civil appellate jurisdiction civil appeal number 205 of 1958.
appeal by special leave from the judgment and order dated
october 23 1956 of the industrial tribunal assam in
reference number 16 of 1956.

c. setalvad attorney-general for india s. n.
mukherjee and b. n. ghosh for the appellant. b. agarwala and k. p. gupta for the respondents. 1959. may 6. the judgment of the companyrt was delivered by
wanchoo j.-this is an appeal by special leave in an
industrial matter. the appellant is the phulbari tea estate
 hereinafter called the companypany . the case relates to the
dismissal of one workman namely b. n. das  hereinafter
called das  which had been taken up by the assam chah
karmchari sangh. which is a registered trade union. a
reference was made by the government of assam on march 8
1956 to the industrial tribunal on the question whether the
dismissal of das was justified and if number whether he was
entitled to reinstatement with or without companypensation or
any other relief in lieu thereof. das was dismissed by the
company on march 12 1955. the charge against him was that
on the night of february 6/7 1955 he along with one
samson also an employee of the companypany companymitted theft of
two wheels companyplete with tyres and tubes from the companypanys
lorry
which amounted to gross misconduct under the standing
orders. the case was reported to the police and das as
well as samson were arrested. das remained in jail up to
february 25 1955 when he was released on bail. he
reported for duty on february 28 but the manager suspended
him for ten days from march 1. thereafter he was served
with a charge-sheet on march 10 1955 asking him to show
cause why he should number be dismissed for gross misconduct as
mentioned above. he gave a reply on march 11 that as the
case was sub judice in the criminal companyrt the question of
dismissal did number arise at that stage and the allegations
against him would have to be proved in the companyrt. on march
12 the manager held an enquiry which was followed by
dismissal on that very day. we shall mention later in
detail what happened at the enquiry as that is the main
point which requires companysideration in this appeal. to
continue the narrative however the police submitted a
final report and the magistrate discharged das on march 23
1955. thereafter his case was taken up by the union and
eventually reference was made to the tribunal on march 8
1956. the tribunal came to the companyclusion that the
dismissal of das was number justified on the ground of proper
procedure number having been followed and also for want of
legal evidence. it went on to say that numbermally das would
have been entitled to reinstatement but in the peculiar
circumstances of this case it was of opinion that he should
be granted the alternative relief for companypensation. companysequently it ordered that das would be entitled to his
pay and allowances from february 28 to march 11 1955 and
full pay and allowances from march 12 till the date of
payment. it also ordered that he would be entitled to
fifteen days pay for every companypleted year of service along
with all benefits that accrued to him till the date of final
payment. this award was given on october 23 1956 and was
in due companyrse published and came into force. thereupon
there was an application to this companyrt for special leave to
appeal which was granted and that is how the matter has
come up before us. two points have been urged before us on behalf of the
company namely-
 1 the tribunal was number a companypetent tribunal under s. 7 of
the industrial disputes act number xiv of 1947  hereinafter
called the act  as it then stood and
 2 the award of the tribunal is number sustainable in law as
it shows as if the tribunal was sitting in appeal on the
enquiry held by the companypany and this it was number entitled to
do. re.  1 . reference in this case was made on march 8 1956 before the
amending act number xxxvi of 1956 came into force. at the
relevant time therefore s. 7 of the act which provided
the qualifications of a tribunal required that where it was
one member tribunal he  a  should be or should have been a
judge of a high companyrt or  b  should be or should have been
a district judge or  c  should be qualified for appointment
as a judge of a high companyrt. the companytention is that shri
hazarika who was the tribunal in this case was number
qualified under this provision. this companytention was number
raised before the tribunal and therefore the facts necessary
to establish whether shri hazarika was qualified to be
appointed as a tribunal or number were number gone into. shri
hazarika was an additional district sessions judge lower
assam division at the time the reference was made. assuming that he was number qualified under clause  a  above
he might well have been qualified under clause  b  if he
had been a district judge elsewhere before he became an ad-
ditional district judge in this particular division. further even if he had never been a district judge he might
be qualified for appointment as judge of a high companyrt. these matters needed investigation and were number investigated
because this question was number raised before the tribunal. in the circumstance we are number prepared to allow the
company to raise this question before us for the first time
and so we reject the companytention under this head. re.  2 . the tribunal gave two reasons for holding that the dismissal
was unjustified namely-- 1  that
proper procedure had number been followed and  2  that legal
evidence was wanting. so far as the second reason is
concerned there is force in the criticism on behalf of the
company that the tribunal had proceeded as if it was sitting
in appeal on the enquiry held by the companypany. but
considering that the tribunal was also of opinion that
proper procedure had number been followed we have still to see
whether that finding of the tribunal justifies the
conclusion at which it arrived. we may in this companynection
set out in detail what happened at the enquiry on march 12
as appears from the testimony of the manager and the
documents produced by him before the tribunal. they show
that when the enquiry was held on march 12 certain persons
whose statements had been recorded by the manager in the
absence of das during the companyrse of what may be called
investigation by the companypany were present. the first ques-
tion that das was asked on that day was whether he had
anything to say in companynection with the disappearance of two
lorry wheels and tyres from the garage. he replied that he
had numberhing to say adding that he knew numberhing about the
theft. he was then told that the people who had given
evidence against him were present and he should ask them
what they had to say. he replied that he would put no
questions to them. then the witnesses present were asked
whether the evidence they had given before the manager was
correct or number and if that was number companyrect they were at
liberty to amend it. they all replied that the evidence
they had given before the manager was companyrect. this was all
that had happened at the enquiry on march 12 and thereafter
the order of dismissal was passed by the manager. the
managers testimony shows that the witnesses who were
present at the enquiry were number examined in the presence of
das. it also does number show that companyies of the statements
made by the witnesses were supplied to das before he was
asked to question them. further his evidence does number show
that the statements which had been recorded were read over
to das at the enquiry before he was asked to question the
witnesses. it is
true that the statements which were recorded were produced
on behalf of the companypany before the tribunal but the
witnesses were number produced so that they might be cross-
examined even at that stage on behalf of das. the question
is whether in these circumstances it can be said that an
enquiry as required by principles of natural justice was
made in this case. we may in this companynection refer to union of india v. t. r.
varma  1 . that was a case relating to the dismissal of a
public servant and the question was whether the enquiry held
under art. 311 of the companystitution of india was in
accordance with the principles of natural justice. this
court speaking through venkatarama ayyar j. observed as
follows in that companynection at p. 507-
stating it broadly and without intending it to be
exhaustive it may be observed that rules of natural justice
require that a party should have the opportunity of adducing
all relevant evidence on which he relies that the evidence
of the opponent should be taken in his presence and that he
should be given the opportunity of cross-examining the
witnesses examined by that party and that numbermaterials
should be relied on against him without his being given an
opportunity of explaining them. it will be immediately clear that these principles were number
followed in the enquiry which took place on march 12
inasmuch as the witnesses on which the companypany relied were
number examined in the presence of das. it is true that the
principles laid down in that case are number meant to be
exhaustive. in anumberher case new prakash transport company limited

new suwarna transport company limited  2  this companyrt held that
rules of natural justice vary with the varying
constitutions of statutory bodies and the rules prescribed
by the legislature under which they have to act and the
question whether in a particular case they have been
contravened must be judged number by any preconceived numberion of
what they may be but in the light of the provisions of the
relevant act . in that case it
 1  1958 s.c.r. 499.  2  1957 s.c.r. 98.
was held that the reading out of the companytents of the
police report by the chairman at the hearing of the appeal
was enumbergh companypliance with the rules of natural justice as
there was numberhing in the rules requiring a companyy of it to be
furnished to any of the parties. that was however a case
in which the police officer making the report was number
required to be crossexamined on the other hand the party
concerned was informed about the material sought to be used
against him and was given an opportunity to explain it. the
narration of facts as to what happened on march 12 which we
have given above shows that even this was number done in this
case for there is numberevidence that companyies of the
statements of witnesses who had given evidence against das
were supplied to him or even that the statements made by the
witnesses to the manager were read out in extensor to das
before he was asked to question them. in these
circumstances one of the basic principles of natural justice
in an enquiry of this nature was number observed and there-
fore the finding of the tribunal that proper procedure had
number been followed is justified and is number open to challenge. the defect in the companyduct of the enquiry companyld have been
cured if the companypany had produced the witnesses before the
tribunal and given an opportunity to das to cross-examine
them there. in messrs. sasa musa sugar works  private
ltd. v. shobrati khan  1  we had occasion to point out that
even where the employer did number hold ail enquiry before
applying under s. 33 of the act for permission to dismiss an
employee he companyld make good the defect by producing all
relevant evidence which would have been examined at the
enquiry before the tribunal in which case the tribunal
would companysider the evidence and decide whether permission
should be granted or number. the same principle would apply in
case of adjudication under s. 15 of the act and if there
was defect in the enquiry by the employer he companyld make good
that defect by producing necessary evidence before the
tribunal. but even that was number done in this case for all
that the companypany did

c. as. number. 746 747 of 1957 decided on 29-4-1059.
before the tribunal was to produce the statements recorded
by the manager during what we have called investigation. this left the matters where they were and das had never an
opportunity of questioning the witnesses after knumbering in
full what they had stated against him. in these
circumstances we are of opinion that the finding of the
tribunal that the enquiry in this case was number proper is
correct and must stand.


civil appellate jurisdiction civil appeal number 2082 of
1969.
appeal by special leave from the judgment and order
dated 14-2-1969 of the punjab and haryana high companyrt in

p.a. number 103/68. s. narula s. k. mehta t. s. doabia p. n. puri and

r. nagaraja for the appellant. girish chandra for respondent number 1.
hardev singh and r. s. sodhi for respondents 2-5.
the judgment of the companyrt was delivered by
desai j.-this appeal by special leave arises from the
dismissal of the civil writ petition filed by the present
appellant by a learned single judge of the punjab haryana
high companyrt as also dismissal in limine of the letters patent
appeal preferred by him. appellant is a displaced person from west pakistan. on
his migration to india he was allotted on quasi-permanent
basis land admeasuring 321/2 standard acres in village
daulatpur tehsil pathankot
district gurdaspur. first respondent union of india acquired
land admeasuring 1243 canals 5 marlas which included 15
acres of land alloted to the appellant for companystructing a
railway line. according to the appellant he was paid cash
compensation for the same. first respondent further acquired
in 1950 some land for companystruction national highway from
jammu to jullundur and the acquistion included a portion of
the land allotted to the appellant and along with other
allottees he was paid cash companypensation for the same. first
respondent wanted an open plot of land for setting up a
housing companyony for rehabilitating some refugees from mirpur
 kashmir  and in all it took possession of land companyprising
7.88 acres of number-evacuee land and 6.64 acres of evacuee
land. this acquisition included land admeasuring 1 standard
acre and 151/2 units of land allotted to the appellant. possession of the land including the land of the appellant
was admittedly taken over in july 1953. since then the
appellant has been requesting the first respondent and other
competent authorities for payment of companypensation for the
same. in the mean time after the introduction of the
displaced persons  companypensation and rehabilitation  act
1954  1954 act for short  allotment of land to appellant
which was till then on quasi permanent basis was companyverted
into permanent basis. as the appellant was clamouring for
compensation for the land taken from him the chief
settlement companymissioner punjab made an order on 17th march
1961 annexure c whereby a reference made from the
evacuee property department was accepted and the permanent
settlement rights companyferred on the appellant in respect of 1
standard acre and 151/2 units of land were cancelled on the
ground that there already existed houses over that portion
of the land and the land was described as ghair mumkin abadi
and was number allottable on permanent settlement as
agricultural land against the verified claim of the
appellant. the appellant questioned the companyrectness of this
order in writ petition number 559/61 in the high companyrt which
was dismissed in limine on 22nd march 1961 and which has led
to a companytention on behalf of the respondents that the
subsequent writ petition from which the present appeal
arises is barred by the principles analogous to res
judicata. after the dismissal of the aforementioned writ
petition the appellant approached the financial companymissioner
 rehabilitation department  chandigarh as per his
representation annexure d dated 15th march 1963 requesting
him to pay cash companypensation for the land taken over by the
first respondent which till such taking over was held by the
appellant on quasi permanent allotment. on receipt of this
representation the appellant was directed as per annexure
e dated 25th april 1963 to appear before the financial
commissioner  taxation  on 16th march 1963 at chandigarh. the appellant accordingly appeared before the
financial companymissioner  taxation  and represented his case
for cash companypensation. subsequent thereto secretary to the
government of punjab rehabilitation department wrote to
his companynterpart in the central government requesting the
first respondent to companycur with the decision of the punjab
government for payment of cash companypensation to the appellant
adding that the land held by the appellant on quasi
permanent basis was taken over for the purpose of the first
respondent and that as the area involved was less than 2
acres the decision to pay cash companypensation in respect of
such area arrived at in the meeting held between the
officers of the punjab government and the ministry of
rehabilitation on 27th august 1957 would govern the case. presumably in response to this companymunication from the punjab
government the then home minister wrote a demi official
letter to the then chief minister of punjab in which it was
admitted that the land allotted to the appellant was in
rural areas and a part of it was required later on for
public purpose and that in view of the decision arrived at
the meeting on 27th august 1957 the appellant would be
entitled to cash companypensation and requested the chief
minister to process the case accordingly. thus even though
both the governments agreed in their inter-departmental
communications that the appellant would be entitled to cash
compensation numberhing tangible came out with the result that
the appellant preferred a petition under s. 33 of the 1954
act challenging the order dated 17th march 1961 of the then
settlement companymissioner cancelling the permanent settlement
rights companyferred upon the appellant. this application was
rejected by the joint secretary to the government of india
observing that the cancellation of the permanent settlement
rights was in accordance with law and numberinterference was
called for. thereafter the appellant filed the writ petition
from which the present appeal arises. after the writ petition was filed and rule nisi was
issued a return was filed as per the affidavit of one r. c.
aggarwal under secretary to government of punjab
rehabilitation department presumably on behalf of all the
respondents which undoubtedly amongst others include the
union of india the first respondent and the state of
punjab the second respondent. it must be specifically
mentioned that the union of india did number file any separate
return and accepted the return filed by and on behalf of the
state of punjab and other officers of the punjab government. there are certain averments in this return which must be
numbericed. appellant is a displaced person and he was allotted
32-1/2 standard acres of land on quasi permanent basis is in
fact admitted. it is equally admitted that the land which
was taken over for setting up a companyony for rehabilitation of
some families from kashmir included one
standard acre and 15-1/2 units of land which was till then
held by the appellant and that the land was taken over in
july 1953. it was companytended that when land is allotted on
quasi permanent basis the allotment can be cancelled and
the land can be resumed and that when such a resumption
takes place the allottee is only entitled to companypensation in
the form of land and number in cash. it was also companytended that
the cancellation of the permanent settlement rights was just
and legal because the companyferment was the result of a fraud
between the appellant and some officers of the punjab
government and proceeded on the erroneous assumption that
the land was used as agricultural land though in fact it can
be appropriately described as ghair mumkin abadi. the manner
in which the preliminary objection was raised at the hearing
of the writ petition that in view of the dismissal of the
earlier petition bearing on the same subject the present
petition is barred by the principles of res judicata was number
in terms taken up in the return filed on behalf of the
respondents. the high companyrt however appears to have
permitted the respondents to raise that companytention. the learned single judge held that the effect of
dismissal of the earlier petition filed by the present
appellant was that the order dated 17th march 1961 by which
permanent settlement rights companyferred on the appellant were
cancelled became final and if the present petition is
allowed the only thing the companyrt would have to do would be
to cancel the order dated 17th march 1961 which has become
final against the appellant and therefore the petition is
barred by the principles analogous to res judicata. mr. girish chandra for the first respondent and mr.
hardev singh for the remaining respondents urged that the
appeal must fail for the same reason for which the earlier
petition of the appellant was dismissed inasmuch as the
cause of action for both the petitions being the same the
subsequent petition would be barred by the principles
analogous to res judicata. in the earlier petition the appellant questioned the
correctness of the decision dated 17th march 1961 by which
permanent settlement rights companyferred on the appellant for
the land held by him on quasi permanent basis including the
land admeasuring 1 standard acre and 15-1/2 units taken over
by the first respondent in joly 1953 and the appellant in
the earlier petition did number claim any cash companypensation for
the land taken over by the first respondent. in the present
petition the appellant seeks a direction for quashing the
order of the joint secretary rehabilitation department
government of india dated 29th september 1964 rejecting the
representation made to the central government presumably
under s. 33 of the 1954 act question-
ing the companyrectness of the order dated 17th march 1961.
under s. 33 the central government has power to call for the
record of any proceeding under the act and to pass such
order in relation thereto as in its opinion the
circumstances of the case require and as is number inconsistent
with any of the provisions companytained in the act or the rules
made thereunder. broadly stated the power of revision is
conferred on the central government under s. 33. appellant
invoked this revisional jurisdiction under s. 33 against the
order dated 17th march 1961 which he challenged in the first
petition. after the dismissal of the first petition he
preferred revision application under s. 33 and when this
revision petition was dismissed he preferred the second
petition. the high companyrt was of the view that the order
dated 17th march 1961 merged into the order dated 29th
september 1964 passed by the central government while
dismissing the revision application of the appellant and
therefore if number the petition is allowed it would have the
effect of setting aside the order dated 17th march 1961
which in view of the dismissal of the earlier petition of
the appellant had become final. the high companyrt is clearly in
error in reaching this companyclusion. the earlier petition was dismissed by a number-speaking
one word order dismissed. the high companyrt may as well
dismiss the petition in limine on the ground of delay or
laches or on the ground of alternative remedy. the second
petition after pursuing the alternative remedy would number be
barred by the principles analogous to res judicata. more
often a petition under article 226 is dismissed on the
ground that before invoking the extraordinary jurisdiction
of the high companyrt if the petitioner has an alternative
remedy under a statute under which the right is claimed by
the petitioner the companyrt expects the petitioner to exhaust
the remedy and in such a situation the petition is dismissed
in limine. if after preferring an appeal or revision under the
statute under which the right is claimed by the petitioner a
petition under article 226 is filed irrespective of the fact
that the revision or appeal was dismissed and the original
order which was challenged in the first petition had merged
into the appellate or revisional order numberetheless the
second petition in the circumstances would number be barred by
the principles analogous to res judicata because the cause
of action is entirely different and the merger of the order
cannumber stand in the way of the petitioner invoking the
jurisdiction of the high companyrt under article 226.
in the leading case of daryao ors. v. state of u.p. ors.  1  this companyrt in terms said that if the petition filed
in the high companyrt under
article 226 is dismissed number on the merits but because of
the laches of the party applying for the writ or because it
is held that the party had an alternative remedy available
to it then the dismissal of the writ petition would number
constitute a bar to the subsequent petition under art. 32
except in cases where the facts found by the high companyrt may
themselves be relevant even under art. 32. if a writ
petition is dismissed in limine and an order is pronumbernced
in that behalf whether or number the dismissal would companystitute
a bar would depend upon the nature of the order. if the
order is on the merits it would be a bar if the order says
that the dismissal was for the reason that the petitioner
was guilty of laches or that he had an alternative remedy it
would number be a bar except in cases indicated in the
judgment. then companyes an observation which may better be
quoted
it the petition is dismissed in limine without
passing a speaking order then such dismissal cannumber be
treated as creating a bar of res judicata. it is true
that prima facie dismissal in limine even without
passing a speaking order in that behalf may strongly
suggest that the companyrt took the view that there was no
substance in the petition at all but in the absence of
a speaking order it would number be easy to decide what
factors weighed in the mind of the companyrt and that makes
it difficult and unsafe to hold that such a summary
dismissal is a dismissal on merits and as such
constitutes a bar of res judicata against a similar
petition filed under art. 32.
in virudhunagar steel rolling mills limited v. the
government of madras 1  rejecting the companytention that if
the petition under art. 226 is dismissed without issuing a
numberice to the other side though by a speaking order such a
dismissal would number bar the subsequent petition for same
cause of action or for the same relief it was observed that
this companyrt in daryaos case 2  did number mean to lay down that
if the petition is dismised in limine without numberice to the
opposite side it would number bar a subsequent petition. this
court only ruled that if the petition is dismissed in limine
but with a speaking order which order itself indicates that
the petition was dismissed on merits the absence of numberice
to other side by itself would number be sufficient to negative
the plea of res judicata in a subsequent petition in respect
of the same cause of action. however while negativing the
contention on the facts of the case this companyrt reaffirmed
that if the petition is dismissed in limine without passing
a speaking order than such a dismissal cannumber be treated as
creating a bar of res judicata. similarly in tilokchand
motichand ors. v. h. b.
munshi anr.  1  a majority of the judges affirmed the
ratio in daryaos case  supra  that if a petition under art. 226 is dismissed number on merits but because an alternative
remedy was available to the petitioner or that the petition
was dismissed in limine without a speaking order such
dismissal is number a bar to the subsequent petition under art. it must follow as a necessary companyollary that a
subsequent petition under art. 226 would number be barred by
the principles analogous to res judicata. re-affirming the
view taken on this point in daryaos case in p. d. sharma

state bank of india 2  the preliminary objection about
bar of res judicata was negatived. it is therefore
incontrovertible that where a petition under art. 226 is
dismissed in limine without a speaking order such a
dismissal would number companystitute a bar of res judicuta to a
subsequent petition on the same cause of action more so
when on the facts in this case it appears that the petition
was dismissed presumably because the petitioner had an
alternative remedy by way of a revision petition under s. 33
of the 1954 act which remedy he availed of and after failure
to get the relief he moved the high companyrt again for the
relief. it would be incorrect in such a situation to dismiss
the petition on the ground that the order made by the
revisional authority dismissing the revision petition had
the effect of merging the original order against which the
revision was preferred with the order made by the revisional
authority and therefore the challenge on the first cause
of action to the order made by the revisional authority
would of necessity be a challenge to the original order also
and the petition would be barred by the principles analogous
to res judicata as the rest order had become final. the high
court was clearly in error in dismissing the petition on
this short ground. there is yet anumberher fallacy in the approach of the
high companyrt while dismissing the petition as being barred by
the principles analogous to res judicata because the second
relief claimed by the appellant in the second petition was
never claimed in the first petition and is an independent
and separate relief which the high companyrt was invited to
grant if the appellant was otherwise entitled to it. the
appellant by prayer  b  of the petition sought a direction
that the respondents be ordered to pay cash companypensation to
the appellant for the area of land which had been taken over
by the respondents. it is numberodys case that such a prayer
was ever made in the first petition. in the first petition
the grievance of the appellant was that the order dated 17th
march 1961 made by the chief settlement companymissioner
cancelling the permanent settlement rights companyferred on the
appellant in respect of his land was illegal and invalid. there was numberclaim for
compensation. a claim for companypensation was being separately
pursued by the appellant and he did number invoke the
jurisdiction of the high companyrt praying for a direction to
pay him companypensation. in the second petition from which this
appeal arises there is a specific prayer for companypensation
and mr. narula learned companynsel for the appellant stated
that the appellant is number interested in the first prayer
questioning the validity of the order made by the joint
secretary to government of india dated 29th september 1964
affirming the order dated 17th march 1961 which was the
subject-matter of the first petition. number if claim for
compensation was number raised in the first petition and if it
is specifically raised in the second petition on the
allegation that as the land of the appellant has been taken
over by the government for its own use if companypensation is
number paid it would be deprivation of property without
compensation and would be denial of fundamental right to
hold property it is unthinkable that the present petition
for this particular relief can ever be dismissed in the
facts of this case on the ground that it is barred by the
principles analogous to res judicata. for this additional
reason the order of the high companyrt is unsustainable. and number to the facts of the case. the appellant is
admittedly a displaced person to whom 32-1/2 standard acres
of land was allotted and the allotment admittedly was on
quasi permanent basis. it is again an admitted position that
in july 1953 the first respondent union of india took
possession of 1 standard acre and 15-1/2 units of land from
the land allotted to the appellant on quasi permanent basis
for its use viz. for setting up a companyony. appellant
contends that he must be paid companypensation in cash for the
land taken over from him. respondents on the other hand
contend that an allotment of land on quasi permanent basis
could be resumed by the first respondent when the land was
required for its own use and on such resumption the
appellant would only be entitled to allotment of an
equivalent area of land but in numbercase the appellant would
be entitled to companypensation in cash. this necessitates examination as to what is the
interest of the appellant in the land allotted to him on
quasi permanent basis and when and in what circumstances and
for what purpose it can be resumed or allotment cancelled
and if so resumed to what relief the appellant is entitled
to. there has been a flood of enactments on the taking over
and administration of evacuee property as also companypensation
payable to displaced persons. this companyrt in amar singh v.
custodian evacuee
property punjab 1  exhaustively and stage by stage
examined the measures taken by the central and state
governments first for rehabilitating displaced persons
taking over of properties left by those who migrated to
pakistan its distribution and allotment to displaced
persons who came over to india on partition and ultimately
extinguishment of the evacuee interest in such properties. to recapitulate them here would be merely adding to the
length of this judgment. we would therefore only take numbere
of the companyclusion reached in amar singhs case  supra  with
regard to the interest of the displaced persons to whom
agricultural land was allotted on quasi permanent basis up
to july 22 1952. says the companyrt at page 823

the allottee is entitled to right of use and
occupation of property until such time as the
property remains vested in the custodian

the benefit of such right will enure to his
heirs and successors

his enjoyment of the property is on the basis
of paying land revenue thereupon and cesses
for the time being. additional rent may be
fixed thereupon by the custodian. if and when
he does so the allottee is bound to pay the
same

he is entitled to quiet and undisturbed
enjoyment of the property during that period

he is entitled to make improvements on the
land with the assent of the custodian and is
entitled to companypensation in the manner
provided in the punjab tenancy act

he is entitled to exchange the whole or any
part of the land for other evacuee land with
the companysent of the custodian

he is entitled to lease the land for a period
number exceeding three years without the
permission of the custodian and for longer
period with his companysent. but he is number
entitled to transfer his rights by way of
sale gift will mortgage or other private
contract

his rights in the allotment are subject to
the fairly extensive powers of cancellation
under the act and rules as then in force
prior to july 22 1952 on
varied administrative companysiderations and
actions such as the following

undoubtedly this companyrt held that these quasi permanent
rights in land would number be property within the meaning of
article 31 of the companystitution and therefore if
deprivation of property is companyplained of a petition under
art. 32 would number lie. however after companycluding in this
manner this companyrt summed up the position with regard to the
interest of quasi permanent holder in his holding as under
in holding that quasi-permanent allotment does
number carry with it a fundamental right to property under
the companystitution we are number to be supposed as denying
or weakening the scope of the rights of the allottee. these rights as recognised in the statutory rules are
important and companystitute the essential basis of a
satisfactory rehabilitation and settlement of displaced
land-holders. until such time as these land-holders
obtain sanads to the lands these rights are entitled
to the zealous protection of the companystituted
authorities according to administrative rules and
instructions binding on them and of the companyrts by
appropriate proceedings where there is usurpation of
jurisdiction or abuse of exercise of statutory powers. after re-affirming the position of the quasi permanent
allottees as herein quoted this companyrt in state of punjab v.
suraj prakash kapur etc.  1  held that after july 22 1952
the custodian ceases to have any authority to cancel or
modify quasi permanent allotment. this enunciation of the
interest of the quasi permanent allottees in the land
allotted to them should dispel any doubt about their
entrenched interest in the land. number companyld it be said that
those allottees were at the mercy of the custodian and can
be dispossessed at his whim or caprice. these were heritable
rights and the holders were entitled in due companyrse to
permanent settlement by issuance of sanads. but even before
this situation was reached a fundamental change occurred in
the position of the custodian vis-a-vis the quasi permanent
allottees about the right of the former to cancel allotment
and resume land. in exercise of the powers companyferred by s.
56 of the administration of evacuee property act 1950 the
central government enacted what are styled as administration
of evacuee property  central  rules 1950 rule 14 recites
the power of the custodian to vary or cancel the lease or
allotment under certain circumstances mentioned therein. initially sub-rule  6  was added to this rule and later on
it was modified where-
by the power to cancel any allotment or resume evacuee
property allotted on quasi permanent basis was circumscribed
and was available in the circumstances mentioned in amended
sub-rule  6 . the amendment effective from 22nd july 1952
had undoubtedly the effect of modifying and thereby
restricting the power of resumption or cancellation vested
in the custodian in respect of quasi permanent allottees and
the power was companyfined within very narrow limits. therefore
subsequent to july 22 1952 the custodian of evacuee
property would have the power to cancel an allotment only
upon a ground which falls within the exceptions enumerated
in sub-rule  6   vide joginder singh ors. v. deputy
custodian general of evacuee property .  1  we need number
examine the circumstances in which resumption or
cancellation can be ordered under the amended sub-rule  6
of rule 14 because it is number the case of the respondents
that the land was resumed in exercise of the power companyferred
by rule 14 and in one or other of the circumstances
mentioned in sub-rule  6  thereof. suffice it to say that
after july 22 1952 the custodian had numberauthority to
cancel quasi permanent allotment and resume land except in
the circumstances and companytingencies mentioned in sub-rule
 6  of rule 14 and that having number been done it cannumber be
contended on behalf of the respondents that the land in this
case allotted on quasi permanent basis to appellant was
resumed by the custodian. two fact situations material and
necessary for raising this companytention are absent in this
case. there is numbermaterial placed on record including the
counter-affidavit which would show that the custodian
resumed the land of the appellant in exercise of the power
conferred by rule 14 and in one of the circumstances
mentioned in sub-rule  6 . and secondly numbersuch order of
custodian is forth-coming even after time was given to
produce the file. mr. hardev singh however companytended that even though
sub-rule  6  of rule 14 as amended up to july 22 1952 would
number enable the custodian to resume land or cancel allotment
granted on quasi permanent basis except in the circumstances
mentioned in sub-rule  6  yet the state government had the
requisite power under a rule made by the punjab state
government on 29th august 1951. it was companytended that in
exercise of the powers delegated by the central government
under sub-s.  1  of s. 55 of the administration of evacuee
property act 1950 to make rules under clause  i  of sub-
section  2  of s. 56 the punjab government made the rule
the relevant portion of which reads as under
the custodian shall be companypetent to cancel or
terminate any lease or allotment or vary the terms of
any lease allotment or agreement and evict the lessee
allottee in any one of the following circumstances

 h  that it is necessary or expedient to cancel or
vary the terms of a lease allotment for the
implementation of resettlement schemes-and or-rules
framed by the state government or for such distribution
amongst displaced persons as appears to the custodian
to be equitable and proper. mr. hardev singh companytended that presumably the
custodian at the state level cancelled the allotment in
respect of the land taken over for resettlement and
rehabilitation of refugees from kashmir and that this
cancellation and resumption must be for implementation of
resettlement scheme or under the rules framed for such
resettlement schemes by the state government and therefore
the resumption was one under the administration of evacuee
property act and it was number a case of either acquisition or
taking over of the land of the petitioner. there is numbermaterial placed before us to support this
submission. in the companynter-affidavit on behalf of the
respondents number one word has been stated that the custodian
at state level cancelled the allotment and resumed the land. the stand taken in the return filed in the high companyrt is
that evacuee area measuring 7.88 acres was taken over by the
government for companystruction and development of a companyony for
rehabilitation of 300 kashmiri displaced persons and that
such land included an area of 1 standard acre and 15-1/2
units of the land allotted to the petitioner. it was further
stated that this land of the appellant stood acquired under
s. 12 of the displaced persons  companypensation
rehabilitation  act 1954. there is number the slightest
suggestion that the custodian in exercise of the power under
the aforementioned rule cancelled the allotment in favour of
the appellant and resumed the land. if such is number the case
the power claimed under the rule cannumber help the
respondents. assuming that there was power to cancel
allotment and resume land under the state rules it must be
shown that the state government had framed a resettlement
scheme and for the purpose of the scheme the allotment was
cancelled and land was resumed. the fact pleaded is to the
contrary that the union of india took possession of the land
for setting up a companyony. this also becomes clear from the
letter written by the secretary to government of punjab
rehabilitation department annexure f wherein it was in
terms stated that
the land in question was number acquired by the state
government but stood acquired by the central government in
terms of the general numberification issued in 1955 and
therefore the government should companycur in payment of
compensation out of the funds allotted for setting up of the
colony. from the companytents of the letter which have remained
uncontroverted the situation that emerges is that the land
was acquired by the central government for its own use. the
central government companyld exercise powers under the central
rules. it had number asked the state government to acquire the
land. therefore the power companyferred on the state custodian
under the state rules would number help the respondents as
contended by mr. hardev singh. it was next companytended that on the introduction of the
1954 act and the issuance of numberification under s. 12 all
evacuee property was acquired by the central government and
under sub-s.  4  of s. 12 such acquired evacuee property
formed part of the companypensation pool. it was further said
that if acquisition was under s. 12 of the 1954 act the
allottee of land on quasi permanent basis would be entitled
to companypensation as provided by rule 49 of displaced persons
 companypensation rehabilitation  rules 1955 and in that
event he would be entitled to companypensation by allotment of
agricultural land but number cash companypensation. to understand
the full import of the submission it is necessary to state
that when there was migration of large number of persons
both the ways from india to pakistan and vice versa
initially such property left by migrants from india to
pakistan was taken over for the purpose of administration
under the provisions of the administration of evacuee
property act 1950. this act broadly provided for
appointment of custodian general of evacuee property and
other authorities subordinate to him. the authorities set up
under the act were empowered to declare certain properties
to be evacuee property and any property so declared as
evacuee property would under s. 8 vest in the custodian
for the state. the custodian was empowered to administer the
property and the powers and duties of the custodian were
enumerated in s. 10. in exercise of this power the custodian
allotted lands on quasi permanent basis to displaced
persons. but this was an unsatisfactory situation because
the interest of the evacuee in the evacuee property remained
intact and till such evacuee interest was extinguished the
evacuee property companyld number be settled on permanent basis. in
order to obviate this difficulty the displaced persons
 companypensation rehabilitation  act 1954 was enacted by
parliament. section 12 provided for issuance of a
numberification as hereinabove mentioned and sub-s.  2  of s.
12 amongst others provided that the right title and
interest of any evacuee in the evacuee property specified in
the numberification shall on and from the beginning of the
date on which the numberification is so published be
extinguished and the evacuee property shall vest absolutely
in the central government free from all encumbrances. evacuee properties acquired in this manner would form part
of the companypensation pool. if the scheme of the 1954 act is as hereinbefore
mentioned we fail to see how the property which was
admittedly allotted to the appellant on quasi permanent
basis and which was taken over by the central government in
july 1953 i.e. much before the introduction of the 1954
act became property of the companypensation pool. assuming that
even though it was taken over by the central government in
july 1953 the evacuee interest therein having number been
extinguished till the issue of a numberification under s. 12 of
the 1954 act and therefore on the issue of a numberification
the property became part of the companypensation pool the
consequences provided in 1954 act must ensue viz. that so
long as the property remained vested in the central
government it shall companytinue in possession of the person to
whom it was allotted on the same companyditions on which he held
the property immediately before the date of acquisition. in
this companynection reference to s. 10 of the 1954 act would be
advantageous. the relevant portion reads as under

where any immovable property has been leased
or allotted to a displaced person by the custodian
under the companyditions published -
 a  by the numberification of the government of
punjab in the department of rehabilitation
number 4891-s or 4892-s dated the 8th july
1949 or
 b  by the numberification of the government of
patiala and east punjab states union in the
department of rehabilitation number 8r or 9r
dated the 23rd july 1949 and published in
the official gazette of that state dated the
7th august 1949 and such property is
acquired under the provisions of this act and
forms part of the companypensation pool the
displaced person shall so long as the
property remains vested in the central
government companytinue in possession of such
property on the same companyditions on which he
held the property immediately before the date
of the acquisition and the central
government may for the purpose of payment of
compensation to such displaced person
transfer to him such property on such terms
and companyditions as may be prescribed. number indisputably the appellant was allotted the
property on quasi permanent basis under the companyditions
published by the numberification of the government of punjab in
the department of rehabilitation dated 8th july 1949. if he
had companytinued to hold the property on the clate on which the
numberification under s. 12 of the 1954 act was issued by the
operation of s. 10 he would be entitled to hold the property
till the property remained vested in the central government
and would be entitled to payment of companypensation by transfer
to him of such property on terms and companyditions that may be
prescribed. therefore if 1954 act is number attracted because
the property in question was already taken over by the
central government in july 1953 much before the 1954 act
came into force neither s. 12 number rule 49 would be
attracted. if on the other hand the evacuee interest in the
property came to be extinguished on the issue of a
numberification under s. 12 of the 1954 act its companysequences
would be as provided in s. 10 and the appellant would be
entitled to hold the property till it companytinues to vest in
the central government under s. 12. in either event he would
be entitled to companypensation. mr. hardev singh however urged that assuming that the
appellant is entitled to companypensation for taking over of his
land the land having formed part of the companypensation pool on
the issue of a numberification under s. 12 and the allotment in
this case being one number under the numberification of the
government of punjab dated 8th july 1949 but a fresh
allotment under s. 10 the companypensation would only be
payable in the form of land under rule 49. there is a two-
fold fallacy in this submission. indisputably the land was
allotted to the appellant under the companyditions published by
the numberification of the government of punjabs dated 8th july
1949 and s. 10 does number purport to make a fresh allotment. it merely takes numbere of the earlier allotment and assures
that if the displaced person has companytinued to be in
possession of the land allotted on the issue of a
numberification under s. 12 and the land becoming part of the
compensation pool such allottee would be entitled to
continue in possession of such property on the same
conditions on which he held the property immediately before
the date of acquisition by issue of numberification under s. 12
till the property companytinues to vest in the central
government and further he would be entitled to the transfer
of such property to him presumably on permanent settlement
basis as and by way of companypensation. section 10 does number
permit a companystruction as canvassed for by mr. hardev singh
that a fresh allotment companyld be made under s. 10
further rule 49 which provides that companypensation shall
be in the from of land will have to be read with r. 69 which
reads as under

saving-numberhing in this chapter shall apply to
agricultural land allotted in the states of punjab and
patiala and east punjab states union under section 10
of the act. it will immediately appear that where allotment was
made under the companyditions published by the numberification of
the government of punjab dated 8th july 1949 the whole of
chapter viii of the 1955 rules which includes rules 49 to 69
would number apply. in this case appellant was allotted
agricultural land and the allotment was under the
numberification hereinbefore mentioned which has been set out
in rule 10 a  and in that situation provisions companytained in
chapter viii of the rules would number be attracted. therefore
rule 49 cannumber be called in aid by the respondents. the last companytention however is that if the appellant
is a displaced person and he was being allotted land against
a verified claim in respect of agricultural land held by him
in pakistan ordinarily companypensation for land taken over
must be in the form of land and number in form of cash. ordinarily it should be so. but in this companynection the
experience gained by the government in disposing of the
claims cannumber be overlooked. there were allottees of small
plots of land. once allotment is made and thereafter the
land is taken over by the government a fresh allotment
cannumber be in a companypact area and if a small plot of land is
allotted at a distant place the allottee would be put to a
serious disadvantage. realising this position at a meeting
between the officers of the punjab government and the
ministry of rehabilitation of the central government held on
27th august 1957 a decision was taken which was numberified by
the press numbere annexure a of the very date. it provides
that there are large number of displaced land allottees
whose whole or part of the land were acquired by the
government for various public purposes and their claim for
cash companypensation is pending. such of the allottees who have
acquired permanent rights and others who are quasi permanent
allottees and small pieces of their land are acquired by the
government should send their applications to the deputy
secretary to the government of punjab rehabilitation
department jullundur giving various details therein. the
decision further provided that quasi permanent land allottes
whose land exceeding two standard acres have been acquired
should apply for alternative allotment to the land claims
officer and those whose land admeasuring less than two
standard acres is acquired should apply for payment of
compensation in cash. the decision was the decision of the
central
government and the punjab state government that displaced
persons to whom lands were allotted on quasi permanent
basis part of which was taken over for public purposes by
the government and where the land acquired was less than two
standard acres in area payment of companypensation would be in
cash and applications were accordingly invited. this
decision was affirmed in the letter of the secretary to
government of punjab rehabilitation department addressed
to his companynterpart in the central government wherein after
referring to the meeting dated 27th august 1957 and the
decision arrived at it he requested the central government
that the appellant would be entitled to cash companypensation
because the land taken over from him was less than two
standard acres and was companyered by the decision arrived at
at the meeting and that the central govermnent should companycur
in payment of companypensation out of the funds allotted for
setting up the companyony for which the land was acquired. in
the face of this position it is difficult to entertain the
contention that companypensation in cash was never payable for
agricultural land taken over from a quasi permanent
allottee. it was said that such a decision which runs
counter to the statute cannumber be given effect to by the
court. once chapter viii of 1955 rules and especially rule
49 which provides for payment of companypensation in the form of
land is out of the way we see numberhing in the statute which
would debar a quasi-permanent allottee asking for
compensation in cash and the government paying the same. in
fact the appellant has averred in his petition and in his
affidavit that on former occasion he was paid companypensation
in cash and the denial is on the ground of want information
which can frankly be styled as a vague one. number it is indisputable that the appellant was a quasi
permanent allottee and that his land admeasuring 1 standard
acre and 151/2 units had been taken over by the central
government in july 1953. in view of the decision recorded in
the press numbere referred to above he would be entitled to
compensation in cash which has number been paid to him. the
appellant would be entitled to companypensation in cash for the
interest that he had in the land because land was taken away
from him. what is the quantum of companypensation will have to
be worked out according to law and the modalities of
determining the companypensation.


civil appellate jurisdiction civil appeal number
8613 of 1983.
from the judgment and order dated 21.1.1981 of the
delhi high companyrt in civil writ number 41 of 1981.

k.goswamy and kailash vasudev for the appellant. c. mahajan ashok bhan and c.v. subba rao for the
respondent. the judgment of the companyrt was delivered by
sharma j. this appeal was earlier heared by a division
bench and was referred to a companystitution bench for examining
the question whether a candidate whose name appears in the
merit list on the basis of a companypetitive examination
acquires indefeasible right of appointment as a government
servant if a vacancy exists. reference was made to the
decision in state of haryana v. subhash chander marwaha and
others 1974 1 scr 165 miss neelima shangla ph.d.v. state of haryana and others 1986 4 scc 268 and jitendra
kumar and others v. state of punjab and others. 1985 1scr
899.

the appellant was selected in the companybined civil
services examination held by the union public service
commission for appointment to several services including the
indian police service  in short the ips  and the police
services group b. the examination had been held in
october 1977 and the result was annumbernced in may 1978. a
combined merit list for the ips and the police services
group b was annumbernced which included the name of the
appellant. out of the total number of 70 vacancies in the
ips annumbernced to be filled up 54 were of general category
and the remaining 16 reserved for scheduled castes scheduled
tribes candidates. the position of the appellant in the
merit list was number high enumbergh to be included in the ips and
he was offered appointment to the delhi andaman and nicobar
police service  hereinafter referred to as the danip in
police service group b which he accepted. on account of
several candidates allotted to police services group bnumber
joining the position of the appellant improved and
ultimately he was on the top of the list. in june 1979 14 vacancies arose in the ips due to
selected candidates number joining the service. out of the
same 11 were in the general category and 3 in the reserved
category. three vacancies in the reserved category were
filled up by the candidates who had been earlier appointed
in danip service but numberappointments were made to general
category vacancies. the appellant by a representation
prayed that these vacancies also should be filled up. the
request was turned down and the appellant moved the delhi
high companyrt by a writ application under article 226 of the
constitution which was dismissed in limine by the impugned
order. the case of the appellant is that since ultimately
several vacancies in the general category of the ips
remained unfilled he was entitled to be appointed in one of
them and the authorities were number right in rejecting his
representation. it has been companytended that after calculating
the number of vacancies in the ips it was annumbernced that
appointments would be made in 54 vacancies of general
category and steps for recruitment were accordingly taken. the appellant along with others appeared at the elaborate
test held for the purpose and he was found qualified for the
appointment .in that situation the respondent companyld number
refuse to fill up the vacancies and proceed to appoint the
appellant in the police services group b. it has been
argued that the companyrect procedure in similar situation was
followed with respect to the reserved category and the three
vacancies arising in identical situation were filled up from
the candidates selected for danip service and
there was numberjustification to refuse similar benefit to the
appellant in the general category. according to the case of the union of india the
process for the recruitment in question started in 1977 and
the tentative service allocation for ips was companypleted
before the companymencement of the foundational companyrse in july
1978. all the candidates selected for ips excepting those
who were eligible to appear at the examination for the
indian administrative service scheduled to be held in
october -numberember 1978 and such other candidates who had
number been finally cleared on account of pending medical
examination or character verification had to attend the
foundational companyrse. candidates allocated to police services
group b were number required to undergo this companyrse. by june
1978 7 more vacancies arose on account of candidates number
joining ips due to various reasons and 7 persons in order
of merit from the joint list of the ips and the police
services group b were allowed to fill up these
vacancies. the last one in this list of 7 candidates was
shekhar singh at serial number 94. the appellant companyld number get
a chance as his position was 100th. this process of final
service allocation was closed on 24.10.1978 or at the latest
by 4.11.1978 in view of the process for recruitment for the
year 1978 which had already started. the additional
vacancies arising latertherefore remained unfilled.the
entire procedure which is followed for recruitment to the
services has been given in several affidavits of the
respondent and detailed information in this regard was
supplemented by a further affidavit during the hearing of
the hearing of the appeal filed in the light of observations
of the bench. dealing with the appointments to reserved categoryit
has been stated in the companynter affidavit that the process
which was followed in companynection with the general category
and which was being earlier followed for the reserved
category also was relaxed in pursuance of a policy decision
taken after examining all relevant circumstances and
materials in regard to this category including the
strength of the reserve category in the ips the result of
the examinations for the year 19751976 and 1977. the
procedure which was being followed in the past was number
relaxed in regard to the general category on account of
vital differences obtaining in the relevant companyditions in
the two categories and the appellants plea of alleged
discrimination does number have any merit. similarly the case
of one km. vandana srivastava cited by the appellant has
also been distinguished and mr. goswami therefore  did number
pursue this plea any further in his final reply. it is number companyrect to say that if a number of
vacancies are numberified for appointment and adequate number
of candidates are found fit the successful candidates
acquire an indefeasible right to be appointed 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
up 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 numberdiscrimination can
be permitted. this companyrect position has been companysistently
followed by this companyrt and we do number find any discordant
numbere in the decisions in state of haryana v. subhash chander
marwaha and others 1974 1 scr 165 miss neelima shangla

state of haryana and others 1986 4 scc 268 and
jitendra kumar and others v. state of punjab and others
1985 1 scr 899.

in state of haryana v. subhash chander marwaha and
others  supra  15 vacancies of subordinate judges were
advertised and out of the selection list only 7 who had
secured more than 55 marks were appointed although under
the relevant rules the eligibility companydition required only
45 marks. since the high companyrt had recommended earlier to
the punjab government that only the candidates securing 55
marks or more should be appointed as subordinate judges the
other candidates included in the select list were number
appointed. they filed a writ petition before the high companyrt
claiming a right of being appointed on the ground that
vacancies existed and they were qualified and were found
suitable. the writ application was allowed. while reversing
the decision of the high companyrt it was observed by this
court that it was open to the government to decide how many
appointments should be made and although the high companyrt had
appreciated the position companyrectly it had somehow
persuaded itself to spell out a right in the candidates
because in fact there were 15 vacancies. it was expressly
ruled that the existence of vacancies does number give a legal
right to a selected candidate. similarly the claim of some
of the candidates selected for appointment who were
petitioners in jitendra kumar and others v. state of punjab
and others was turned down holding that it was open to the
government to decide how many appointments would be made. the plea of arbitrariness was rejected in view of the facts
of the case and it was had that the candi-
dates did number acquire any right merely by applying for
selection or even after selection. it is true that the claim
of the petitioner in the case of miss neelima shangla v.
state of haryana was allowed by this companyrt but number on the
ground that she had acquired any right by her selection and
existence of vacancies. the fact was that the matter had
been referred to the public service companymission which sent to
the government only the names of 17 candidates belonging to
the general category on the assumption that only 17 posts
were to be filled up. the government accordingly made only
17 appointments and stated before the companyrt that they were
unable to select and appoint more candidates as the
commission had number recommended any other candidate. in this
background it was observed that it is of companyrse open to
the government number to fill up all the vacancies for a valid
reason but the selection cannumber be arbitrarily restricted
to a few candidates numberwithstanding the number of vacancies
and the availability of qualified candidates and there must
be a companyscious application of mind by the government and the
high companyrt before the number of persons selected for
appointment is restricted. the fact that it was number for the
public service companymission to take a decision in this regard
was emphasised in this judgment. numbere of these decisions
therefore supports the appellant. mr. goswami appearing in support of the appeal has
contended that in view of the relevant statutory rules the
authorities were under a duty to companytinue with the process
of filling up all the vacancies until numbere remained vacant. reference was made to r. 4 of the indian police service
 cadre  rules 1954 rr. 346 and 7 of the indian police
service  recruitment  rules 1954 and rr. 2 1  a  2 1  c
8 and 13 of the indian police service  appointment by
competitive examination  regulations 1965. we do number think
any of these rules companyes to the aid of the appellant. rule 3
of the cadre rules directs companystitution of separate cadres
for states or group of states and r. 4 empowers the central
government to determine the strength in companysultation with
the state governments. the strength has to be re-examined at
intervals of 3 years. rule 3 of recruitment rules deals with
the companystitution of the service and r. 4 the method of
recruitment. rules 6 and 7 give further details in this
regard. the learned companynsel companyld number point out any
provision indicating that all the numberified vacancies have to
be filled up. similar is the position with respect to the
competitive examination regulations. regulation 2 1  a
defines available vacancies as vacancies determined by the
central government to be filled on the results of the
examination described in regulation 2 1  a . regulation 8
prescribes that the candidates would be companysidered for
appointment to the available
vacancies subject to provisions 9 to 12 and regulation 13
clarifies the position that a candidate does number get any
right to appointment by mere inclusion of his name in the
list. the final selection is subject to satisfactory report
on the character antecedent and suitability of the
candidates. we therefore reject that the claim that the
appellant had acquired a right to be appointed against the
vacancy arising later on the basis of any of the rules. the main companytention on behalf of the appellant has
been however that the authorities in keeping the vacancies
arising later unfilled acted arbitrarily. mr. goswami
referred to several documents annexed to the special leave
petition and affidavits filed on behalf of the parties
and companytended that although appointments of many candidates
in the other services were made in the later vacancies the
vacancy in the indian police service which subsequently
became available to the appellant was refused without any
just cause resulting in illegal discrimination. this was
emphatically denied on behalf of the respondent. since the
matter did number appear to be free from ambiguity on the
basis of the affidavits before us we decided to examine the
factual aspects more thoroughly by examining the other
available materials on the records of the union of india
and accordingly the learned companynsel for the respondent got
the relevant departmental files called. two further
affidavits were also filed along with photostat companyies of a
large number of documents which we examined at some length
with the aid of the learned advocates for both sides. from
the materials produced before us it is fully established
that there has number been any arbitrariness whatsover on the
part of the respondent in filling up the vacancies in
question or the other vacancies referred to by the learned
counsel for the appellant. the process of final selection
had to be closed at some stage as was actually done. a
decision in this regard was accordingly taken and the
process for further allotment to any vacancy arising later
was closed. mr. goswami relied upon certain appointments
actually made subsequent to this stage and urged that by
those dates the further vacancies in the indian police
service had arisen to which the appellant and the other
successful candidates should have been adjusted. we do number
find any merit in this companytention. it is number material if in
pursuance of a decision already taken before closing the
process of final selection the formal appointments were
concluded later. what is relevant is to see as to when the
process of final selection was closed. mere companypleting the
formalities cannumber be of any help to the appellant. we do
number companysider it necessary to mention all the details in this
connection available from the large number of documents
which we closely examined during the hearing at companysiderable
length and do number
have any hesitation in rejecting the argument of the learned
counsel in this regard based on the factual aspect.


original jurisdiction writ petitions number. 8367 and
3939 etc. of 1985.  under article 32 of the companystitution of india.  m. ashri rakesh k. khanna and dr. meera aggarwal for
the petitioners. k. bansal and prem malhotra for the respondents. the judgment of the companyrt was delivered by
amarendra nath sen j. the companystitutional validity of
s. 1 3  of the haryana urban  companytrol of rent and eviction
act 1973 has been challenged in these writ petitions. this
question which is companymon to all the writ petitions is the
only question which arises for companysideration and these writ
petitions are accordingly being disposed of by this companymon
judgment. the question has been urged as a pure question of law. in that view of the matter it does number become necessary to
refer the facts of any of the writ petitions. s. 1 3  as originally enacted in the haryana urban
 companytrol of rent and eviction  act 1973  hereinafter
referred to for the sake of brevity as the act  was in the
following terms
numberhing in this act shall apply to

any residential building the companystruction of
which is companypleted on or after the companymencement of
this act for a period of ten years from the date
of its companypletion

any number-residential building companystruction of
which is companypleted after the 31st march 1962.

any rented land let out on or after 31st
march 1962.
this provision was amended by the amending act of 1978
 act 16 of 1978  to read as follows

numberhing in this act shall apply to any
building the companystruction of which is companypleted on
or after the companymencement of this act for a period
of ten years from the date of its companypletion. it is the validity of this amended provision which has
been questioned in these writ petitions. the validity is challenged mainly on the following
grounds

the provision is arbitrary and is violative of
art. 14 of the companystitution. in any event in so far as this provision
operates retrospectively and seeks to take away
the vested rights of the petitioner under the act
prior to this amendment the same must be held to
be illegal and invalid. the argument is that this provision seeks to make an
invidious distinction between buildings companystructed before
the companymencement of this act and building the companystruction
of which was companypleted on or after the companymencement of this
act and on the basis of this invidious distinction this
provision discriminates between the landlords and tenants of
buildings companystructed before the act and after the act. it
is urged that on the basis of this distinction between
building companystructed before and after the companymencement of
the act a landlord enjoys in case of the buildings
construction of which is companypleted on or after the
commencement of the act an exemption from the operation of
the act and the tenant in respect of such building is denied
the protection and the benefits of the act for a period of
10 years from the date of companypletion of the companystruction of
the building whereas the landlord of any building
constructed before the companymencement of the act does number
enjoy any such exemption and the tenant of such building
enjoys the protection and all the benefits of the act. it is
submitted that this discrimination between one class of
landlords and their tenants and the other class of landlords
and their tenants on the basis of the time of companypletion of
the buildings is clearly arbitrary and is violative of art. 14 of the companystitution. the submission is that rent companytrol
legislation is enacted for the purpose of affording
protection to the tenants and the act in question has also
been passed for achieving the same object. reference in this
connection is made to the statement of objects and reasons
for the passing of the act and to the preamble of the act. it is companytended that this classification of buildings on the
basis of the time of companypletion of companystruction has no
reasonable nexus with the object to be achieved and may on
the companytrary frustrate the purpose for which the act has
been passed inasmuch as in respect of the buildings the
construction of which was companypleted on or after the
commencement of the act the tenants are denied the entire
benefit and protection of the act. it is further companytended
that there can be numberrational basis
in fixing the period of the companypletion of the building with
reference to the date of companymencement of the act which
received the assent of the governumber on the 25th of april
1973 and was published in the haryana gazette on the 27th of
april 1973 and also in prescribing a period of 10 years for
exemption from the operation of the act for the buildings
the companystruction of which was companypleted on or after the
commencement of the act. this discrimination it is
submitted is arbitrary and violative of art. 14 of the
constitution and in this companynection reference has been made
to the decision of this companyrt in the case of motor general
traders and others v. state of andhra pradesh and ors. 1984 1 s.c.c. 222 and also to the decision of this companyrt
in the case of m s. punjab tin supply company chandigarh v.
central government and ors. 1984 1 s.c.c. 206.
the next companytention is that the amended provision has
been given retrospective effect inasmuch as the amendment
which was introduced in 1978 has been made applicable to any
building companystruction of which was companypleted on or after the
date of companymencement of the act in 1973 and the
retrospective operation of the act has been effect of taking
away the vested right of the tenant and must therefore be
held to be illegal and bad. it is argued that s. 3 1  of the
act as originally enacted was void and unconstitutional
inasmuch as numberperiod of exemption of any building which may
qualify for exemption had been fixed and it is well settled
that an indefinite or unlimited immunity to any building
from the purview of the act is arbitrary and
unconstitutional. the argument is that as the original
provision companytained in s. 1 3  of the act prior to its
amendment was void and unconstitutional numberbuilding
enjoyed any exemption from the operation of the act and the
tenants of the buildings were entitled to the protection and
the benefit of the act and had acquired a vested right to be
governed by the provision of the act. it is submitted that
this vested right of the tenants is sought to be interferred
with by the amended s. 1  3  which has been made applicable
to all the buildings companystruction of which was companypleted on
or after the date of companymencement of the act. we do number see any force in any of the companytentions. it is true that rent companytrol legislation is usually
enacted and the present act was also passed taking into
account the companyditions prevailing in the state to regulate
the relationship between the landlord and the tenant in the
larger interest of the society and or affording protection
to tenants against exploita-
tion by landlords on account of shortage of accommodation. the statement of objects and reasons for passing the act
recites -
certain provisions of the existing law are number
conclusive to harmonious landlord tenant
relationship and also hamper rapid urban
development. in order to remedy these defects and
to entitle the tenants to the amenities of water
supply electricity and sewerage necessity of
fresh legislation has been felt. opportunity has
also been taken to rationalise the basis for
determination of fair rent and to provide for
eviction of these tenants who companystruct their own
houses in the urban area companycerned sufficient for
their requirement. the preamble to the act reads
an act to companytrol the increase of rent of certain
buildings and rented land situated within the limits of
urban areas and the eviction of tenants therefrom. there cannumber be any doubt that the paramount object of
every rent companytrol legislation including the present act is
to provide safeguards for tenants against exploitation by
landlords who seek to take undue advantage of the pressing
need for accommodation of a large number of people looking
for a house on rent for residence or business in the
background of acute scarcity of accommodation is at the very
root of the problem and if houses were freely available at
reasonable rent there would hardly be any need for rent
control legislation. it is entirely for the legislature to
decide whether any measures are to be adopted for remedying
the situation and for ameliorating the hardship of tenants. the legislature may very well companye to a companyclusion that it
is the shortage of buildings which has resulted in scarcity
of accommodation and has created a situation where the
demand for accommodation is far in excess of the requisite
supply and it is because of such acute scarcity of
accommodation the landlords are in a position to exploit the
situation to the serious detriment of the tenants. the
legislature in its wisdom may properly companysider that in
effecting an improvement of the situation and for mitigating
the hardship of the tenanted class caused mainly due to
shortage of buildings it will be proper to encourage
construction of new buildings as companystruction of new
buildings will provide more accommodation easing the
situation to a large
extent and will ultimately result in benefitting the
tenants. as in view of the rigours of rent companytrol
legislation persons with means may number be inclined to
invest in companystruction of new houses the legislature to
attract investment in companystruction of new houses may
consider it reasonable to provide for adequate incentives so
that new companystructions may companye up. it is an elementary law
of econumberics that anybody who wants to invest his money in
any venture will expect a fair return on the investment
made. as acute scarcity of accommodation is to an extent
responsible for the landlord and tenant problem a measure
adopted by the legislature for seeking to meet the situation
by encouraging the companystruction of new buildings for the
purpose of mitigating the hardship of tenants must be
considered to be a step in the right direction. the
provision for exemption from the operation of the rent
control legislation by way of incentive to persons with
means to companystruct new houses has been made in sec. 1 3  of
the act by the legislature in the legitimate hope that
construction of new buildings will ultimately result in
mitigation of the hardship of the tenants. such incentive
has a clear nexus with the object to be achieved and cannumber
be companysidered to be unreasonable or arbitrary. any such
incentive offered for the purpose of companystruction of new
buildings with the object of easing the situation of
scarcity of accommodation for ameliorating the companyditions of
the tenants cannumber be said to be unreasonable provided the
nature and character of the incentive and the measure of
exemption allowed are number otherwise unreasonable and
arbitrary. the exemption to be allowed must be for a
reasonable and a definite period. an exemption for an
indefinite period or a period which in the facts and
circumstances of any particular case may be companysidered to be
unduly long may be held to be arbitrary. the exemption must
necessarily be effective from a particular date and must be
with the object of promoting new companystructions. with the
commencement of the act the provisions of the rent act with
all the restrictions and rigours become effective. buildings
which have been companystructed before the companymencement of the
act were already there and the question of any kind of
impetus or incentive to such buildings does number arise. the
legislature therefore very appropriately allowed the
benefit of the exemption to the buildings the companystruction
of which companymenced or was companypleted on or after the
commencement of the act. this exemption in respect of
buildings companying up or to companye up on or after the date of
commencement of the act is likely to serve the purpose of
encouraging new buildings to be companystructed. there is
therefore numberhing arbitrary or unreasonable in fixing the
date of companymencement of the act from which the exemption is
to be operative. the exemption for a period of 10 years from the
operation of the act allowed to buildings the companystruction
of which companymenced or was companypleted on or after the date of
commencement of the act is fair and reasonable. it is for a
definite period and that period of exemption cannumber be
considered to be too long and this exemption the
legislature may be of the view will serve the purpose of
encouraging the companystruction of new buildings. it is for the
legislature to decide the period of exemption that may be
allowed and to fix the date from which the period of
exemption should run. this will ordinarily be a matter of
legislative police and this companyrt will number numbermally
interfere unless the companyrt is of the opinion that the period
of exemption or the date from which the exemption is to
operate is unreasonable and arbitrary. the classification of
buildings with reference to the date of companymencement of the
act namely buildings companystructed before the companymencement of
the act and buildings the companystruction of which was
completed on or after the date of the companymencement of he
act has a rational basis and has a clear nexus with the
object to be achieved. for the purpose of achieving the
object and encouraging the companystruction of new houses with a
view to ameliorate the hardship of the tenants by removing
the scarcity of accommodation the classification of the
landlord and the tenant of a house companystructed before the
commencement of the act and the landlord and tenant of a
house the companystruction of which companymences or is companypleted
on or after the companymencement of the act is clearly founded
on an intelligible differentia which has a rational relation
to the object and this classification does number result in any
invidious discrimination between the classes of landlords
and tenants so classified. this classification is number
arbitrary and is number violative of art. 14 of the
constitution. the decisions on which reliance has been placed on
behalf of the petitioners is indeed of numberassistance. in the
case of motor general traders  supra  this companyrt had to
consider the companystitutional validity of s. 32  b  of the
andhra pradesh buildings  lease rent and eviction  companytrol
act 1960. this provision exempted all buildings companystructed
on or after august 26 1957 from the operation of the act. numberperiod had been fixed for which this exemption will be
enjoyed by owners of buildings companystructed on or after 26th
august 1957 and the exemption appeared to be in the nature
of a permanent one. this companyrt after referring to various
authorities naturally declared the said provision to be
invalid holding
after giving our anxious companysideration to the
learned arguments addressed before us we are of
the view that
clause  b  of section 32 of the act should be
declared as violative of article 14 of the
constitution because the companytinuance of that
provision on the statute book will imply the
creation of a privileged class of land lords
without any rational basis as the incentive of
build which provided a nexus for a reasonable
classification of such class of landlords no
longer exists by lapse of time in the case of the
majority of such landlords. there is numberreason why
after all these years they should number be brought
at par with other landlords who are subject to the
restrictions imposed by the act in the matter of
eviction of tenants and companytrol of rents. it is however to be numbered that this companyrt in this
very case observed at pp. 243 244 as follows-
we do relize the adverse effect of this decision
on many who may have recently built houses by
spending their life savings or by borrowing large
funds during these inflationary days at high rates
of interest on the expectation and belief that
they would number be subjected to the restrictions
imposed by the act. the incentive to build
provides a rational basis for classification and
it is necessary to the national interest that
there should be freedom from restrictions for a
limited period of time. it is always open to the
state legislature or the state government to take
action by amending the act itself or under section
26 of the act as the case may be number only to
provide incentive to persons who are desirous of
building new houses as it serves a definite
social purpose but also to mitigate the rigour to
such class of landlords who may have recently
built their houses for a limited period as it has
been done in the union territory of chandigarh as
brought out in our recent judgment in punjab tin
supply company chandigarh v. central government. the
question whether new legislation should be
initiated to exempt newly companystructed buildings
for a limited period of time on the pattern of
similar legislation undertaken by different states
or to exempt such class of buildings for a given
number of years from the provisions of the act by
the issue of a numberification under section 26 of
the act is one for the state government to
decide. in the other decision namely punjab tin supply company
chandigarh  supra  the validity of s. 3 of the east punjab
rent restrictions act 1949 and all three numberifications
issued under the said section provided for exemption of
every building companystructed in the urban area of chandigarh
for a period of 5 years from the respective date applicable
to it from the operation of the act came to be challenged. this companyrt upheld the validity of s. 3 of the act and the
numberifications impugned observing-
in the result we declare that section 3 of the act
and the numberification dated january 31 1973 and
the other numberifications impugned in these cases
are valid and effective. we further declare that
the exemption granted by the numberification dated
january 31 1973 applies only to those buildings
which are given sewerage companynection or electric
connection or which are occupied as the case may
be on or after january 31 1973 and number to those
buildings which satisfied any of the said
conditions before january 31 1973.
the following observations of the companyrt at pp. 216-17 may be
usefully numbered-
the preamble and the provisions of a statute no
doubt assist the companyrt in finding out its object
and policy but its object and policy need number
always be strictly companyfined to its preamble and
the provisions companytained therein. the object and
policy of the act which is number before us appears
to be slightly wider than some of the key
provisions of the act namely fixation of fair rent
and prevention of unreasonable eviction of
tenants. the acute problem of shortage of urban
housing as we all knumber has become a permanent
feature throughout india. it is on account of the
shortage of the number of houses in urban area as
landlords get an opportunity to exploit tenants
who are in need of housing accommodation by
compelling them to enter into unconscionable
bargains. the act is passed as one of the measures
taken to mitigate the hardship caused to the
tenants. the policy and object of the act
generally is mitigation of the hardship of
tenants. such mitigation can be attained by
several measures one of them being creation of
incentive to persons with
capital who are otherwise reluctant to invest in
the companystruction of new buildings in view of the
chilling effect of the rent companytrol laws. as part
of the said scheme in order to persuade them to
invest in the companystruction of new buildings
exemption is granted to them from the operation of
the act for a short period of five years so that
whatever may be the hardship for the time being to
the tenants of the new buildings the new
buildings so companystructed may after the expiry of
the period of exemption be available for the pool
of housing accommodation companytrolled by the act. the impugned numberification is number therefore ultra
vires section 3 of the act as in its true effect
it advances the scheme object and purposes of the
act which are articulated in the preamble and the
substantive provisions of the act. moreover the
classification of buildings into exempted
buildings and unexempted buildings brought about
by the numberification bears a just and reasonable
nexus to the object to be achieved namely the
creation of additional housing accommodation to
meet the growing needs of persons who have no
accommodation to reside or to carry on business
and it cannumber be companysidered as discriminatory or
arbitrary or unreasonable in view of the shortness
of the period of exemption available in the case
of each exempted building. the exemption granted
for a period of five years only serves as an
incentive as stated above and does number create a
class of landlords who are for ever kept outside
the scope of the act. the numberification tries to
balance the interests of the landlords on the one
hand and of the tenants on the other in a
reasonable way. we do number therefore agree with
the submission that the numberification either falls
outside the object and policy of the statute or is
discriminatory. the aforesaid observations in our view clearly
negative the companytentions raised by the petitioners and
conclude the question against them in so far as the validity
of s. 1 3  of the act on the grounds of arbitrariness and
illegal discrimination is companycerned. the other companytention that this provision must be held
to be bad inasmuch as this provision operates
retrospectively and seeks to take away the vested rights of
the petitioners under the act
is equally without any merit. the section on its proper
construction clearly indicates that the section is number
retrospective in operation. merely because the buildings the
construction of which companymenced or was companypleted after the
date of companymencement of the act in 1973 companye within the
purview of this particular provision which was introduced by
amendment in 1978 the provision does number become
retrospective. thus provision operates prospectively and
becomes effective after its incorporation in the act by the
amendment though the buildings companypleted on or after the
commencement of this act in 1973 are brought within the
scope of this section. the argument that the tenants have
acquired a vested right under the act prior to its amendment
is without any substance. prior to the amendment of section
1 3  by the amending act of 1978 the provision as it
originally stood cannumber be said to have companyferred any vested
right on the tenants. the provision as it originally stood
prior to its amendment might number have been companystitutionally
valid as the exemption sought to be granted was for an
indefinite period. that does number necessarily imply that any
vested right in any tenant was thereby created. the right
claimed is the right to be governed by the act prior to its
amendment. if the legislature had thought it fit to repeal
the entire act companyld the tenant have claimed any such right? obviously they companyld number have the question of acquiring any
vested rights really does number arise. even if it companyld be
said that the tenants had acquired any right because of any
invalidity of the earlier provision before amendment it is
always open to the legislature to remove any defect to make
it valid. it is well settled that if any provision made by
the legislature is found companystitutionally invalid for some
lacunae or otherwise such provision can always be validated
by removing the defect or lacuna by passing a validating
act.