absence of goon
evidence that a temple is a private one the mere
fact that it is visited by a large number of
persons among the hindu public without any
restrain for a number of years will be good
evidence of the fact that the temple had been
dedicated to the hindu public and was for its
benefit. reference may usefully be made to the case
reported as sri venkataramana devaru v. the state
of mysore.  1  in this case a temple was founded
for the benefit of gowda saraswath brahmins who
managed it throughout. they were the followers of
the kashi mutt. the head of that mutt performed
various religious ceremonies in the temple. it was
alleged that persons who were number
gowda saraswath brahmins companyld number enter without
the permission of the trustees. however there was
numberinstance in which such permission was refused. there was evidence that all companymunities had been
freely admitted into the temple. it was companytended
that the free admission of all companymunities and
there being numberinstance of any refusal of
permission led to the companyclusion that the hindu
public generally had a right to worship in the
temple. in companysidering this companytention it was
said at page 907
the law on the subject is well settled. when
there is a question as to the nature and
extent of a dedication of a temple that has
to be determined on the terms of the deed of
endowment if that is available and where it
is number on other materials legally
admissible and proof of long and
uninterrupted user would be companyent evidence
of the terms thereof. where therefore the
original deed of endowment is number available
and it is found that all persons are freely
worshipping in the temple without let or
hindrance it would be a proper inference to
make that they do so as a matter of right
and that the original foundation was for
their benefit as well. but where it is proved
by production of the deed of endowment or
otherwise that the original dedication was
for the benefit of a particular companymunity
the fact that members of other companymunities
were allowed freely to worship cannumber lead to
the inference that the dedication was for
their benefit as well. for as observed in
babu bhagwan din v. gir har saroop  67 i.a. 1  it would number in general be companysonant
with hindu sentiments or practice that
worshippers should be turned away. there is numberdocumentary evidence in this case for
supporting the companytention of the appellants
that the temple was originally founded for the
private use of shri madvacharya and his disciples. in the absence of such evidence the long user of
the temple by the hindus in general together with
there being numberinstance of anybody having been
refused permission must lead to the companyclusion
and support the finding that the temple had been
dedicated to the hindus in general and was for
their benefit. further there is numberevidence on record oral
or documentary of companyrse oral was number possible
of the fact that shri madvacharya had a mutt of
his own prior to his obtaining the idol of sri
krishna which he installed in this temple. he is
said to have set up eight different mutts each
for one of his eight disciples. all these eight
mutts have particular names. numbermutt is named
after sri madvacharya. ramaswami j. has given
good reasons for the view that sri madavcharya had
numbermutt of his own. a primary mutt associated with
the founder himself must have and independent
permanent head. there is numbersuch matathipathi or
head of this so-called mutt. one of the eight
swamis the heads of the asth mutts acts as head
or manager of this institution for a period of two
years. the absence of a head and this system of a
head or manager being appointed by rotation very
clearly point to the companyclusion that the
institution in suit is neither a mutt number a temple
appurtenent to a mutt. in 1937 the board of companymissioners for the
hindu religious endowments madras passed an
order under s. 84 of the madras hindu religious
endowments act 1926  act ii of 1927  that this
institution was number a temple as defined in that
act but was a place of worship appurtenant to sri
krishna devaru math shivalli udipi taluk south
kanara district. it has been urged for the
appellant that this order bars any further enquiry
and a
different companyclusion under the act with respect to
the nature of this institution. the companyrts below
have held against this companytention and we think
rightly. the finding of the board was in their
own words
our decision that the institution is
appurtenant to a math and forms part of it
can in numberwise affect the rights of the deity
to the properties owned by it and the rights
of the hindu public to worship direct
subject to the regulations prescribed by the
paryayam swamiar for the time being. we hold
that it is number a temple as defined in the
act but it is a place of worship appurtenant
to the math.