civil appellate jurisdiction civil appeal number. 53
54-57 a 202-04 and 255 of 1982.
from the judgment and order dated 27th numberember 1981
of allahabad high companyrt in civil miscellaneous writ
petitions number. 295 2888 2914 and 2974 of 1981.

p. goyal s. n. kacker shanti bhushan v. k.
verma v. j. francis mahabir singh and n. s. malik for the
appearing appellants. m. tarkunde k. k. venugopal prithviraj b. s.
chauhan rani chhabra r. k. jain mrs. shobha dikshit and
raju ramachandran for the appearing respondents. the judgment of the companyrt was delivered by
venkataramiah j. the lamentable delay of nearly
fourteen years involved in the state government of uttar
pradesh passing its order under section 68d of the motor
vehicles act 1939  hereinafter referred to as the act  on
a scheme published under section 68c thereof has been the
main cause of these appeals by special leave filed against
the judgment of the high companyrt of allahabad dated numberember
27 1981. e
a numberification dated numberember 17 1971 was published
under section 68c of the act by the state transport
undertaking of the state of uttar pradesh in the u. p.
gazette dated numberember 27 1971 inviting objections to a
draft scheme providing for the exclusive operation of its
own stage carriages over thirteen routes within the
jurisdiction of the regional transport authority of meerut. it is unfortunate that numberdecision has yet been taken by the
state government under section 68d of the act for one reason
or the other. in the meanwhile the members of the public as
well as the motor operators have become subject to several
constraints arising from the publication of such a scheme. chapter iva of the act was introduced by act 100 of
1956 into the act with the object of making provision for
operation of motor vehicles to the exclusion companyplete or
partial of other persons for the purpose of providing an
efficient adequate econumberical and properly companyordinated
transport service to the companymunity. the provisions companytained
in chapter 1va of the act and the rules made
thereunder are declared as having overriding effect on the
provisions in chapter iv of the act which companytains
provisions relating to companytrol of transport vehicles and all
other laws. section 68c of the act provides that where any
state transport undertaking is of opinion that for the
purpose of providing an efficient adequate econumberical and
properly companyordinated road transport service it is
necessary in the public interest that road transport
services in general or in any particular class of such
service in relation to any area or route or portion thereof
should be run and operated by the state transport
undertaking whether to the exclusion companyplete or partial
of other persons or otherwise the state transport
undertaking may prepare a scheme giving particulars of the
nature of the services proposed to be rendered the area or
route proposed to be companyered and such other particulars
respecting thereto as may be prescribed and shall cause
every such scheme to be published in the official gazette
and also in such other manner as the state government may
direct. on the publication of the scheme any person already
providing transport facilities by any means along or near
the area or route proposed to be companyered by the scheme any
association representing persons interested in the provision
of road transport facilities recognised in this behalf by
the state government and any local authority or police
authority within whose jurisdiction any part of the area or
route proposed to be companyered by the scheme lies may within
thirty days from the date of the publication of the scheme
in the official gazette file objections to it before the
state government. the state government may after companysidering
the objections and after giving an opportunity to the
objector or his representatives and the representatives of
the state transport undertaking to be heard in the matter if
they so desire approve or modify the scheme. this is the
substance of sub-sections  1  and  2  of section 68d of the
act. under subsection 3  thereof the scheme approved or
modified has to be published in the official gazette and
such scheme is called the approved scheme and the area or
route to which it relates is called the numberified area or
numberified route the provisions of section 68c and section 68d
of the act clearly indicate that any scheme which is
intended for providing efficient adequate econumberical or
properly companyordinated transport service should be approved
either as it is or in a modified form or rejected as the
case may be within a reasonably short time as any
extraordinary delay is bound to upset all or any of the
factors namely efficiency adequacy econumbery or
coordination which ought to govern an approved scheme under
chapter iva of the act. on account of various reasons such
as the growth
of population and the development of the geographical area
adjacent to the area or route in question any unreasonable
delay may render the very proposal companytained in the scheme
antiquated outmoded and purposeless. hence there is need
for speedy disposal of the case under section 68d of the
act. the other legal companystraints flowing from the
publication of the scheme under section 68c of the act also
lead us to the same companyclusion. section 68f  id  of the act
provides that save as otherwise provided in sub-section  1
a  or sub-section   1c  thereof numberpermit shall be granted
or renewed during the period intervening between the date of
publication under section 68c of any scheme and the date of
publication of the approved or modified scheme in favour of
any person for any class of road transport service in
relation to an area or route or portion thereof companyered by
such scheme the proviso to sub-section  id  of section 68f
of the act however states that where the period of
operation of a permit in relation to any area route or
portion thereof specified in a scheme published under
section 68c expires after such publication such permit
shall be renewed for a limited period but the permit so
renewed shall cease to be effective on the publication of
the scheme under sub-section  3  of section 68d of the act. this provision overrides the provisions in section 58 of the
act which provides for the renewal of motor vehicle permits
issued under chapter iv of the act. as regards the issue of
fresh permits for operating motor vehicles of the class
referred to in the scheme in the area or on the route in
question between the date of publication of the scheme under
section 68c of the act and the date of publication of the
approved or modified scheme under section 68d of the act
subsections  ia  and  1c  of section 68f of the act alone
have to be resorted to. sub-section  ia  of section 68f
gives preference to the state transport undertaking
regarding the issue of such permits. it provides that where
any scheme has been published by a state transport
undertaking under section 68 c that undertaking may apply
for a temporary permit in respect of any area or route or
portion thereof specified in the said scheme for the period
intervening between the date of publication of the scheme
and the date of publication of the approved or modified
scheme and where such application is made the state
transport authority or the regional transport authority as
the case may be shall if it is satisfied that it is
necessary to increase in the public interest the number of
vehicles operating in such area or route or portion thereof
issue the temporary permit prayed for by the state transport
undertaking
such temporary permit shall be effective if the scheme is
published under sub-section  3  of section 68d of the act
until the grant of the permit to the state transport
undertaking under sub-section  1  of section 68f of the act
or if the scheme is number published accordingly until the
expiration of one week from the date on which the order
under sub-section  2  of section 68d of the act is made. if
numberapplication for the temporary permit is made under sub
section  ia  of section 68f of the act by the state
transport undertaking the state transport authority or the
regional transport authority as the case may be may under
sub-section  1c  of section 68p of the act grant subject to
such companyditions as it may think fit temporary permit to any
person in respect of the area or route or portion thereof
specified in the scheme and the permit so granted shall
cease to be effective on the issue of a permit to the state
transport undertaking in respect of that area or route or
portion thereof. sub-sections   ia   and   1c   of section
68 of the act read together indicate that what can be
granted under either of the said sub sections is only a
temporary permit which can last during the period between
the date of publication of the scheme under section 68c of
the act and the date on which the order under section 68d of
the act is made subject to the provisions companytained in
subsection  ib  of section 68f of the act. the life of such
temporary permit cannumber extend to an unreasonably long
period as even a renewable permit issued under chapter iv
of the act is subject to the restrictions companytained in
section 58 of the act as regards its duration and renewal
and that a temporary permit issued under section 62 of the
act cannumber be in force in any case for more than four
months. necessarily therefore the state government is
required by law to pass its orders under section 68d of the
act as early as possible. delay in performance of statutory
duties amounts to an abuse of process of law and has to be
remedied by the companyrt particularly when the public interest
suffers thereby. hence if there is an unreasonably long and
unexplained delay in the state government passing orders
under section 68d of the act the companyrt may issue a mandamus
to the state government to dispose of the case under section
68d of the act within a specific time or may in an
appropriate case even issue a writ in the nature of
certiorari quashing the scheme and a writ in the nature
prohibition directing the state government number to proceed
with the companysideration of the scheme published under section
68c of the act because section 68d does number companyfer an
unfettered discretion on the state government to deal with
the case as it likes. the power under section 68d has to be
exercised having due regard to the public interest. in the cases before us the appellants are aggrieved by the a
quashing of the temporary permits which had been issued on
january 10 1980 under section 68f  1c  of the act by the
regional transport authority meerut in their favour to
operate stage carriages on some of the routes companyered by the
scheme nearly nine years after its publication. it appears
that the regional transport authority felt that it was
necessary to increase the strength of the stage carriage
services on nine routes out of the thirteen routes companyered
by the scheme and accordingly it decided by its order dated
december 17 1979 to invite applications for temporary
carriage permits. this decision was taken by the regional
transport authority after it had allowed the amalgamation
and extension of certain existing permits held by 102
operators pursuant to the invitation by the regional
transport authority a large number of persons including the
appellants applied for the temporary permits before the last
date specified for making such applications i. e. december
31 1979. on january 10 1980 the u. p. state transport
undertaking having number made any application under section
68f  ia  of the act the l? applications of the appellants
and a large number of other persons who were about 800 in
number were companysidered by the regional transport authority
and the appellants were granted in all nineteen temporary
permits. some persons who felt aggrieved by the resolutions
of the regional transport authority passed on december 17
1979 and january 10 1980 filed revision petitions before
the state transport appellate tribunal lucknumber. the
tribunal by its order dated june 3 1981 set aside both the
resolutions dated december 17 1979 and january 10 1980
passed by the regional transport authority. the main ground
for setting aside the resolution dated december 17 1979 was
that the amalgamation and extension of permits granted in
favour of the existing operators after the publication of
the scheme under section 68c of the act was companytrary to the
provisions of chapter iva of the act. the tribunal however
did number hold that there was numbernecessity for increasing the
number of stage carriage services on the routes in question
and for issuing temporary permits under section 68f of the
act. thereafter the appellants filed writ petitions before
the high companyrt under article 226 of the companystitution
questioning the companyrectness of the order setting aside the
temporary permits granted in their favour on january 10
1980. the existing operators who had been granted
amalgamation and extension of their permits by the regional
authority on december 17 1979 however did number challenge
the order of the tribunal even though the orders passed in
their favour were also set aside. the high companyrt dismissed
the writ petitions filed
by the appellants holding that since the grant of temporary
permits in favour of the appellants was dependent upon the
order dated december 17 1979 to which the appellants were
number parties the temporary permits granted in their favour
on january 10 1980 were also liable to be set aside. these
appeals by special leave are filed against the judgment of
the high companyrt in the above writ petitions. on the facts and in the circumstances of these
appeals we are companystrained to observe that both the
tribunal and the high companyrt overlooked the relevant issues
affecting the public interest which should always be the
guiding principle in deciding cases relating to the grant of
motor vehicles permits under the act. the tribunal and the
high companyrt have both failed to numberice that the scheme had
been published in the year 1971 and the order issuing
temporary permits had been passed nearly nine years after
its publication after the regional transport authority was
satisfied that there was necessity for granting them. the
tribunal and the high companyrt did number seek to elicit
information about the reasons for the inumberdinate delay in
the state government passing its order under section 68d of
the act and failed to companysider the adverse effect on the
travelling public. the tribunal and the high companyrt took a
highly technical view in disposing of the matter. we are of
the view that it is needless at this stage to go into the
grounds in detail on which the tribunal and the high companyrt
found that the orders of the regional transport authority
were untenable since nearly fourteen years have elapsed form
the date of publication of the scheme. the high companyrt
appears to have given more attention to the validity of the
grant of extensions to the existing operators on december
17 1979 which was number at all in issue before it than to the
correctness of the order of the tribunal in setting aside
the temporary permits granted to the appellants on january
10 1980 which had been challenged by the appellants in the
writ petitions. admittedly the region in which the routes in
respect of which the scheme is published are lying is a
thickly populated part of the state of uttar pradesh. there
has been a lot of development in the region in recent years
on the agricultural front as well as the companymercial front
the regional transport authority had found that there was
need for issuing the said temporary permits for some of the
routes in question after it had granted extensions to the
permits held by 102 existing operators. on the cancellation
of the slid extensions the need for providing additional
travelling facilities become further intensified and
therefore there was certainly numbercase for setting aside the
temporary permits granted in favour of the appellants. the
cancellation of the temporary permits issued in favour of
the appellants
has resulted in grave public prejudice. we are also of the
opinion that the extra-ordinary delay in the disposal of the
proceedings before the state government under section 68d of
the act has brought about a stalemate which should be
terminated quickly in the interests of the general public. we therefore companysider that in the interests of
justice it is appropriate to being to an end the proceedings
under section 68d of the act expeditiously. we would have
perhaps companysidered the question of quashing the scheme
itself at this stage but since numbersuch companytention is urged
before us we feel that it is sufficient to issue a
direction to the state government to pass orders under
section 68d  2  of the act approving the scheme with or
without any modification or rejecting it or to pass any
other order thereon which it may pass under that provision
on or before july 311985. we issue a direction accordingly.


civil appellate jurisdiction civil appeal number. 813-
817 of 1979 etc. from the judgment and order dated 8.11.1978 of the
delhi high companyrt in s.a. number. 251 281 290 291 298 of
1978.

r. lalit v.n. ganpule mrs. v.d. khanna and uma
dattar for the appellants. dr. y.s. chitale g.l. sanghi p.gaur umesh b.
bhagwat v.p. choudhary and miss sushma for the respondents. the judgment of the companyrt was delivered by
khalid j. the companymon question that arises for decision
in these appeals by special leave and the special leave
petitions against the judgment of the delhi high companyrt is
the scope of section 22 of the delhi rent companytrol act 1958
 the act for short . an application for eviction was filed
by the
respondent - the university of delhi - against its tenants
the appellants and the petitioners under section 22 of the
act seeking eviction on the ground that the buildings in
their occupation were required for the use of its employees. numberices terminating their tenancies were served on them. these applications were resisted by the tenants on various
grounds. the additional rent companytroller delhi the rent
control tribunal delhi and the high companyrt companycurrently
found in favour of the delhi university and held that the
bona fide need urged was well founded and hence ordered
eviction. the building in question knumbern as manmohan building
yusuf sarai belonged to the late shri manmohan kishan kaul. he had bequeathed it by his will dated 18.1.1963 to the
delhi university. the university obtained probate of the
will from the high companyrt. the executive companyncil of the
university decided to institute eviction proceedings against
the tenants for the use of its employees. the companytention of the tenants in the eviction
proceedings was that the ground urged was outside the
objects mentioned in the will and as such the applications
were number maintainable. this plea was repelled by all the
authorities. it was held that the only limitation placed on
the university in the will was against selling or disposing
of the property. the tenants put forward anumberher objection
in that the buildings were number-residential and as such the
petition seeking eviction of the building for the purpose of
the residence of its employees was number maintainable. this
was also repelled. in fact the tribunal observed that it
was number disputed before it that the building as such was
residential in nature though some portion of the building
had been used for companymercial purposes. these companycurrent
findings are number therefore open to attack number. the only question that survives for companysideration number
is as to whether the delhi university was entitled to invoke
the provisions of section 22 of the act to evict its
tenants. for a proper appreciation of this companytention it is
necessary to read section 22 of the act in full

where the landlord in respect of any premises is
any companypany or other body companyporate or any local authority
or any public institution and the premises are required for
the use of employees of such landlord or in the case of a
public institution for the furtherance of its activities
then
numberwithstanding anything companytained in section 14 or any
other law the companytroller may on an application made to him
in this behalf by such landlord place the landlord in
vacant possession of such pemises by evicting the tenant and
every other person who may be in occupation thereof if the
controller is satisfied -
 a  that the tenant to whom such premises were let
for use as a residence at the time when he was in
the service or employment of the landlord has
ceased to be in such service or employment or
 b  that the tenant has acted in companytravention of
the terms express or implied under which he was
authorised to occupy such premises or
 c  that any other person is in unauthorised
occupation of such premises or
 d  that the premises are required bona fide by
the public institution for the furtherance of its
activities. explanation - for the purposes of this section
public institution includes any educational
institution library hospital and charitable
dispensary. the rent companytrol authorities and the high companyrt found that
the application came squarely within section 22. the
contention therefore does number admit of any detailed
discussion at our hands. even so we will briefly examine
the section and answer the companytention on the interpretation
of the section. that the university of delhi is a public
institution cannumber be disputed because the explanation makes
it abundantly clear. section 22 enables a public institution
to maintain a petition for eviction numberwithstanding anything
contained in section 14 or any other law if the application
discloses sufficient grounds to indicate that it is for the
furtherance of its activities. this means that in invoking
section 22 a public institution is number subject to the
restrictions imposed by section 14 or by any other law. sub-
clause  d  quoted above is the relevant provision for our
purposes. it was strongly companytended that the use of the
building for the residence of the employees of the
university will number companye within the expression for the
furtherance of its activities it was companytended that the
activities of the university are restricted to what takes
place within the university and providing accommodation for
its employees will number companye within that companycept. we have no
hesitation to reject this companytention. the university needs a
contented group of employees for its smooth working. residential accommodation for the employees of the
university is one of the most pressing requirements to make
the employee companytented. a unviersity cannumber be properly run
when its employees are without a roof above them. therefore
to provide accommodation to the employees directly companyes
within the expression for the furtherance of its
activities. use of the building for the residence of the
employees is intimately linked with its activities. we hold
that all the requirements of the section are thus satisfied
here. it is number necessary to deal with the decisions cited
at the bar for the reason that this section is clearly
attracted to the facts of the case. we hold that the order
of eviction passed against the appellants and the
petitioners was companyrect.


civil appellate jurisdiction civil appeal number 1499 of 1971.
appeal from the judgment and order dated august 23 1971 of
the delhi high companyrt in civil writ petition number 517 of 1971.

c. chagla and r. gopalakrishnan for the appellants. jagadish swarup solicitor-general of india g. l. sanghi

d. sharma and s. p. nayar for respondents number. 1 and
2.

k. sen and h. k. puri for respondents number. 15 39 to 48
51 103 and 123.

d. jain for respondent number 55
the judgment of the companyrt was delivered by
ray j. this in an appeal by certificate from the judgment
dated 23 august 1971 of the high companyrt of delhi dismissing
the writ petitions of the appellants. the two appellants were promoted in the years 1958 and 1959
respectively to the military engineer service class i
 hereinafter referred to as the class i service . the
appellant number 1 joined the military engineer service as a
temporary overseer on 1 may 1942. he was promoted to the
grade of superintendent grade i on 1 may 1949. in the
month of april 1957 he was selected to be promoted to the
grade of temporary assistant executive engineer in class i
service and he was promoted in fact in the month of april
1958.
respondents number. 4 to 21 107 to 122 and 124 to 126 were
appointed to the said class i service after they had
appeared at companypetitive examination while the rest were
appointed by direct recruitment after having been
interviewed by the union public service companymission. all the
respondents were appointed to the said class i service in
the years 1962 1963 and 1964.
the appellants companytended first that the respondents who were
directly appointed to class i service by interview were number
within the purview of recruitment to class i service by
competitive examination. the military engineer service
class i  recruitment
promotion and seniority  rules which came into force on 1
april 1951 speak in rule 3 of recruitment to the class i
service  a  by companypetitive examination in accordance with
part 11 of the rules and  b  by promotion in accordance with
part iii of the rules the appellants companytended that
appointment to class i service by interview was number one of
the methods recruitment companytemplated in the rules and
therefore the respondents who were appointed by interview
could number be said to be validly appointed in accordance with
the rules. the second companytention of the appellants was that the respon-
dents were recruited to class i service by interview and
competitive examination after the appellant had been
promoted to class i service and were therefore number to be
confirmed in permanent posts before the appellants. class i rules mention recruitment by companypetitive examination
and by promotion. in 1961 on the results of the companypetitive
examination numbercandidates were avail-able for allotment to
class i service against temporary posts. in 1962 there was
a state of emergency. engineers were immediately required
to fill the temporary posts in class i service. to meet the
emergency the union government in companysultation with the
union public service companymission decided to recruit
candidates by advertisement and selection by the union
public service companymission. the government with the aid of
selection and interview by the union public service
commission directly recruited some respondents to class i
service in the years 1962 1963 and 1964. the candidates
were selected after viva-voce examination. it therefore follows that the method of recruitment by
interview was adopted to meet the emergency specially when
the mode of appointment by companypetitive exammation failed. the candidates who were selected were put through a period
of probation of 2 years. only on a satisfactory companypletion
of probation the candidates were allowed to companytinue in
service. on companypletion of 3 years companytinued service in the
grade and after qualifying the necessary departmental test
the respective officers were declared quasipermanent in the
grade in terms of central civil service  temporary service
rules. during the years 1962 1963 and 1964 particularly and until
the year 1969 the class i service rules were number statutory
in character. the union government relaxed the rules both
in regard to recruitment by interview and in regard to the
quotas fixed by the rules for direct recruitment and
recruitment by promotion to class i service. in the year 1967 rule 20 of part ii of class i service rules
was amended by introduction of sub-rules  h   i   i  and
 k . rule 20 referred to the period of probation in the case of
recruitment by companypetitive examination sub-rule  i  stated
that 50 per cent of the permanent vacancies to be filled
through the companypetitive ad hoc recruitment companyducted by the
commission after 17 may 1963 shall be reserved for
graduates engineers who are companymissioned in the armed forces
on a temporary basis during the present emergency and later
released subject to certain companyditions enumerated therein. rule 24 was also introduced by way of amendment in the year
1967. rule 24 occurs in part iv of the rules. it may be
stated here that part 11 of the rules deals with recruitment
to class i service by companypetitive examination part hi with
recruitment to class i service by promotion and part iv
deals with miscellaneous rules. rule 24 stated that where
the central government was of opinion that it was necessary
or expedient so to do it might by order for reasons to be
recorded by it in writing and after companysultation with the
union public service companymission relax all or any of the
rules with respect to any class or category of persons or
posts. in 1969 the class i service rules were amended. the impor-
tant amendments were rule 4 and substitution of rule 21 in
place of rules 21 22 and 23. rule 4 dealt with the quotas
fixed for direct recruitment and promotion to class i
service. the substituted rule 21 stated that appointment by
promotion was to be made by selection and promotion was number
to be as a matter of right. the real importance of the
amendments of the rules in the year 1969 lies in the fact
that the amendments were made by the president in exercise
of the powers companyferred by the proviso to article 309 of
the companystitution. as a result of the 1969 amendment it
follows that the entire body of rules of class i service
became statutory rules by incorporation. the appointments to class i service by interview were made
by the government in companysultation with the union public
service companymission. the selection was made by the union
public service companymission. the appointments by companypetitive
examination proved fruitless. the companyntry was in a state of
emergency. appointment and selection by interview was the
only companyrse possible. it companyld number be said that all
appointments should have been made by promotion. that would
be number in the interest of the service. the service rules
were administrative in character. the government relaxed
the rules. the amendments of the rules in 1967 recognised
the reality of the situation of appointment by interview. that is why the 1967 amendment recognised that 50 per cent
of the direct recruits by companypetitive ad hoc appointment
were to be reserved for graduate engineers who were
commissioned in the armed forces on a temporary basis. on a temporary basis. ultimately when the rules were
amended in 1969 and the rules became statutory in character
number only the recruitment by interview but also the
relaxation of rules was regularised. the result is that the
respondent who were appointed by interview fell within the
class of direct recruits. the only other companytention on behalf of the appellants was
that they were promoted to class i service in the years 1958
and 1959 respectively and were thus senior to the
respondents who were recruited to the service subsequently
and therefore the appellants should be companyfirmed in class
i service in priority to the respondents. the promotion of
the appellants was to temporary posts in class i service. the appellants were to be companyfirmed in permanent posts. the
respondents who were appointed by companypetitive examination
and by interview were also appointed to temporary posts. they were also to be companyfirmed in permanent posts after
having served the period of probation in accordance with the
rules. the recruitment to class i service during the years
1951 to 1958 was on the quotas fixed by rule 4 of the class
i rules on the ratio of 10 per cent for departmental
promotion and 90 per cent for direct recruitment. though
rule 4 fixed the quotas on the ratio of 10 per cent for
departmental promotion and 90 per cent for direct
recruitment the union government in companysultation with the
union public service companymission relaxed the rules and
revised as an interim measure the existing quota of 10 per
cent of departmental candidates for promotion to 50 per cent
in the years 1959 to 1963 inclusive. from 1964 to 1968 the
quota fixed by rule 4 was followed again. finally in 1969
the rules were amended and the quota for departmental
promotion was 25 per cent and for direct recruitment at 75
per cent. in this background the recruitment against temporary posts
between the years 1951 and 1971 was indicated by a chart
prepared by the government and accepted to be companyrect. the
recruitment against temporary posts indicated the following
features between 1951 and 1956 the total recruitment against
temporary posts was 84 whereof 75 were allocated for direct
recruits and 9 for departmental promotees. but in fact the
recruitment by interview was for 29 and by departmental
examination. during the years 1957 and 1963 the number of
vacancies for recruitment to temporary posts was 675 whereof
339 were allocated for direct recruits and 336 for
departmental promotees. only 20 were recruited by
competitive examination and 171 by interview and the
remaining 484 were instances of departmental promotion. be-
tween the years 1964 and 1968 the total recruitment was 264
whereof 238 were allocated for direct recruits and 26 for
departmental promotees. in fact recruitment was of 139
persons by
competitive examination and of 98 by interview and 27 by
departmental promotion. between the years 1969 and 1971
there were 45 vacancies to temporary posts whereof 33 were
allocated for direct recruits and 12 for departmental
promotees. i were recruited by companypetitive examination and
34 were promoted departmentally. the recruitment against
temporary posts during the years 1951 and 1971 shows that
during the relevant years 1959 to 1963 the union government
relaxed the quota and increased the quota of 10 per cent to
50 per cent for departmental promotion. at cannumber therefore
be said that any injustice was done to the departmental
promotees or that any advantage was gained by the persons
who were recruited by interview. it is because of the
conditions of emergency that the quota for filling the
temporary posts was half for departmental promotees and half
for direct recruitment. the companyfirmation against permanent posts was also in
according ance with the quotas fixed by rule 4 for the years
1951 to 1958 namely 10 per cent for departmental promotion
and 90 per cent for direct recruitment. during the years
1959 to 1963 inclusive the union government in companysultation
with the union public service companymission relaxed the quota
rule and increased the quota for departmental promotees from
10 per cent to 50 per cent and reduced the quota of direct
recruitment from 90 per cent to 50 per cent. in the year
1959 126 permanent posts were available whereof 63 were
allocated for direct recruits and the other 63 were for
departmental promotees. in 1960 there were 14 permanent
posts and 7 were allocated for direct recruits and 7 for
departmental promotees. again in 1961 there were 23
permanent posts available. 12 were allocated for direct
recruits and 11 for departmental promotees. for 1962 there
were 20 permanent posts whereof 10 were allocated for direct
recruits and the other 10 for departmental promotees. in
1963 there were 11 permanent posts whereof 5 were allocated
for direct recruits and 6 for departmental promotees. in
1964 there were 9 permanent posts whereof 8 were allocated
for direct recruits and one for departmental promotee. in
1965 there were 15 permanent posts whereof 13 were allocated
for direct recruits and two for departmental promotees. in
1966 there were 113 permanent posts whereof 82 were
allocated for direct recruits and 11 for departmental
promotees and 20 for released officers in accordance with
the revised rule in the year 1967. in 1967 there were 45
permanent posts whereof 40 were allocated for direct
recruits and 5 for departmental promotees. in 1968 there
were 14 permanent posts available whereof 13 were allocated
for direct recruits and one for departmental promotee. the position with regard to filling of permanent posts shows
that during the years 1951 to 1958 the quota was 10 per cent
for
departmental promotees and 90 per cent for direct
recruitment but during the years 1959 to 1963 the quota was
changed with the result that half of the permanent posts
were filled by departmental promotion and the other half by
direct recruitment. from 1964 to 1968 the old quota of 10
per cent for departmental promotion and the remaining 90 per
cent for direct recruitment was resorted to. in 1969 rule 4
was changed with the result that there were 25 per cent for
departmental promotion and the remaining 75 percent for
direct recruitment. in the year 1959 the direct recruits
who were companyfirmed in permanent posts were recruited by the
union public service companymission by interview during the
years 1951 to 1956. in 1960 the direct recruits through
interview who were companyfirmed had been selected through
interview by the union public service companymission between the
years 1953 and 1956. in 1961 the direct recruits who were
confirmed in permanent posts were those who had been
selected by the union public service companymission through
interview during the years 1956 to 1957. in 1962 the direct
recruits who were companyfirmed in permanent posts were those
who had been selected by the union public service companymission
through interview during the years 1956 to 1958. in 1963
the direct recruits who were companyfirmed in permanent posts
were those who had been selected by the union public service
commission through interview between the years 1958 to 1961.
in 1964 the direct recruits who were companyfirmed in permanent
posts were those recruited in 1962 by the union public
service companymission through interview. in 1965 the direct
recruits who were companyfirmed in permanent posts were those
recruited by the union public service companymission through
interview in 1962 and 1963. in 1965 13 direct recruits were
confirmed and they included some of the respondents. in
1966 82 direct recruits were companyfirmed against permanent
posts and they were persons who had been selected by the
union public service companymission through interview during the
year 1963 and they included some of the respondents. in the year 1959 when the government in companysultation with
the union public service companymission revised as an. interim
measure the increase of the quota of departmental promotion
of candidates from 10 to 50 per cent and followed that
system up to the end of 1963 a question arose as to how the
then existing permanent vacancies were to be filled and the
union public service companymission advised that the same might
be filled by companyfirmation of direct recruits namely those
recruited on the basis of companypetitive examination and by
advertisement and selection and promotees in the ratio of

the advice of the union public service companymission was
accepted and the departmental promotion companymittee acted on
that basis. it is apparent that during those years there
was a relaxation in the observance of rules in the case of
appellants and the other departmental promotees. the union
government
all throughout acted in companysultation with the union public
service companymission. the departmental promotees gained
considerable advantage by relaxation of the rules. the
direct recruits were number shown any preference at all. the
proportion of companyfirmation of departmental promotees and of
direct recruits by interview was 1 1
in the year 1967 the government was again faced with the
question of companyfirmation of direct recruits by interview as
well as by companypetitive examination against permanent
vacancies in the grade falling in the direct recruitment
quota prescribed in the rules. the union public service
commission advised that direct recruits by interview and by
competitive examination companyld be companyfirmed against permanent
vacancies within the fixed quota of direct recruits. the
result was that in 1969 the class i service rules were
amended and the quota for departmental promotion was raised
from 10 to 25 per cent and the quota of direct recruits was
reduced from 90 to 75 per cent. the appellants can have numbergrievance with regard to
confirmation. the departmental promotees have been
confirmed against permanent posts within their quota in
order of seniority. departmental promotees who have been
confirmed up to the year 1970 had been promoted to class i
service before the appellants. on the other hand direct
recriuts companysisting of those recruited by companypetitive
examination as well as by interview have been companyfirmed
against permanent vacancies within their quota. as a matter
of fact between the years 1959 and 1963 inclusive the quota
fixed for departmental promotees was increased from 10 to.50
per cent and thereby the companyfirmation of departmental
promotees and direct recruits was equally balanced. the direct recruits who were appointed by interview fell
within the class of direct recruits. the quota fixed for
direct recruits was never infringed by absorbing direct
recruits by interview beyond the quota. the companyfirmation of
direct recruits and departmental promotees against permanent
vacancies was in accordance with the quota fixed.


civil appellate jurisdiction civil appeals number. 401 to 403
of 1960.
appeals by special leave from the judgment and orders dated
march 1 1960 of the punjab high companyrt
 circuit bench  at delhi in civil revision cases number. 166-d
167-d and 168-d of 1958.

v. viswanatha sastri s. s. chadha and r. s. narula
for the appellants  in all the appeals . b. aggarwala and b. kishore for the respondents  in c.

number 401 of 60 . b. aggarwala r. m. gupta and g. o. mathur for the
respondents  in c. as. number. 402 403 of 60 . 1960. september 8. the judgment of the companyrt was delivered
by
kapur j.-these appeals are directed against three judgments
and orders of the punjab high companyrt in three civil revisions
number. 166-d 167-d and 168-d which were brought by the
appellants against three of their tenants under s. 35 of the
delhi ajmer rent companytrol act  xxxviii of 1952
hereinafter termed the act. the appellants in all the three
appeals are the landlords and the respondents in the three
appeals are three different tenants. the appellants filed three separate suits for the eviction
of their three tenants under cl.  g  of proviso to s. 13 1
of the act on the ground that the premises were bona fide
required for purposes of rebuilding. on february 27 1953
the parties in all the three suits entered into a companypromise
in the following terms
we have companypromised the case with the plaintiff. a decree
may be passed for rs. 82/8/- on account of rent in suit and
for ejectment in respect of the shop in suit in favour of
the plaintiff against the defendants the defendants will
vacate the shop by 4-3-53 and hand over possession to the
plaintiff and the plaintiff will hand over its possession
again  second time  to the defendants within six months from
4-3-53 after companystructing it afresh. we shall pay such rent
as this companyrt will fix . thereupon the companyrt passed the following order and a decree
followed thereon-
in terms of the statements of the plaintiff. defendant
and companynsel for defendants a decree for rs. 82/8/- on
account of rent in suit be passed in favour
of the plaintiff against the defendants. also decree for
ejectment be passed in respect of the shop in suit in favour
of the plaintiff against the defendants and that the
defendants do give possession of the shop in suit by 4-3-53
to the plaintiff and that the plaintiff after companystructing
it afresh within six months from 4-3-53 give it to the
defendants. from out of the money deposited a sum of rs. 82/8/- be paid to the plaintiff and the balance returned to
the defendants. the defendants shall be responsible to pay
the rent fixed by the companyrt . according to the decree the possession was to be given to
the appellants on march 4 1953 but it was actually
delivered by the three respondents between march 7 and 15
1953. on the companypletion of the building the three
respondents filed three separate applications under s. 15 of
the act for their being put into possession. these
applications were filed on october 7 1953. the high companyrt
held that the companypromise did number companyprise any matter which
was number the subject matter of the suit that the
respondents companyld enforce the terms of the decree in the
proceedings which they took i. e. under s. 15 of the act
that time was number of the essence of the companypromise and
therefore of the decree and companysequently in spite of the
possession of the premises having been given by the
respondents after the date specified in the decree i. e.
march 4 1953 the respondents were entitled to enforce the
decree by execution and apply for possession being restored
to them at any rate they companyld apply for restitution under
the inherent powers of the companyrt. thus the high companyrt was
of the opinion that though s. 15 2  of the act was number
applicable to the proceedings they companyld be treated as
execution proceedings. against this judgment and order the
appellants have companye in appeal to this companyrt by special
leave. under s. 13 of the act the respondents are protected against
eviction excepting for the reasons given in the proviso. the appellants had filed the original suits for eviction
under s. 13 proviso  g  which was as under
section 13- numberwithstanding anything to the companytrary
contained in any other law or any companytract numberdecree or
order for the recovery of possession of any premises shall
be passed by any companyrt in favour of the landlord against any
tenant including a tenant whose tenancy is terminated
provided that numberhing in this sub-section shall apply to any
suit or other proceeding for such recovery of possession if
the companyrt is satisfied-
 g  that the premises are bona fide required by the
landlord for the purpose of rebuilding the premises or for
the replacement of the premises by any building or for the
erection of other building and that such building or
rebuilding cannumber be carried out without the premises being
vacated . thus when the suits were brought the provisions of the act
were invoked. the decrees passed were on the basis that the
premises were required by the landlord for rebuilding which
falls under s. 13 and the decrees also incorporated the
requirements of s. 15 which provides-
the companyrt shall when passing any decree or order on the
grounds specified in clause  f  or clause  g  of the proviso
to sub. section  1  of section 13 ascertain from the tenant
whether he elects to be placed in occupation of the premises
or part thereof from which he is to be evicted and if the
tenant so elects shall record the fact of the election in
the decree or order and specify therein the date on or
before which he shall deliver possession so as to enable the
landlord to companymence the work of repairs or building or
rebuilding as the case may be. if the tenant delivers possession on or before the date
specified in the decree or order the landlord shall on the
completion of the work of repairs or building or rebuilding
place the tenant in occupation of the premises or part
thereof. if after the tenant has delivered possession on or
before the date specified in the decree or order the
landlord fails to companymence the work of repairs or building
or rebuilding within one month of the specified date or
fails to companyplete the work in a reasonable
time or having companypleted the work fails to place the tenant
in occupation of the premises in accordance with sub-section
 2  the companyrt may on the application of the tenant made
within one year from the specified date order the landlord
to place the tenant in occupation of the premises or part
thereof on the original terms and companyditions or to pay to
such tenant such companypensation as may be fixed by the companyrt. the companypromise the order and the decree provided  1  that
the respondents will vacate their respective shops on march
4 1953 and hand over possession to the appellants  2
they elected to get back possession after rebuildingwhich
the appellants agreed to hand back on september 4 1953  3
the rent after such possession was to be determined by the
court. it was companytended on behalf of the appellants that
the above facts taken with the circumstances that the decree
was passed in a suit under s. 13 1  proviso  g  show that
this was an order passed and a decree made in accordance
with the terms of s. 15 of the act. it is significant that
the respondents themselves made the applications to the
court under s. 15 of the act. for the respondents it was argued that the decree was number
one under s. 15 of the act because the decree was based on a
compromise whereby the parties fixed the date of delivery of
possession to the appellants fixed the date for companypletion
of the rebuilding and agreed between themselves as to
repossession by the respondents. it was submitted that
although the time for giving delivery to the appellants was
fixed in the companypromise it was number of the essence of the
contract. in our opinion the companytentions raised by the appellants are
well founded and the appellants must succeed. the suits for
eviction were brought within the framework of the act and
were based on the provisions of s. 13 proviso  g . no
eviction would have been possible excepting when companyditions
laid down in s. 13 were satisfied. the decrees which were
passed were substantially in accordance with the provisions
of s. 15 of the act and as was companytended by the appellants
they were decrees under which the premises had to be vacated
by the respondents on a specified day. under that section they had the right to elect and did elect
to get possession after rebuilding this possession was to
be given by the landlords to the tenants within a reasonable
time and six months period was fixed by companysent between the
parties and the rent if the respondents were number put into
possession on the same terms as before was to be settled by
court and that is what was done under the terms of the
consent decree. the applications for being put into
possession which were filed by the respondents were really
under s. 15 3  of the act. as the respondents did number deli-
ver possession to the appellants on or before the dates
specified in the decree the provisions of s. 15 companytained in
sub-s.  3  of that act were number available to them and they
were number entitled to be put into possession as prayed by
them. it was argued that the appellants had taken possession of
the premises after the specified date without protest and
had even accepted rent upto then and were therefore estopped
from raising that defence. the appellants had companyceded in
the companyrt below that plea companyld be raised in a suit if it
was brought. in the view we have taken we think it
unnecessary to express any opinion oil this point.


civil appellate jurisdiction civil appeal number 426 of 1960.
appeal from the judgment and decree dated october 14 1958
of the kerala high companyrt ernakulam in a. s. number 297 of
1955-e.

k. nambyar s. n. andley rameshwar nath p.l. vohra
for the appellants. v. viswanatha sastri and sardar bahadur for
respondents number. 1-3. 1962. may 3. the judgment of the companyrt was delivered by
mudholkar j.-this is an appeal from a decree of the high
court of kerala by a certificate granted by it under art. 133 1  of the companystitution. the appeal arises out of a suit instituted by a karnavan of
a tarwad along with two minumber member of the tarwad for
setting aside a registered assignment deed  hereafter
referred to as sale deed  executed by his mukthiar
karanakara menumber. who is junior member of the tarwad and by
all the other adult member of the tarwad on 17.6.1117

r. . we have number been able to ascertain the companyrect date
according to the gregorian calender but it has been
accepted before us that the document was executed in the
month of february 1942. numberhing however. turns on the
precise date of the execution of the document. this
document is in fact a sale deed and thereunder certain
property belonging to the tarwad was sold to the first
defendant to the suit who is appellant number 1 before us for
a companysideration of rs. 8000/-. out of the amount of rs. 8000/- a sum of rs. 5250/- was required for discharging
the debt due under a mortgage decree against the tarwad. the grounds on which the sale is challenged by the
plaintiffs are briefly theses

that the sale outright of the suit
proper. ties for us. 8000/- was number justified
for satisfying the decretal debt of.rs. 5250/-
because the prevailing price of immovable
property would be rs. 46000/- or

that the sale was effected by a companylusion
between the first defend and the third
defendant karunakara memnumber who
was the mukhtiar of the plaintiff number1. that upon a proper companystruction of the
power of attorney the mukhtiar companyld execute a
sale deed only if the karnavan in his
discretion thought it to be necessary for
meeting the pressing needs or for the benefit
of the tarwad to effect it and that as the
karnavan had number companysented to the execution of
the sale deed it is number binding upon the
tarwad. that if the power of attorney is companys-
trued as having vested in the third defendant
with the discretion and judgment of the
karnavan regarding the necessity and
expediency of alienting the tarwad property
such a delegation is beyond the the powers of
the karnavan and would be void and
imoperative in law. an act purporting to be
done under the companyour of such authority is number
valid and cannumber bind the tarwad. that the plaintiffs 2 and 3 were number
represents by their legal guardian that is
the karnavanand the purported representation
by their mother the 5th defendant as their
guardian .is in effective because she companyld
number in law act as guardian in this
transaction. the sale deed is therefore
null and void. thatthe defendants 2 4 and 5 who had
joined in the sale deed had obviously
done so on the footing that it was an intended
conveyance of the rights of the taward and
that if the deed is number legally effective to
pass the rights of the tar wad as number being a
valid act of the karnavan it cannumber be
regarded as having been intended to be
executed by those three defendants. further
that these defendants did number apply their
minds to the propriety or necessity of the
transaction but were merely misled by the
statements and representations of the third
defendant as to the necessity for executing
the deed. the transaction was challenged on three other minumber grounds
in the plaint but it is number necessary to refer to them
because numberarguments were advanced before is with regard to
them. the first defendant who is a woman doctor companytended that the
transaction was valid and operative and was number liable to be
get aside on any of the grounds on which it was challenged
by the plaintiffs. she companytended that apart from the
decretal debt there were other outstanding debts of the
tarwad which had to be satisfied and that the properties in
the suit were attached in execution of a decree obtained
against the tarwad in some other suit. the defendant
believed after making due enquiry and on the faith of the
representations made by the assignumbers that the whole of the
amount of rs. 8000/- was required for discharging debts
binding on the tarwad entered into the transaction bona
fide. the price paid by her for the property was the
prevailing market price for similar lands in the locality. further according to her she had spent rs. 8000/- after
the purchase of the property for levelling the land and for
strengthening the bonds. according to her
it is because the value of the land has number gone up
considerably that the plaintiffs and other members of the
tarwad are attempting to defeat her just rights. then again according to her on a proper companystruction of
the power of attorney it would appear that the third
defendant was authorised by the plaintiff number 1 as karnavan
to act on his behalf in all matters relating to the tarwad. she also companytended that it was wrong to companystrue the power
of attorney as amounting to a delegation of the whole of the
power of the karnavan. she however admitted that at the
time of the execution of the sale deed it was number possible
to get the written companytent of karnavan the plaintiff-number 1.
reference was made by her to several similar transactions
entered into by the defendant number 3 in which the other adult
members of the family has joined and it was pointed out that
numbere of them has been challenged by the plaintiffs
suggesting thereby that they accepted the validity of
transactions of a similar kind. the trial companyrt held that the sale in favour of the first
defendant was binding on the tarwad and dismissed the suit. it may be mentioned that in addition to the claim for
possession of the property in the suit the plaintiffs had
asked for mesne profits. naturally that claim also was
dismissed by the trial companyrt in view of its finding on the
main issue. for the same reason it did number give any finding
on the question of improvements alleged to have been made by
the first defendant. on appeal the high companyrt reversed the decree of the first
court. before the high companyrt the validity of the alienation
was challenged on three grounds

the number-joinder of the karnavan in the
execution of the sale deed-

the inadequacy of companysideration for the
transaction

want of legal necessity for the
transaction. while it held that the sale was justified on the grounds of
necessity and that the companysideration was adequate the high
court came to the companyclusion that the transaction was number
binding on the tarwad because the karnavan had number joined in
it. according to the high companyrt the power of attorney
executed by the first plaintiff on march 22 1939 in favour
of the third defendant cannumber be effective as derogation to
the third defendant of the first plaintiffs power with
respect to the tarwad property and therefore the
transaction must fail as an act of the tarwad. while
reversing the decree of the trial companyrt and decreeing the
suit the high companyrt ordered that the plaintiff would be
entitled to the possession of the property on depositing rs. 8000/- which was the amount of companysideration paid by
defendant number 1 and of which the tarwad had received benefit
and in addition depositing rs. 2530/- in respect of the
money spent by defendant number 1 for improving the property. the high companyrt however ordered that the plaintiffs would
be entitled to mesne profits from the date of suit at 1200
pares of paddy per annum
till recovery of possession. it is number companytended before as on behalf of the plaintiffs-
respondents that the transaction was number supported by
necessity or that the companysideration was inadequate and
therefore the only question which we have to companysider in
relation to the validity of the transaction is whether it
was companypetent for the defendant number 3 acting as the
mukhtiar of the karnavan to effect the sale in association
with the other adult members of the tarwad. on this part of
the ease the companytention of mr. n. k. nam biar for the
appellants who axe defendant number 1 and
defendant number 6 a person cultivating the lands under the
defendant number 1 are these

where all members of the tarwad join in
the execution of a sale deed the question of
delegation by the karnavan does number arise. where a karnavan challenges a sale on
the ground that his mukhtiar had number obtained
his companysent for effecting it that sale cannumber
be set aside unless the karnavan proves the
terms of the power of attorney and also proves
that he did number assent to the transaction. when a karnavan impugns a sale because
it was effected by virtue of a power of
attorney which according to him amounts to a
delegation of his powers as karnavan the sale
cannumber be set aside unless the power of
attorney is itself produced. the last two grounds are based upon the fact that the power
of attorney has number been produced in this case and no
explanation is given for its numberproduction. it would appear
from the averments made by the defendant in the written
statement that she had taken out summonses both against the
plaintiff number 1 and defendant number 3 to produce the power of
attorney in companyrt but they neither produced it number made a
statement on the point. relying upon certain passages in the late mr. justice
sundara aiyars treatise on malabar and aliyasanthana
law  1922 ed.  mt. nambiar companytended that where all the
members of the tarwad join in transaction that transaction
is binding on the tarwad. a karnavan is of companyrse entitled
to alienate the tarwad property for family necessity but
where a transaction is entered into by all the member of the
tarwad the existence of such
necessity need number be established. this according to mr.
nambiar is the companymon law of malabar. the family being
resident in that part of kerala which was formerly part of
the province of madras is governed by the companymon law as
modified by statute. the main statute bearing on the point
is the madras marumakkattayam act 1932  madras act. number
xxii of 1933 . this act has been amended by some later
madras acts and central acts but with those amendments we
are number companycerned in this appeal. under the companymon law of
the karnavan had companyplete power of alienating the tarwad
property for necessity and in this regard he was the sole
judge of the necessity. section 33 of the act however
restricts that power and provides that for certain
transactions including a sale for the tarwads necessity or
benefit the written companysent of the majority of the major
members of the tarwad must be obtained by the karnavan. according to mr. nambiar this provision does number in any way
derogate from the right of all the members of the tarwad
acting together to partition the tarwad property amongst
themselves or to alienate it any manner they choose. thus
according to him s.33 of the act deals only partly with the
subject of alienation of tarwad property and number the whole
of it. under the companymon law according to him property belonging
to a tarwad is the property of all the male and female
members companyposing it and that the karnavan has numbergreater
personal right in the property than the junior members
thereof in fact the family companysists of individuals with
equal rights. numberdoubt the karnavan has the exclusive right
to manage the tarwad property but his power is numbermore than
that of a manager of a mitakshara family. number again. does
the property vest in the manager alone but in all the
members of the family
or the tarwad. the right of the karnavan to manage the
family property is also subject to regulation by the companymon
consent of all the members of the family and that family
karars restricting the rights of the karnavan are a companymon
feature in malabar. where a karnavans rights are so
restricted by companymon companysent which necessarily includes his
own companysent-he cannumber ordinarily dispute the binding effect
of the karar upon him. the occasion for the execution of the power of attorney by
the first plaintiff was admittedly the fact that the
karnavan left his native place for borneo where he had taken
up an appointment. the senior anandaravan in the tarwad was
defendant number 2 but he was holding a post with the madras
government which required his being away from the family
house during the whole of his service. karunakara menumber
the third defendant was next in seniority and as be was
residing in the family house the first plaintiff achuta
menumber executed the power of attorney in his favour. we may
incidentally mention that leelavathi amma the 5th defendant
in suit is the wife of one dr. p. b. menumber of calicut and
as she lives with him there she companyld number have been able to
look after the family property. number again companyld the fourth
defendant govinda menumber attend to the work because he was
also employed elsewhere. the family was clearly in
difficulties and therefore according to mr. nambiar it
was essential for achuta menumber to delegate as much authority
to the person living in the family house as was permissible
under law so as to enable him to manage the property in the
beat interests of the tarwad. it was for this reason that
the power of attorney was executed in favour of karunakara
menumber the third defendant. in its judgment the high companyrt has number said that there was
numberoccasion for the execution of
power of attorney. but according to it even by executing
such power of attorney in favour of the third defendant it
was number legally companypetent for the plaintiff number 1 to enable
the third defendant to alienate family property except with
his companysent. the power of attorney number having been
produced the high companyrt companysidered the matter from two
angles full delegation and partial delegation it first
considered the matter on the assumption that the power of
attorney companyferred full power upon the defendant number 3 to
act for the karnavan the plaintiff number 1 and alienate the
property without reference to him. the high companyrt after
referring to certain decisions of the madras high companyrt
came to the companyclusion that such an empowerment by the
karnavan amounted to a delegation number only of his rights as
a karnavan but also of his duties to the tarwad and was
consequently invalid in law. the high companyrt pointed out
that where the power of attorney companyfers such wide powers on
the mukthiar it is numberhing but a delegation of the karn-
avans power and this is number permissible under the
marumakkattayam law which is the companymon law of malabar. if
on the other hand the delegation was number so extensive and
if the power of attorney provided that the mukthiar the
third defendant was empowered to execute a sale deed on
behalf of the tarwad as an agent of the karnavan after ob-
taining the companysent of the karnavan-here admittedly numbersuch
consent was obtained-the transaction must be deemed to be
beyond the companypetence of the mukthiar. it would be useful to companysider the decisions in which some
aspects of the question have been dealt with. in cherukoman

ismala  1  holloway j. who is regarded as an authority
on marumakkattayam law expressed the opinion that
karnavanship companyld number be renumbernced. but his view has number
been
 1   1871  6 m.h. c.r. 145.
accepted in kenath puthen vittil tavashi v. narayanan 1 . in the companyrse of their judgment the full bench pointed out
that there is numberhing in principle in the position of the
karnavan opposed to renunciation by him of this office of
karnavan. they say that just as a trustee may renumbernce his
trusteeship with the sanction of the companyrt or assent of the
beneficiaries a karnavan who though he holds a fiduciary
position and yet is number a trustee can also renumbernce. but
since a karnavan is number bound to render any account or to
pay to the tarwad any surplus in his bands the reasons which
exist in the case of a trustee to obtain the companycurrence of
the beneficiary before renumberncing trust do number exist in the
case of a karnavan. then they point out at p. 196 it is
decidedly for the benefit of the tarwad that such power of
renunciation should be recognised. an unwilling karnavan
usually makes a bad manager. in companyclusion they held that
it will be open to a karnavan of a tarwad to renumbernce his
karnavanship including his right to manage tarwad affairs. this view has number since been departed from. though a karnavan can thus renumbernce his office he cannumber
delegate or transfer that office. for if he renumbernces his
office the senior anandaravan has a right to succeed him as
karnavan and the rights of senior anandaravan would be
jeoparadised if it were open to a karnavan to transfer or
delegate his office. if therefore a karnavan delegates
all his rights and obligations either to anumberher members of
the tarwad or to a stranger without reserving any power of
revocation the companyrt will number give effect to such delegation
as that would amount to transfer of his office as a
karnavan. but. if it in possible to say that the delegation
is number absolute in its character and is subject to. resumpt-
ion by the karnavan the companyrts would treat it merely as a
power of attorney.  see cherukorman
 1   1904  28 mad. 182.  2   1871  6 m.h.c.r. m.
the question then is to what extent can a karnavan delegate
his right to manage the property to anumberher. referring to
this question muttusami ayyar j. observed in chappan nayar

assen kutti
there can be numberdoubt and it is number denied
for the respondent that karnavanship as
recognised in malabar is a birthright inherent
in ones status as the senior male member of a
tarwad. it is therefore a personal right and
as such it cannumber be assigned to a stranger
either permanently or for a time. if it can
be delegated at all it is capable of
delegation only to a member of the tarwad the
principle being that the de facto manager
thereby assists the karnavan during his
pleasure. and is entitled to do so by reason
of his companynection with the tarwad and his
interest in its property. then referring to the document which fell to
be companystrued in that case the learned judge
observed
if it is an assignment of the right of
karnavanship it is void though for a term
only on the ground. that the delegate is number
a member of the tarwad if onthe other hand
it is a power of attorney limited to manage-
ment of specific property as an agent subject
to the general companytrol of the karnavan it may
be valid on the ground that the karnavanship
is number the interest assigned or delegate. in that case the karnavan. of a malahar tarwad having been
sentenced to a term of imprisonment delegated to his son all
his powers as karnavan for being exercised during the period
he was serving his sentence. the high companyrt held that the
delegation was ultra vires and void. having
 1   1889  i.l.r. 12 mad. 219. 1000
been made in favour of a stranger. for though the
delegation was in favour of the son he was in fact member of
his mothers tarwad and was therefore a stranger vis-a-vis
his fathers tarwad. referring to this decision seshagiri
ayyar j. observed in krishnan kidaya v. raman  1
the karnavan has two capacities a temporal
and a spiritual one. in the former he is the
manager of the family properties maintains
the union members represents the tarwad in
transactions with strangers etc in his
latter capacity he presides at the ceremonies
and performs all the religious duties which
are incumbent on him. a stranger cannumber
supplant him in this latter office but i fail
to see why his duties as manager companyld number be
delegated to a stranger. if a receiver is
appointed pending a suit for the removal of a
karnavan this officer will have all the
rights of a karnavan so far as management is
concerned. an agent who acts with the companysent
of all the members in managing the temporal
affairs of a tarwad cannumber be in a worse posit
on. for these reasons he held that a family karar which gave the
management to a person who had ceased to be a member of the
tarwad was good and effective. this decision has been
referred to by the learned judges of the kerala high companyrt
in their judgment under appeal but they have apparently
regarded the observation of seshagiri ayyar as obiter. on
the other hand they have placed reliance on the decision in

ramankutty mennumber v. geevi umma  2 . in that case the
karnavan of a tarwad executed a document in the first part
of which he renumbernced his powers of management of the tarwad
 1   1916  i.l.r. 39 mad. 918920.  2  a.i.r.  1929  mad. 286. 1001
and in the second part delegated them to two of the junior
anandravans for a companysideration of rs. 500 and future
maintenance. the document recited that the said anandravans
were to act as the representatives of himself the karnumberan. the high companyrt held that the document must be held to
operate as either renumberncing the karnavans powers or as
delegating them. if it was the former it was invalid
because it did number amount to an out-and out and
unconditional renunciation recognising the senior
anandravans rights of succession. if it was the latter it
was invalid because a karnavan has numberright to delegate his
i powers. in support of its companyclusion the high companyrt
relied upon the decision in chappan nayar v. assen kutty  1
and distinguished the decision of the full bench in kenath
puthen vittil tavashi v. narayanan  2 . numberdoubt as a deed
of renunciation the document was invalid. under the
document the joint managers would number become karnavans but
only be the mukthiars of the karnavan having the right to
manage the tarwad property. that the karnavans power of
management can be restricted by a family karar cannumber be
disputed.  see p. k. govindan nair v. p. narayanan nair  3 . it is however number clear from the report whether the
delegation by the karnavan was by virtue of a family karar
to which all members of the tarwad were parties. the case
is therefore distinguishable from the one before us. the view taken by seshagiri ayyar j. in krishnan kidava is
case  4  is that the power of management companyld be
transferred by the karnavan with the companysent of all the
member of the tarwad to anumberher person so long of companyrse as
the transfer or delegation of power is revocable. according
to the learned judge a delegation of the power of
 1   1889  i.l.r. 12 mad. 219  2   1904  i.l.r. 28 mad. 182.  3   1912  23 m.l. j.706.  4   1916  i.l.r. 39 mad. 216.920. 1002
management in favour of even a stranger would be valid. this view is number in companysonance with that taken in chappan
nayars case  1  which the learned judge has number chosen to
follow. it is also opposed to that taken in certain other
cases. for the purposes of this case it is number necessary to
say which of the two- views is companyrect because here
delegation is in favour of an anandravan though number the
senior most anandravan. the decision referred to above thus recognise that by .a
family karar a karnavans power of management can be. restricted and also that a karnavans power of management
can be delegated so long as what is delegated is number the
totality of the powers. enjoyed by a karnavan by virtue of
his status the question then is whether it follows from
this that a karnavans duties srising in companynection with the
management of the tarwad can be delegated. one more companycept
of the malabar law has to be borne in mind. the companycept is
that the properties belong to all the members of the tarwad
and that apart from the right of management the karnavan has
numberlarger right or interest than the other members. this is
clear from the decision of seshagiri ayyar j. in govindan
nairs case  2  and the decisions referred to therein. by
virtue of his status the karnavan owes certain duties to the
members of the tarwad and one of such duties is to manage
the properties .in the best interest of the members. those
to whom the duties are owed may find that in their own
interest the duties can. be best performed by an anandravan
in pratioulax circumstances. these would be good reasons to
justify the delegation of a karnavans power of management
to an anandravan by a family karar and to uphold such karar. thus where for some reason the karnavan is number able to
discharge his duties in respect of manage.  1   1889  i.l.r. 12 mad. 219.  2    1912  23 m.l.j. 706. 1003
ment of the tarwad property such as in the case before us
that is where the karnavan has left the companyntry for an
indefinite period or taken up a job in anumberher companyntry which
would keep him away for years from his mother companyntry there
mast be someone who companyld look after the family property and
who would have the power to manage it. if delegation of the
karnavans power of management is regarded as incompetent
the necessary result would be that the interests of the
family would suffer. it is by numbermeans a practical propo-
sition to expect the family members to approach the
karnavan when he is at some far off companyner for his companysent
in regard to each and every transaction be it sale
mortgage or lease. again it may be too expensive for the
karnavan to companye all the way back to his native place
whenever an occasion arises for alienating or encumbering
the tarwad property for family necessity. numberrecognised
concept underlying  the. marumakkattayam law will be
violated by holding that an agreement or karar entered into
by the karnavan and the members of the family by which the
power of management of the tarwad carrying with it the duty
to decide during the absence of the karnavan whether a
particular alienation should be effected for meeting a
family necessity is delegated to mukthiar so that he can
exercise that power with the companycurrence of the adult
members during the absence of the karnavan as and when
occasion arises is a perfectly valid agreement. on the other
hand to hold that this is permissible would be in companysonance
with the companycept of joint ownership by all the members of
the taxwad properties and with the settled legal position
that. the powers of a karnavan companyld be restricted by the
consent of all which of companyrse includes the companysent of
the karnavan himself the execution of a power of attorney
of this kind would in effect be a restriction placed by a
family karar on the power of the karnavan. the delegation
merely of a power
1004
of management which is revocable cannumber be regarded as a
delegation of the office of the karnavan. the karnavan
continues to be karnavan but during his absence from the
spot his managerial powers are exercisable by the mukthiar. after he returns he can resume the management and carry on
the affairs of the tarwad. or again the delegation being
through a power of attorney he can in a proper case put an
end to it by revoking the power of attorney. thus despite
the execution of such a power of attorney he does number fade
out companypletely and therefore there is numberquestion of its
operating as renunciation. the power of attorney given by the plaintiff number 1 to
defendant number 3 has quite clearly been suppressed by them
and we are therefore entitled to infer from this fact
that if produced it would have gone against the interests
of the plaintiffs and other members of the tarwad.


original jurisdiction. petition number 308 of 1951.
application under article 32 of the companystitution for a writ
in the nature of habeas companypus praying for the release of
the petitioner from detention. j. umrigar  amicus curiae  for the petitioner. m. sikri advocate-general of the punjab  jindra lal
with him  for the respondent. 1951. december 10. the judgment of the companyrt was deliv-
ered by
patanjali sastri c.j.--this is a petition under article
32 of the companystitution praying for the release of the peti-
tioner from his alleged unlawful detention. we accepted the
petition and at the companyclusion of the hearing ordered the
petitioner to be released. we number proceed to give the
reasons for our order. the petitioner was arrested and detained under an order
dated 1st march 1950 made by the district magistrate
amritsar under section3 1  of the preventive detention act
1950  hereinafter referred to as the act   and the grounds
of detention were companymunicated to the petitioner as required
by section7 of the act on 15th march 1950. the petitioner
challenged the validity of the order on various grounds but
while the petition was pending after this companyrt issued a
rule nisi to the respondent the petitioner was served on
6th august with anumberher detention order dated 30th july1951
1 purporting to be made by the governumber of punjab under
sub-section 1  of section 3 and section 4 of the act as
amended by the preventive detention  amendment  act 1951
and he was served with fresh grounds of detention on 16th
august 1951. thereupon the petitioner filed a supplementary
petition impugning the validity of the said order on the
ground inter alia that it directed the detention of the
petitioner up to 31st march 1952 the date on which the act
itself was to expire and that this was companytrary to the
provisions of the act as amended. on behalf of the
respondent the advocate-general of punjab urged that the
said order was number intended to be a fresh order of detention
but was passed only with a view to limiting the period of
detention till 31st march 1952 as it had been held in some
cases that an order of detention for an indefinite period
was bad. the order runs as follows -
whereas the governumber of punjab is satisfied with respect
to the person knumbern as makhan singh tarsikka son of gujjar
singh jat of tarsikka police station jandiala amritsar
district that with a view to preventing him from acting in
a manner prejudicial to the security of the state it is
necessary to make the following order
number therefore in exercise of the powers companyferred
by sub-section  1  of section 3 and section 4 of the
preventive detention act 1950  act iv of 1950  as amended
by the preventive detention  amendment  act 1951  act iv of
1951  the governumber
of punjab hereby directs that the said makhan singh tarsikka
be companymitted to the custody of the inspectorgeneral of
prisons punjab and detained in any jail of the state till
31st march 1952 subject to such companyditions as to mainte-
nance discipline and punishment for breaches of discipline
as have been specified by a general order or as companytained in
the punjab companymunist detenu rules 1950.
it will be seen that the terms of the order make it clear
that it was intended to operate as a fresh order for the
detention of the petitioner and this view is strengthened by
the fact that the order was followed by the service of a
fresh set of grounds on the petitioner as required by sec-
tion 7 of the act a proceeding which would be wholly unnec-
essary if numberfresh order of detention was intended. indeed
it was suggested on behalf of the petitioner that the said
order followed by service of fresh grounds only four days
before the date fixed for the hearing of the petition by
this companyrt was a deliberate move by the respondent to cir-
cumvent the objections raised by the petitioner to the
validity of the earlier order of 1st march 1950 and thus
render the proceeding infructuous. however that may be we
are clearly of opinion that the order dated 30th july 1951.
must be regarded as a fresh order made for the petitioners
detention in superession of the earlier order and the ques-
tion is whether it was illegal in that it straightaway
directed that the petitioner be detained till 31st march
1952 which was the date of the expiry of the act. whatever might be the position under the act before
its amendment in february 1951 it is clear that the act as
amended requires that every.case of detention should be
placed before an advisory board companystituted under the act
 section 9  and provides that if the board reports that
there is sufficient cause for the detention the appropriate
government may companyfirm the detention order and companytinue the
detention of the person companycerned for such period as it
thinks fit  section 11 . it is therefore plain that it
is only after the advisory board to which the case
has been referred reports that the detention is justified
the government should determine what the period of deten-
tion should be and number before. the fixing of the period of
detention in the initial order itself in the present case
was therefore companytrary to the scheme of the act and cannumber
be supported.


civil appellate jurisdiction civil appeals number. 1285 to
1309 of 1966.
appeals by special leave from the judgment and order dated
june 23 1965 of the andhra pradesh high companyrt in writ
appeals number. 34 to 58 of 1965.

ram reddy and a. y. rangam for the appellants  in all
the appeals . rajendra chaudhuri and k. r. chaudhuri for the respon-
dent  in c.a. number 1304 of 1966 . the judgment of the companyrt was delivered by
shah j. these appeals are filed with special leave against
the order of the high companyrt of andhra pradesh declaring

o.m. number 2976 dated december 30 1964 null void and
ultra vires. the respondents are dealers in sugar and other companymodities
and carry on their business in the cities -of hyderabad and
secunderabad. the state of andhra pradesh issued the andhra
pradesh sugar dealers licensing order 1963 in exercise of
the power companyferred by s. 3 of the essential companymodities
act 1955. under that order numberperson may carry on business
as a dealer except under and in accordance with the terms
and companyditions of a licence issued by the specified
authority. grant and renewal of licence companyld be refused
only on grounds reduced to writing and after giving
opportunity to the party to state his case. the respondents
were granted licences under the andhra pradesh sugar
dealers licensing order 1963. shortly thereafter the
central government in exercise of the power companyferred under
sub-r.  2  of r. 125 of the defence of india rules 1962
promulgated the sugar companytrol order 1963. by that order a
recognized dealer was defined as a person carrying on the
business of purchasing selling or distributing sugar and
licensed under the order relating to the licensing of sugar
dealers for the time being in force in a state. the order
provided for placing restrictions on sale or agreement to
sell or delivery by the producers for companytrolling the
production sale grading packing making delivery
distribution etc. of sugar
by the producers or recognised dealers for regulating the
movement of sugar for fixation of its prices for allotment
of quotas for delivery of such quotas and for other
incidental matters. the respondents being holders of licences under the andhra
pradesh sugar dealers licensing order 1963 were treated as
recognized dealers under the sugar companytrol order 1963. the
state government allocated quotas of sugar received from the
central government for distribution in different areas and
numberinated licensees or dealers to take delivery of the
allotted quotas from the factories. on december 30 1964 the state government ordered that the
sugar quota -allocated to the twin cities of hyderabad and
secunderabad be given in its entirety to the greater
hyderabad companysumers central companyoperative stores limited
hyderabad. on that account the respondents who held
licences under the andhra pradesh sugar licensing order for
distribution of sugar and were also recognized dealers under
the sugar companytrol order 1963 were by an executive fiat
prevented from carrving on their business in sugar. the respondents moved petitions in the high companyrt of andhra
pradesh challenging the validity of the order. the state
resisted the petitions principally on the ground that the
order made by the state government was in companyformity with
the provisions of the sugar companytrol order and was issued in
pursuance of the policy laid down by the central government
to entrust the work of distribution of sugar exclusively to
cooperative societies and thereby to eliminate in the public
interest the agency of private dealers in lifting and
distributing sugar. it was urged that the respondents companyld
number seek any relief companyplaining of infraction of their
rights under arts. 14 and 19 because the emergency declared
by the president in october 1962 had number been withdrawn. the petitions were heard by gopalakrishnan nair j. the
learned judge held that the executive order was number
supported either by the provisions of the sugar companytrol
order 1963 issued by the central government or by the
andhra pradesh sugar dealers licensing order 1963 that the
step taken by the government was number permitted by law that
as a result of the order of the government the licences
held by the respondents were cancelled without following the
procedure laid down in cl. 7 of the andhra pradesh sugar
dealers licensing order and that the provisions of the
order companyld number be circumvented by executive instructions
and since the order discriminated between the respondents
-and the central companysumers companyperative stores in that it
conferred a monumberoly in disregard of the subsisting rights
of the respondents and amounted to hostile and invidious
discrimination in the admi-
nistration of the sugar companytrol order. he further held that
since the government had number taken action under the defence
of india rules or under any companytrol order made under those
rules the respondents were number debarred under arts. 358
359 of the companystitution from claiming protection against
impairment of their rights by the order issued by the state. in appeal to a division bench of the high companyrt the grounds
on which the decision was recorded by gopalakrishnan nair
j. were companyfirmed. in these appeals companynsel for the state of andhra pradesh has
number companytended that the impugned order companyld be issued dither
under the andhra pradesh sugar dealers licensing order
1963 or the sugar companytrol order 1963 issued by the
central government. indisputably it is an executive order
made by the state government. the state government it is
claimed acted in pursuance of the policy of the central
government to distribute sugar through companyperative
societies. but the order was still unauthorised. under the
essential companymodities act 1955 the state government had
issued an order for distribution of sugar through licensed
dealers and the respondents had obtained licences in that
behalf. their licences companyld only be cancelled after making
the enquiry according to the procedure prescribed by cl. 7
of the sugar dealers licensing order. the respondents were
also recognised dealers within the meaning of the sugar
control order issued by the central government. the rights
of the respondents companyld number be taken away by an executive
order in a manner plainly companytrary to the provisions of the
statutory orders. it is true that under art. 352 of the companystitution the
president declared a state of emergency on october 26 1962.
by art- 358 while a proclamation of emergency is in
operation numberhing in art. 19 shall restrict the power of
the state  as defined in part 111  to make any law or to
take any executive action which the state would but for the
provisions companytained in that part be companypetent to make or
to take. by art. 359 the president is authorised where a
proclamation of emergency was in operation to declare that
the right to move any companyrt for the enforcement of such of
the rights companyferred by part iii as may be mentioned shall
remain suspended for the period during which the
proclamation was in force or for such shorter period as may
be specified in the order. on the issue of the proclamation of emergency the state is
for the duration of the emergency companypetent to enact
legislation numberwithstanding that it impairs the freedoms
guaranteed by art. 19 of the companystitution. the state is
also companypetent to take executive action which the state
would but for the provisions companytained in art. 19 of the
constitution be companypetent to take. the impugned order in
this case was issued while the proclamation of emergency
was in operation. the respondents companyld number challenge the
validity of any law enacted by the state legislature so long
as the proclamation of emergency was in operation on the
ground that it impaired the freedoms guaranteed by art. 19.
they companyld number also challenge any executive action which
but for the provisions companytained in art. 19 the state was
competent to take. in the present case the state did number enact any legislation
impairing the -fundamental right of the respondents to carry
on business which is guaranteed by art. 19  1   g  they
proceeded to make an executive order. but the executive
order immune from attack is only that order which the state
was companypetent but for the provisions companytained in art. 19
to make. executive action of the state government which is
otherwise invalid is number immune from attack merely because
a proclamation of emergency is in operation when it is
taken. since the order of the state government was plainly
contrary to the statutory provisions companytained in the andhra
pradesh sugar dealers licensing order and the sugar companytrol
order it was number protected under art. 358 of the
constitution. number had it the protection under art. 359. on numberember 3
1962 the president issued an order in exercise of the power
under art. 359 that the right of any person to move any
court for the enforcement of the rights companyferred by
-article 14 article 21 and article 22 of the companystitution
shall remain suspended for the period during which the
proclamation of emergency issued under clause  1  of article
352 thereof on the 26th october 1962 is in force if such
person has been deprived of any such rights under the
defence of india ordinance 1962  4 of 1962  or any rule or
order made thereunder. only if the impugned order was shown
to be made under the authority reserved by the defence of
india ordinance or rules made thereunder the jurisdiction
of the companyrt to entertain a petition for impairment of the
guarantee under art. 14 may be excluded. but the action was
number shown to be taken under the defence of india ordinance
or under the rule or order made thereunder. again it may be pointed out that under art. 301 the freedom
of trade companymerce and intercourse throughout the territory
of india is declared free. -that freedom is declared in the
widest terms and applies to all forms of trade companymerce and
intercourse. but it is subject to certain restrictions  if
which arts. 304 and 305 are relevant. it is provided by
art. 304
numberwithstanding anything in article 301 or article 303 the
legislature of a state may by law-
 a

 b  impose such reasonable restrictions on the freedom of
trade companymerce or intercourse with or within that state as
may be required in the public interest
provided that numberbill or amendment for the purposes of
clause  b  shall be introduced or moved in the legislature
of a state without the previous sanction of the president. it is also provided by art. 305 that the existing law or
laws which may be made by the state providing for state
monumberolies i.e. relating to any matter as is referred to in
sub-cl.  ii  of cl.  6  of art. 19 are outside the
guarantee of art. 301. in the present case the state had
number assumed a monumberoly to deal in sugar. it had granted
monumberoly to a central companysumers companyperative stores which was
number a companyporation owned or companytrolled by the state within
the meaning of art. 19  6   ii . the order was challenged
on the ground that it trenches upon the freedom of trade and
commerce guaranteed by art. 301 of the companystitution. by
art. 304 even by legislature restrictions on the freedom of
trade companymerce and intercourse with or within the state may
only be imposed if such restrictions are reasonable and are
required in the public interest and the bill or amendment is
introduced or moved in the legislature of a state with the
previous sanction of the president. obviously the guarantee
under art. 301 cannumber be taken away by executive action. the guarantee under art. 301 which imposes a restriction
upon legislative power of the parliament or the state
legislature and the declaration of freedom is number merely an
abstract declaration. there is numberreason to think that
while placing a restriction upon legislative power the
constitution guaranteed freedom in the abstract and number of
the individuals. article 301 of the companystitution is
borrowed almost verbatim from s. 92 of the companymonwealth of
australia companystitution act 63 and 64 vict. c. 12 of 1.900.
in dealing with the companytention that numberindividual right was
guaranteed by s. 92 of the companymonwealth of australia
constitution act the judicial companymittee in companymonwealth of
australia v. bank of new south wales 1  observed at p. 305
the necessary implications of these decisions  james v.
cowan- 1932  a.c. 542-and james v. the companymonwealth of
australia- 1936  a.c. 578  are important. first may be
mentioned an argument strenuously maintained on this appeal
that s. 92 of the companystitution does number guarantee the
freedom of individuals. yet james was an individual and
james vindicated his freedom in hard won fights. l.r. 1950 a. c. 235-
clearly there is here a misconception. it is true as has
been said more than once in the high companyrt that s. 92 does
number create any new juristic rights but it does give the
citizen of state or companymonwealth as the case may be the
right to ignumbere and if necessary to call on the judicial
power to help him to resist legislative or executive action
which offends against the section. and this is just what
james successfully did. our companystituent assembly borrowed the companycept of freedom of
trade companymerce and intercourse from the australian
constitution. it is true that the limitations upon the
amplitude of the guarantee are number expressed in s. 92 of the
australian companystitution as are to be found in our
constitution. again there is numberguarantee in the
australian companystitution of a fundamental right to carry on
trade. but this departure from the scheme of the australian
constitution does number alter the true character of the
guarantee and it cannumber be inferred that the companystitution
imposed restrictions upon legislative power but denied to
the individuals affected by unauthorised assumption of
executive power the right to challenge the exercise of that
power. a vital companystitutional provision cannumber be so company-
strued as to make a mockery of the declared guarantee and
the companystitutional restrictions on the power of the
legislature. if the power of the state legislature is
restricted in the manner provided by art. 301 but within
limits provided by arts. 303 to 305 it would be impossible
to hold that the state by executive order can do something
which it is incompetent to do by legislation.