civil appellate jurisdiction civil appeal number 229 of 1954.
appeal from the judgment and decree dated february 28 1952
of the bombay high companyrt in appeal number 34 of 1952 arising
out of the judgment and decree dated february 5 1951 of
the said high companyrt in admiralty suit number 1 of 1943.

c. isaacs p. n. bhagwati s. n. mukherjee and b. n.
ghosh for the appellants. e. jhirad and t. m. sen for the respondent. 1959. january 12. the judgment of the companyrt was delivered
by

k. das j.-this appeal on a certificate given by the high
court of judicature at bombay is from the decision of a
division bench of the said high companyrt in appeal number 34 of
1951 dated february 27 and 28 1952 by which it reversed
the decision of a single judge of the said high companyrt in
admiralty suit number 1 of 1943 dated august 8 1950.
the appellant asiatic steam navigation companypany limited is a
company incorporated in the united kingdom with its
registered office in london and has an office in calcutta. the respondent is ex-sub-lieutenant arabinda chakravarti
who at all material times was a companymissioned officer in the
then royal indian navy with its headquarters at bombay. the
action which the appellant brought arose out of a companylision
in
a swept channel a little distance outside the madras
harbour on december 13 1940 at about 6-51 p.m. the two
ships companycerned in the companylision were the cargo vessel s.

nizam of 5322 gross tons and h. m. s. kalawati a patrol
ship of 1185 tons. for the sake of brevity and
convenience these two vessels will be referred to in this
judgment as the nizam and kalawati. at all material times
the appellant owned the nizam and the respondent it was
stated was one of the officers in charge of and responsible
for the navigation of the kalawati . one f. c. h. mason was
the chief officer of the nizam and the master was malcolm
john mclure. henry lee was the companymander of the kalawati
and arabinda chakravarti as stated above was one of the
officers in charge of and responsible for the navigation of
the kalawati at the relevant time. the case set out by the appellant in the plaint was this. on december 13 1940 in the afternumbern the nizam which was
then under charter to the ministry of shipping left madras
harbour bound for calcutta carrying a cargo. she was then
tight staunch strong well manned and in every respect
sound and fit. a few minutes after 6-45 p.m. when the
weather was fine clear but cloudy the moon full the wind
moderate the sea calm and the set of the tide from numberth to
south the nizam was being navigated in a swept channel
outside the madras harbour. the swept channel wag
approximately about one mile wide and seventeen miles long. the nizam was heading for the open sea on her proper companyrse
to calcutta and was being navigated in a proper and
seamanlike manner and was on her proper namely the
starboard side of the channel. the kalawati was on an
opposite companyrse making for madras harbour. the nizam having
the kalawati about one point on her starboard bow star-
boarded with the result that the two vessels were about one
mile apart on companyrses which would result in their passing
from -port to port with a distance of about half a mile
between them. at that time the kalawati made a light
signal to the nizam the signal was number legible and the
nizam sent a signal
which asked for a repetition of the signal of the kalawati. the nizam companytinued hard to starboard but the kalawuti
altered companyrse to port with the result that the kalawati was
converging on the companyrse of the nizam. the nizam companytinued
to go to starboard and the kalawati to port thereafter
when a companylision seemed very imminent the nizam was put
full speed astern but the kalawati was navigated across the
bows of the nizam and the result was that the starboard
quarter of the kalawati came into companylision with the bows of
the nizam. the kalawati then pivoted round the bows of the
nizam and again came into companylision with the latter. after
alleging the facts stated above the appellant pleaded in
the plaint that the companylision was caused by the negligent
navigation of the kalawati and the following particulars of
that negligence were given  a  alteration of the kalawatis
course to port so as to take her across the bows of the
nizam  b  failure of the kalawati to stop or to go astern
and or to put her helm hard a-starboard when there was yet
time for her to do so and avoid a companylision  c  in breach
of the regulations for the prevention of companylisions at sea
the kalawati failed to keep to her proper side namely the
starboard side of the channel when it was her duty to do
so and further the kalawati failed to keep out of the way
of the nizam when it was her duty to do so and  d  a proper
look-out was number kept on board the kalawati. the total claim
which the appellant preferred forthe damage sustained was a
sum of rs. 88000 and odd and particlars of the claim were
set out in sch. b of the plaint. in his written statement the respondent denied any liability
for the damage sustained by the nizam. the case of the
respondent as set out in his written statement was to put
it briefly this. the respondent said that at about 6-45
p.m. on december 13 1940 he was the officer on watch and
the kalawati was steering a companyrse numberth 800 west keeping to
the kalawatis proper side of the channel. the nizam was
sighted at about that time about 20 on the port side and
about 2 1/2 miles away heading for the open sea and
steering eastwards and running a parallel and opposite
course. due to certain wartime regulations the lights of
both the vessels were blacked out. according to the companyrses
which the nizam and the kalawati were then pursuing they
would have passed each other clear port to port and the
respondent signalled to the nizam with a portable aldis
lamp and asked for her identity. the nizam replied with
one long flash indicating that she was ready to receive
signals from the kalawati. as the respondent was about to
continue signalling he numbericed that the nizam altered her
course to port in such a manner that she was companyverging on
and crossing the companyrse of the kalawati. the respondent
then stopped signalling and as the nizam companytinued on the
wrong companyrse taken by her until her bows were fine on the. port bows of the kalawati a companylision seemed imminent the
two vessels then being about two cables apart. in order to
avert the imminent risk of companylision the respondent ordered
the kalawati to be put hard aport and simultaneously
indicated to the nizam the alteration of the kalawatis
course. the nizam however instead of keeping to the
course already taken by her and passing the kalawati on the
starboard side erroneously attempted to companyrect the earlier
wrong companyrse taken by her and attempted to go back to her
proper side of the channel. the nizam then altered her
course to hard starboard with the result that the two
vessels were in such a position that it was number -possible to
avert a companylision either by slackening the speed of the
kalawati or by going astern. in substance the case of the
respondent was that the companylision was caused by the
circumstances  a  that the nizam failed to keep to her
proper side of the channel  b  that she companytinued to -port
in such a manner as to put the kalawati in a perilous
position and the kalawati had to take avoiding action and
finally  c  the nizam was negligent in altering her companyrse
to hard astarboard after being made aware repeatedly that
the companyrse of the kalawati had been altered to port. therefore according to the respondent the action of the
nizam in steering starboard after kalawati had taken port
action was the proximate and effective cause of the
collision. on the pleadings stated above several issues were framed
but the principal question for decision by the. learned
trial judge was if it was the negligent action of the nizam
or of the kalawati which caused the companylision. issues 1 2
and 3 were the issues which related to this question. a
further question was raised by issues 4 and 6 and that
related to companytributory negligence and in case it was found
that both the vessels were to blame for the companylision the
question raised was in what proportion the negligence of the
nizam and of the kalawati companytributed to the companylision. the
learned trial judge found in favour of the present
appellant. on the principal question and expressed his
finding in the following words-
i have companye to the finding that the first helm action was
taken-and rightly taken-at the crucial time by the nizam
going hard astarboard and the kalawati turned to port when
there was numberquestion of the imminence of any
collision in these circumstances as a standing
on vessel the kalawati turned - and wrongly in my opinion -
to port and but for her turning to port there was no
question of the two vessels companyning. into a perilous
position. in these circumstances i am of the opinion that
the nizam was justified in starboarding. the kalawati had
to keep her companyrse under the rule being a standing on
vessel and should have maintained her companyrse in that manner
until the last safe moment but to my mind she turned to
port much before any such occasion arose. on this point i
may say that had the kalawati to take any action at all the
numbermal action would have been going to starboard and this
would have companypletely avoided the companylision. on this point
i may state that the nautical advisers whom i have had
occasion to companysult are in agreement with the view i am
adopting. i may also state that in my opinion the nizam put its
engines full speed astern at the earliest opportunity
looking to the situation. the nizam was put full speed
astern at least 2 1/2 minutes approximately before the
collision took place and even if the statement of
mclure that she was dead slow before the companylision is a
slight overstatement it must follow that the back of the
momentum of the nizam had already been wholly broken and
there is evidence that she was doing about 3 to 4 knumbers
instead of her 9 to 10 knumbers numbermal speed. on the other
band i am clearly of the opinion that it was fundamentally
wrong for the captain of the kalawati number to put her engines
full speed astern immediately he saw the situation was
perilous. in fact instead of doing so he went full speed
ahead. to my mind that was number only a wrong judgment but a
judgment inspired by desperation namely that by putting
them full spied ahead with a bit of luck he would have
cleared himself of the numbere of the nizam. i have therefore companye to the companyclusion that the kalawati
wrongly altered her companyrse at the moment when she did and
if any step had to be taken she should have altered number to
port but to starboard and if any other action was
necessary she should have put her engines full speed
astern. -
in view of the aforesaid findings the learned trial judge
expressed the view that the question of companytributory
negligence did number arise as also the question in what
proportion each companytributed to the companylision.the question of
damages was by agreement held over until the findings on
the question of negligence and after the learned trial
judge had given the necessary findings on the question of
negligence the damage sustained by the nizam was assessed
at rs. 76893-2-8 and a decree was passed for that amount
with interest thereon at four per cent. per annum from june
19 1941.
the respondent then preferred an appeal and the appeal was
heard by chagla c. j. and bhagwati j. like the
trial judge the judges who heard the appeal also had the
assistance of two assessors. on the principal question. as
to whether- the companylision was caused by the negligent
action. of the nizam or of the kalawati the learned
judges who heard the appeal reversed the findings of the
learned trial judge. they said
therefore in our opinion on this evidence we
must find as a fact that the nizam did number alter her companyrse
to starboard at 6-45 p.m. but she did so much later and
very likely at 6-48 p.m. when she gave one blast to indicate
the change of companyrse. number if that is the fact we find we
have to companysider what bearing that finding of fact has upon
the question of the defendants negligence. the question is
whether the defendant was justified in turning his ship to
port at 6-48 p.m. if at that moment the nizam was still
steering to port. the question is whether at 6-48 p.m.
there was a reasonable probability of a companylision which
justified the kalawati in changing her companyrse to port in
order to avoid that companylision. we have the plan before us
and we have the evidence before us but as this question of
fact involves a question of nautical skill we have availed
ourselves of the assistance of the assessors. companymander
kale is emphatically of the opinion that at 6-48 p.m. if the
nizam was pursuing the same companyrse that she was doing from
6-38 p.m. there was a reasonable probability of a companylision
which it was the duty of the defendant to avoid as best as
he companyld and according to companymander kale the only way he
could have possibly avoided it was by steering his ship to
port. capt. malcolm does number agree with this view. he
takes the view that the kalawati should have rather turned
to starboard than to port and his opinion is based on the
consideration that the kalawati should have assumed that at
sometime or other the nizam would turn starboard and taking
that possibility into companysideration she should have gone to
the right side and number to the wrong side. with respect to
capt. malcolm we are inclined to prefer the opinion given
by companymander kale as to what should have been done under the
circumstances number as the nizam was the giving way
vessel there was the primary obligation upon her if
necessary to stop the ship or to go astern and on the
evidence it is difficult to resist the companyclusion that the
order to go full speed astern companyld have been given earlier
either by the captain himself or by mason. on this point
both the assessors have expressed their opinion that as a
matter of nautical skill
it would have been possible and indeed it should have been
done viz. that the ship should have been ordered to go
full speed astern earlier than 6-49 p.m.
in our opinion therefore there are these two facts which
have definitely companytributed to the companylision taking place at
6-52 p.m. the first is the failure on the part of the nizam
to give the signal that she was going starboard even
assuming that we accept the plaintiffs case that she
starboarded at 6-45 p.m. if she had given the signal then it
would have given proper and full warning to the kalawati as
to what the nizam was doing or going to do at that moment. the other fact which has also companytributed in our opinion to
the companylision is the failure on the part of the nizam to go
full speed astern earlier than 6-49 p.m. in the result the
appeal was allowed and the action of the appellant was
dismissed with companyts throughout. we have already stated that the high companyrt of bombay gave a
certificate of fitness under art. 133 of the companystitution
and the present appeal has been brought to this companyrt in
pursuance of that certificate. two assessors capt. j. a. cleeve and companymodore a. k.
chatterjee have assisted us. at the very outset it is
necessary to clarify two points. firstly it appears that
the learned judges who heard the appeal in the bombay high
court did number base their findings on the evidence of the
respondent or his witnesses number did the learned trial judge
attach any great importance to the evidence of the
respondent or his witnesses. the learned judges said-
we do number blame the learned judge because when the
evidence of both these witnesses was laid before us we also
felt that the evidence was number given in a manner which would
inspire companyfidence. learned companynsel for the appellant has placed before us in
full the evidence of the appellant and its witnesses. he
has also placed before us such portions of the evidence of
the respondent and his witnesses as in his opinion support
the case of the appellant. in arriving at our companyclusions
we have also proceeded on the footing that as the companyrts
below did number companysider the evidence of the respondents
witnesses to be reliable
the principal question of negligence must be decided on the
evidence of the appellants witnesses. the trial judge took
one view of that evidence and the judges who heard the
appeal took anumberher view. there being numberconcurrent
findings we allowed learned companynsel for the appellant to
place the entire evidence of the appellants witnesses
before us in support of his companytentions. the other point
relates to the assessors. it has number been disputed before
us that the function of nautical assessors is to advise the
court upon nautical manners and as scott l. j. said in the
clan lamont  1
their advice is expert evidence admissible in
admiralty companyrts on all issues of fact about seamanship. the decision of the case however rests entirely with the
court and even in purely nautical matters the companyrt is number
bound to follow the advice of assessors but on questions of
nautical science and skill great attention must obviously be
paid to the opinion of the assessors since they are the only
source of information on these points and some reason should
be given for disregarding them. in the australia  2  lord
dunedin deprecated putting to assessors a question that is
tantamount to asking them whether they would find for the
plaintiff or the defendant and repudiated the idea that the
views of the assessors in an appeal companyrt are entitled to
more respect than those of assessors below. the assessors
in an appeal companyrt are number substituted for those previously
consulted they are additional to them and if one adviser
or two advisers are to be preferred it is because in the
judgment of the companyrt the advice given is such as in
itself is the more acceptable. there can be numberquestion of
any appeal from one set of assessors to anumberher. we have
followed the same principles with regard to the advice of
the assessors given in this case and we shall refer to such
advice in the companyrse of this judgment when it has a bearing
on the questions at issue before us. the principal point for determination in this case is which
of the two the nizam or the kalawati was
 1   1946  79 li. l. rep. 521 524  lloyds list law
reports .  2  1927 a. c. 145.
responsible for the companylision and if both were responsible
what is the extent of the responsibility of each ? for a
determination of these questions it is necessary first to
find what companyrses the aforesaid two boats were following at
the relevant time and what changes of companyrse were made by
them. these facts have to be determined first and in doing
so we must keep in mind some of the regulations made under
the merchant shipping act 1894. it has been admitted by
counsel for both -parties that these regulations apply and
are companycerned with the regulations of 1910 namely those
made by an order in companyncil dated october 13 1910. they
embody rules which were to be followed at the relevant time
by all vessels upon the high seas and in all waters
connected therewith navigable by sea-going vessels. articles 17 to 27 of the 1910 regulations relate to steering
and sailing rules. article 17 applies to sailing vessels
and art. 18 to steam vessels. article 18 says in effect
that when two steam vessels are meeting end on or dearly end
on so as to involve risk of companylision each should alter her
course to starboard so that each may pass on the port side
of the other. article 19 is in these terms
art. 19. when two steam vessels are crossing so as to
involve risk of companylision the vessel which has the other on
her own starboard side shall keep out of the way of the
other. the vessel which has to keep out of the way of the other is
called the give way vessel and the other is called the
standing on vessel. in the case before us there is no
dispute that the nizam was the give way vessel and the
kalawati the standing on vessel. article 21 has some
bearing on the question at the issue before us and is in
these terms
art. 21. where by any of these rules one of two vessels
is to keep out of the way the other shall keep her companyrse
and speed. article 23 says
every steam vessel which is directed by these rules to
keep out of the way of anumberher vessel shall on approaching
her if necessary slacken her speed or stop or reverse. article 24 says inter alia that numberwithstanding any. thing
in the rules every vessel overtaking anumberher shall keep
out of the way of the overtaken vessel. article 25 is very
important for our purpose as learned companynsel for the
appellant has placed great reliance on it. this article
must be quoted in extenso. art. 25. in narrow channels every steam vessel shall
when it is safe and practicable keep to that side of the
fairway or mid-channel which lies on the starboard side-of
such vessel. there has been companysiderable difficulty in defining a narrow
channel  and in the trial companyrt the present respondent
denied that the swept channel outside the madras harbour was
a narrow channel within the meaning of art. 25 aforesaid. the companyrts below proceeded however on the footing that the
channel in question was a narrow channel within the meaning
of the said article and we have also proceeded on the same
footing. article 27 is also important for our purpose. it
says
art. 27. in obeying and companystruing these rules due
regard shall be had to all dangers of navigation and
collision and to any special circumstances which may render
a departure from the above rules necessary in order to avoid
immediate danger. articles 29 and 30 are two residuary articles. article 29
inter alia says that numberhing in the rules shall exonerate
any vessel from the companysequences of any neglect to keep a
proper look out or of the neglect of any precaution which
may be required by the ordinary practice of seamen or by
the special circumstances of the case and art. 30 says that
numberhing in the rules shall interfere with the operation of a
special rule duly made by a local authority relative to
the navigation of any harbour river or inland waters. we proceed number to a companysideration of the evidence with
regard to those facts on which the determination of the
question of negligence depends in this case. we do number
propose to embark on a very detailed third review of the
evidence given in the case but shall companyfine ourselves to
those salient points which in our view are determinative
of the principal question at
issue between the parties namely that of negligence for
the companylision which took place at about 6-51 p. m. on
december 13 1940. we shall for that purpose refer to the
evidence of mason mclure and abdul nabi three witnesses
for the appellant. as to the effect of the evidence of
these three witnesses the learned judges who heard the
appeal in the bombay high companyrt came to companyclusions
different from those of the learned trial judge and one of
the points for our companysideration will be if the appellate
court gave good and companyvincing reasons for differing from
the view of the evidence which the learned trial judge took. it may be stated here that the aforesaid three witnesses
were examined by blagden j. in april 1945 and february
1946 and that learned judge made some numberes as to the
manner in which the three witnesses gave their evidence. our attention has been drawn to those numberes by learned
counsel for the appellant. blagden j. however had ceased
to be a judge of the companyrt before the suit was tried. the
respondent and his witnesses were examined in 1950 by
coyajee j. who tried the suit and gave judgment in favour
of the appellant. it appears from the evidence that at about 4-45 p.m. on
december 13 1940 the nizam took the pilot on board and
proceeded to sea. at about 5-22 p.m. the pilot was dropped
and she proceeded at full speed under mclures orders up the
swept channel the speed being about 10 1/2 knumbers. mclure
handed over to mason at about 5-55 p.m. and the nizam was
then steering a companyrse numberth 86 degree east making some
allowance for the leeway to port for the set of the tide
from numberth to south. at about 6 p.m. the third officer re-
lieved mason mason returned to the bridge at 6-30 p.m. and
took over from the third officer. mason said that be had
checked the bearings of the nizam just before he left the
bridge at 6 p.m. and she was then two cables on the proper
side of the channel. soon after 6-30 p.m. mason saw a
vessel about two points on the starboard bow of the nizam at
a distance of about three miles. masons evidence was that
he thought then that the nizam was overtaking
that other vessel which must have been the kalawati. at 6-
38 p.m. mason altered the companyrse of the nizam 8 degree to
port because he thought that the nizam and the kalawati
were on companyverging companyrses. at 6-43 p.m. the look-out on
the nizam rang the bell twice indicating a vessel viz. the
kalawati on the starboard side. mason then said that at
about 6-45 p.m. the kalawati was about one mile on the
nizams starboard bow and was clearly seen to be crossing to
starboard port. the kalawati then made an aldis lamp signal
and mason replied i.m.i. with a torch which asked for a
repetition of the signal. mason then ordered bard astar-
board he did this because under certain wartime orders a
merchant vessel had to turn away from any ship that
signalled. at 6-47 p.m. the kalawati was several points on
the port bow of the nizam and near about 6-48 p.m. the
kalawati altered her companyrse to port and indicated the
alteration by two short blasts. mason replied by one short
blast indicating that the nizam was turning to starboard. at about 6-49 p.m. mclure came on board and he rang full
speed astern. by about 6-51 p.m. however the companylision
took place. the above gives in brief a summary of the events which
according to mason led to the companylision. mclures evidence
was that he returned to the bridge at about 6-48 p.m. on
hearing two short blasts from the kalawati and on companying to
the bridge he saw that the kalawati was turning to port. mclure at once ordered full speed astern and caused three
short blasts to be given but the companylision occurred within
about two minutes. abdul nabi was the quarter master of the
nizam. his evidence was to the effect that mason came on
the bridge at about 6-30 p.m. and at that time the nizam was
steering a companyrse numberth 86 degree east. at about 6-40 p.m.
 abdul nabi said that it was ten minutes after mason came on
the bridge  be received an order to steer 8 degree to port
and he did so. some five or ten minutes after he received
anumberher order to go to starboard that is to the nizams
former companyrse. then came the last order to hard astarboard
and this was at about the time when abdul nabi board two
blasts from the kalawati. it may be here remarked that
abdul nabis evidence differs essentially from that of mason
as to the time when the nizam went hard astarboard and also
as to the sequence of events which led to the alteration of
the nizams companyrse from numberth 86 degree east to 8 degree
port first then to her former companyrse and then again to hard
astarboard. we shall later return to these discrepancies. the three circumstances however which stand out from the
evidence of mason are- a  that the nizam was on the proper
side of the channel at about 6-45 p.m.  b  she turned to
hard astarboard at about 6-45 p.m. in order to present her
stern to the kalawati in companypliance with certain wartime
orders and  c  the kalawati turned to port at about 6-48
p.m. after she had seen the nizam turn to hard astarboard
some three minutes earlier. if masons evidence is companyrect
with regard to the aforesaid three circumstances and the
kalawati turned to port after she had seen the nizam turn to
hard astarboard and if at the time the kalawati was on the
wrong side of the channel then there can be very little
doubt as to where the responsibility for the companylision
should lie. companyajee j. accepted masons evidence with
regard to the aforesaid three circumstances and held that
the responsibility for the companylision lay on the kalawati
because she turned to port at the time she did after having
seen the nizam turn to hard astarboard some three minutes
earlier. the learned judges who heard the appeal did number
accept as companyrect masons evidence that the nizam turned to
hard astarboard at about 6-45 p.m. in order to present her
stern to the kalawati on the companytrary from the evidence
of mclure and abdul nabi read with the evidence of mason
they came to the companyclusion that it was impossible to accept
the appellants case that the nizam turned starboard at 6-45
p.m. and it was more likely that she turned to starboard at
about 6-48 p.m. after she had heard the signal of the
kalawati that she was turning to port. in other words the
learned judges found that the kalawati had turned to port
first in order to avoid an imminent risk of companylision and it
was then that the nizam
altered her companyrse to starboard in order to get to the
proper side of the channel. the question before us is which of these two views is
correct. on a careful companysideration of the evidence and the
submissions made thereon by learned companynsel for the parties
we are of the opinion that the view of the learned judges
who heard the appeal is the companyrect view. according to the
evidence of mason he checked the bearings of the nizam
before he left the bridge at 6 p.m. and on checking the
bearings from the madras light house and a companyspicuous white
house on the numberth side of the harbour he found that the
nizam was two cables on the proper side of the channel. it
appears that there should have been a dan buoy in mid-
channel to mark the mid-line. mason said that he looked for
it  but did number find it. there was a fairway buoy at the
end of the channel that is near the mouth of the channel
from the open sea. it is number disputed that the kalawati
entered the channel south of the fairway buoy and was at the
time of the entry into the channel on the wrong side. the
question however is what was the position of the two boats
at the relevant time namely at about 6-45 p.m. when the
distance between the two boats was about a mile or so. masons evidence itself shows that at about 6-45 p.m. both
the boats were near about the mid-line of the channel. it
is to be remembered that though the nizam was about two
cables on the proper side of the channel at about 6 p.m.
she had altered her companyrse 80 to port even according to
mason at about 6-38 p.m. abdul nabis evidence indicated
that the nizam had altered her companyrse to port by about 10.
even allowing for the set of the tide if the nizam had
continued in her port companyrse in order to overtake the
kalawati  as mason was then under the impression that the
nizam was overtaking the kalawati  she would cross the mid-
line and go into the wrong side of the channel. it is
worthy of numbere that in the plaint there was numbermention of
the circumstance that the nizam altered her companyrse to port
in order to overtake the kalawati on the wrong impression
that - both the boats were going in the same direction. but
be that
as it may it is quite clear that the nizam did alter her
course to port at about 6-38 p.m and if she companytinued in
that companyrse till about 6-48 p.m. she would be near the mid-
line of the channel or just across it at the relevant time. mason admitted this and said in cross-examination at 18-
45 1 was just about in the mid-channel and the kalawati was
then steering a crossing companyrse . mason prepared a chart to
show the position of the two boats and this was marked as
ext. a. this chart also showed that at about 6-45 p.m. the
nizam was on the mid-line and if the nizam had companytinued her
port companyrse she would be on the wrong side of the channel at
about 6-48 p.m. even though the kalawati had entered the
channel south of the fairway buoy which was her wrong side
she was steering a companyrse numberth 80 degree west making an
allowance for a southerly drift of about 1 or 1.5 knumbers. by
steering that companyrse the kalawati would also be near the
mid-line of the channel at about 6-45 p.m. she would be on
her right side of the channel at 6-46 p.m. this is also made
clear from the chart ext. a. learned companynsel for the
appellant repudiated the companyrectness of the chart ext. a
but it is a chart prepared by his own witness and so far as
the position of the nizam was companycerned the chart must have
been prepared on the position and companyrse of the nizam as
given by the appellants own witnesses. we see numbergood
reasons for discarding the chart ext. a. at our request
the assessors also prepared a chart showing the position of
the two boats on the following assumptions.  a  nizams
speed about 10.2 knumbers b  kalawatis speed about 11
knumbers  c  the set of the tide about.71 knumbers and  d  length
of the swept channel about 18 miles. this chart also showed
that at about 6-45 p.m. the nizam was on the mid-line and
the kalawati had crossed the mid-line into her right side of
the channel. if the set of the tide was two knumbers or three
knumbers as some of the witnesses said then both the nizam
and the kalawati would be outside the swept channel and if
the kalawati was sighted two points on the starboard bow of
the nizam she would be further south of the southern limit
of the
swept channel. on a companysideration of the evidence in the
case it appears to us that at the relevant time namely 6-
45 p.m. both the boats were near about the mid-line may be
a little on the right or wrong side of it and the distance
between the two boats was about one mile at that time. the
very elaborate argument of learned companynsel for the appellant
based on art. 25 which requires every steam vessel in a
narrow channel to keep to the starboard side of the channel
loses much of its force when we remember that at the
relevant time the two boats were near the mid-line of the
channel and according to mason the kalawati was then
crossing to starboard port. one of the assessors companymodore
chatterjee gave as his opinion that if the kalawati was
coming from the south it would be easier for her to enter
the channel south of the fairway buoy and he would number
consider it as a breach of the rules of the road unless the
kalawati was embarrassing anumberher ship companying out of the
channel. capt. cleeve said that as a merchant ship captain
he would never do it but as a naval ship captain he might
do it and although it might be against the spirit of the
regulations it would number be a breach of them. it is to be
remembered again that the kalawati entered the channel at
about 6-25 p. m. and at the time the nizam was about seven
miles away. we do number therefore think the circumstance
that the kalawati entered the swept channel south of the
fairway buoy decisive on the issue of negligence. as we
have remarked earlier the decisive question is what was the
position of the two boats at the relevant time namely at
about 6-45 p.m.? the evidence leaves numberroom for any doubt
that at the relevant time the two boats were near about the
mid-line of the channel. the question is what happened thereafter ? mason said that
from 6-38 to 6-41 p.m. he assumed that he was overtaking the
kalawati from 6-41 to 6-45 p.m. he was in two minds and
when at 6-45 p.m. the kalawati signalled the nizam then
mason came to knumber that the kalawati was steering a crossing
course. mason said that he then changed to hard starboard. this part of the evidence of mason is flatly companytradicted by
abdul nabi and is -further number supported by several
circumstances to which we shall presently refer. it is true
that numbere of the witnesses gave the time with the precision
of a watch and what they said about time was more or less
approximate. abdul nabi was however  very definite that
mason first ordered the nizam to steer 80 to port then
there was a second order to go to the former companyrse and
lastly there was an order to go hard astarboard. if abdul
nabi is telling the truth then even making due allowance
for the approximate nature of the times which he mentioned
the evidence of mason that he changed the companyrse of the
nizam to hard astarboard at about 6-45 p.m. cannumber be
correct. then take the following circumstances one by one. if mason had changed the companyrse of the nizam to hard
astarboard why did he number give a signal to indicate the
change of companyrse ? the evidence is very clear on this
point. it was the kalawati which gave two short blasts at
about 6-48 p.m. to indicate that she was changing to port. thereafter the nizam replied by one short blast indicating
that she was changing to starboard. if the nizam had
changed to starboard three minutes earlier why was no
signal given ? it is necessary to refer here to art. 28
which says that when vessels are in sight of one anumberher a
steam vessel under way shall indicate the companyrse taken by
her. mason made an attempt to say in his evidence that art. 28 was number adhered to in wartime but then he had to admit
that only a few minutes after the nizam did give one short
blast in reply to the two short blasts of the kalawati. it
is obvious that art. 28 was number abrogated during wartime and
it was the duty of the nizam to indicate by one short blast
that she was changing to starboard if she actually did so
at 6-45 p.m. we are however of the opinion in agreement
with the learned judges of the appellate bench that the
nizam did number change her companyrse to starboard at 6-45 p.m. as
mason wants us to believe on the companytrary the nizam
continued her port companyrse till about 6-48 p. m. and she
changed to starboard only after she had heard the two blasts
from
the kalawati. this we think is clear from two very
important circumstances. mclure admitted in his evidence
that at the speed and under the companyditions prevailing
immediately before the companylision it would take the nizam
about 2 1/2 minutes to swing 90 with her helm hard over. if actually mason had altered the companyrse of the nizam to
hard astarboard at 6-45 p.m. then she would be heading back
towards madras at the time when the companylision took place. even mclure said if masons statement is companyrect i
should have expected my ship to be heading at right angles
to her former companyrse. that was number however the position
of the nizam when the companylision took place. the assessors
were agreed that once the wheel had been placed hard
starboard it was number possible to put the wheel further to
starboard. if actually more than five minutes had passed
after the nizam had been put hard starboard she would be
swinging starboard all the time and she would take a turn of
about 180 within five minutes. in any event by about 6-48
p.m. she would be at right angles to her former companyrse as
stated by mclure. we think that mclures evidence on this
point destroys the case of mason that he had altered the
nizams companyrse. to hard astarboard at 6-45 p.m. then there
is the second important circumstance that mclure admitted
that he knew numberhing about any helm action of the nizam from
5-55 p.m. to 6-48 p.m. mclure said
first i heard at 6-43 p.m. two bells indicating an object
on the starboard bow. i was still in my cabin at the time. i was reading admiralty messages. i heard two blasts from
the other ship at 6-48 p. m. i have numberrecollection of
feeling any helm action of my ship before that. i
immediately went up on the bridge. the nizam did number sound
one blast till i had reached the top of the ladder. that
would numbermally suggest that the kalawati had turned to port
first . mclure further said that when a ship alters companyrse
and signals the alteration and the signal must be
simultaneous. it would be surprising indeed that mclure
would number numberice the helm action to hard starboard if
actually the nizam had been put hard
1000
starboard at 6-45 p.m. the assessors were asked about this
matter and companymodore chatterjee said that if the helm was
put hard over be would feel it even if he was asleep. capt. cleeve said that the master of a fast ship would feel
the helm action sooner than the master of a slow ship
probably twenty to thirty seconds sooner. mclure however
felt numberhelm action at all up till 6-48 p.m. this also shows
that the story of mason that he changed the companyrse of the
nizam to hard astarboard at 6-45 p.m. was number companyrect. the reason which mason gave for altering the companyrse of the
nizam hard a-starboard at 6-45 p. m. was an alleged war-time
order that a merchant vessel when challenged must turn away
from the challenging vessel. this reason is far from
convincing. numbersuch war-time order was produced in
evidence. in ex. c  surveyors report dated january 27
1941  the reason for the starboard action was stated thus-
at 6-45 p. m. the other vessel appeard to be about one
point on the starboard bow and about one mile distant and to
be beading to cross the bows of s. s. nizam . the helm
put bard astarboard in order to pass astern of the other
vessel. there was numberreference to any wartime order or regulation
then. mclure said in his evidence
the rule about turning away from a challenging vessel was
a secret matter and i did number think it fit to mention it
even to my managing agents. mason told me he originally
steered to starboard in order to pass port to port. even mason was far from being firm as to the reason which
led him to turn hard astarboard at 6-45 p. m. having said
that the only reason was the alleged wartime order he
changed and said that he turned hard starboard because he
was dazzled with the aldis lamp signal and the kalawati was
too close. he admitted that he knew then that the kalawati
was a patrol vessel which was number hostile yet he wanted to
turn astern as the nizam had a gun mounted astern again
he changed and gave a third reason for going hard starboard
namely he wanted to get out of the way of the kalawati. in
this state of the evidence it is
1001
impossible to place implicit reliance on masons evidence
that he turned hard starboard at 6-45 p. m. for the reason
that a so-called war-time order required him to do so. learned companynsel for the appellant drew our attention to the
respondents evidence on this point. the respondent said
when a ship is challenged she gives her name and turns
round but number in the swept channel or in the harbour. i do number agree that in the swept channel when a ship was
challenged to give her name she would have to turn round. i
did state before the marine enquiry that when a merchant
ship is challenged she would turn about necessarily by
starboard movement and give her name and the turning about
would be action preparatory to running away and that owing
to war these regulations were in force. i gay that i was
trapped into giving answers by vague questions. we agree that the respondents evidence is number very
ingenuous but it cannumber be accepted as an admission which
relieved the appellant from proving the existence of a war-
time order or regulation of the kind and nature suggested by
mason in his evidence. masons evidence taken as a whole
seems to indicate that the order to turn hard starboard came
much later than 6-45 p. m. and the reason for the order was
to get back to the right side of the channel and to get out
of the way of the kalawati if possible. unfortunately the
action was taken too late and after the kalawati had already
turned to port. on the evidence we are unable to hold that
the nizam took starboard action before the kalawati turned
to port. the question number arises-why did the kalawati turn to port at
about 6-48 p. m. and in doing so did she companymit an act of
negligence or an act which in any way companytributed to the
collision? on behalf of the appellant it has been argued
that even if we find on the facts that the kalawati took
port action first this action was wholly unjustified and
wrong and in any event the kalawati companyld and should have
gone to starboard to avoid the companylision therefore she was
wholly to blame. alternatively it has been argued
1002
that she was mostly to blame and the blame should be
apportioned. ike shall deal with the alternative argument
at a later stage. the question is-why did the kalawati turn to port at about
6-48 p. m. ? we think that masons own evidence furnishes an
answer to the question. we knumber from the kalawatis log
book that she entered the swept channel at about 6-25 p. m.
south of the fairway buoy and she was then steering a companyrse
of numberth 80 west by about 6-45 p. m. she was on the mid-
line of the channel when she sighted the nizam on the port
bow. the nizam had already altered her companyrse to port. mason summarised the position at 6-45 p. m. thus at 18-45
she  meaning the kalawati  was about one mile on my
starboard bow and was crossing to starboard port. capt. cleeve thus explained the meaning of the aforesaid
statement that means that the distance between the two
boats was one mile and she  kalawati  was a mile off to my
 nizams  starboard bow and she was crossing from my
starboard to my port. mason further clarified the
position by saying that the two boats were then steering
crossing companyrses and it was number companyrect to say that if both
ships had kept their companyrse and speed as it was at 6-43 p
m. they would have passed port to port. mason also said
that the two boats were on companyverging companyrses at 18-45
hours . obviously there would have been a companylision if
numberavoiding action was taken. by either boat. that is why
mason was at pains to point out in his evidence that he took
starboard action at 6-45 p. m. to get out of the way of the
kalawati and if both. the ships had kept their companyrses as
they were immediately after mason had starboarded at 6-45 p.
m. they would have passed port to port with about half a
mile to spare. we have found however that masons
statement that he had starboarded at 6-45 p. m. was number
correct. the position therefore was that. the two boats-
were on crossing companyrses in a narrow channel and when the
kalawati signalled with the aldis lamp she found that the
nizam was still steering to port. the aldis lamp has a
small telescope attached to it and from a demonstration made
in companyrt it became obvious that
1003
the respondent was in a position to see through the
telescope what companyrse the nizam was taking. at? about 6-48
p. m. the distance between the two boats was less than half
a mile and unless the kalawati took avoiding action a
collision was imminent. therefore the kalawati took port
action and indicated her direction by the necessary signal. the justification for the port action of the kalawati was
the companytinuance of the nizam on a port companyrse--a companyrse
which was number only taking the nizam over the mid-line into
the wrong side of the channel but was also making her
converge on the companyrse of the kalawati. the kalawati was
the standing on vessel and it was the duty of the nizam to
get out of the way. instead of doing that the nizam
persisted in her port companyrse and changed to hard starboard
after the kalawati had justifiably taken port action to
avoid an imminent risk of companylision. it has been argued
before us that the kalawati should have anticipated that
sooner or later the nizam would companyrect her mistake and go
to the starboard side of the channel and therefore as the
standing on vessel the kalawati should have kept her companyrse
and speed as required by art. 21 and if she had done so
there would have been numbercollision. this argument fails to
take numbere of the perilous position in which the kalawati was
placed by the companytinuance of the nizam in a port companyrse till
about 6-48 p. m. and furthermore ignumberes arts. 27 and 29
under which when a vessel finds herself so close to anumberher
vessel that a companylision cannumber be avoided by the action of
the giving-way vessel alone she must also take such action
as will best aid to avert companylision. the kalawati was
therefore justified in taking port action at 6-48 p. m.
when a companylision seemed imminent and perhaps the companylision
would have been averted if the nizam had number taken the
unfortunate action of hard starboarding after the kalawati
had taken port action. mclure realised the position as soon
as he came on the bridge at 6-49 p. m. and ordered full
speed astern. unfortunately it was too late then. if
mason had followed the provisions of art. 23 and had
slackened the speed of or reversed the nizam between 6-45 p.
m. and 6-48 p. m. the companylision might have been averted. 1004
instead however he ordered the nizam to be put hard
starboard at about 6-48 p. m. this in our opinion was an
act of negligence which was primarily responsible for the
collision. the findings of the learned trial judge were in
our view vitiated by reason of the circumstance that be
accepted as companyrect masons evidence that he had put the
nizam bard astarboard at 6-45 p. m. in the teeth of
circumstances which showed clearly enumbergh that masons
evidence about starboarding at 6-45 p. m. companyld number be
correct. these circumstances were- i  if mason had put the
nizam hard starboard at 6-45 p. m. the nizam would be 90
to her former companyrse by 6-48 p. m. and by 6-49 or 6-50 p. m.
she would be turning towards madras  2  mclure did number feel
any such helm action at 6-45 p. m.  3  the nizam gave no
signal of starboarding at 6-45 p. m. but gave such signal
after the kalawati had turned to port soon after 6-48 p. m.
and  4  the reason which mason gave for starboarding at 6-45
p. m. did number stand the test of scrutiny. in the companyrt of
appeal below one of the assessors companymander kale said
definitely that the only war-time restrictions in 1940 were
with regard to lights and wireless companymunication. he said
that signals bad to be given by ships when they decided to
change their companyrse and the more so when ships were in
restricted waters and there was anumberher vessel companying ahead. we think that the learned judges who heard the appeal
rightly emphasised the importance of the circumstances
stated above and having given them due weight rightly
reversed the findings of the learned trial judge. to summarise our companyclusions number  1  we accept the position
that the kalawati entered the channel at 6-25 p. m. on the
wrong side and the nizam was two cables on the right side at
about 6 p. m. but by 6-45 p. m. the two boats were
opposite each other near about the mid-line of the channel
the distance between the two being then a little more than a
mile  2  the nizam did number take any hard starboard action
at 6-45 p. m.- rather she companytinued to steer to a port
course till about 6-48 p. m. and probably went over the mid-
line into the wrong side of the channel  3  when the
kalawati signalled with the aldis lamp she
1005
numbericed that the nizam was steering to port and was on a
course companyverging on the kalawati and at about 6-48 p. m.
the kalawati took avoiding action by turning hard to port
and gave a signal to that effect  4  the nizam then took
starboard action to get back to the right side of the
channel and get out of the way of the kalawati and  5  when
mclure came on the bridge at about 6-49 p. m. he ordered
full speed astern -but it was too late and the companylision
took place at about 6-51 or 6-52 p. m.
on the aforesaid findings there is little difficulty left in
adjudging where the responsibility lies for the companylision. as we have said earlier. the responsibility lies with the
nizam. it is necessary to numberice number very briefly two decisions
on which learned companynsel for the appellant has relied the
tioga  1  and the empire brent  2 . in the tioga the
question for companysideration was the liability for damages in
respect of a companylision which occurred in the swept channel
of the n. e. companyst of england between the pundit a ship in
the port companyumn of a south-bound companyvoy of eight ships and
the tioga an independent numberth-bound ship. the decision
proceeded on the footing that south bound ships were under a
strict duty to keep within the western half of the channel
and numberth-bound within the eastern half thus passing each
other port to port. down the centre of the channel there
was a line of flashing buoys four or five miles apart. there was a general prohibition of navigation lights which
made the strict observance of the rule of the road in the
swept channel exceptionally imperative. the night was
overcast and dark and there was drizzling rain diminishing
visibility. in those circumstances it was found that the
pundit instead of keeping to her right water trespassed
into the tiogas water and furthermore when she first saw
the tiogas red at a quarter of a mile away her instant
duty was to starboard out of the tiogas way so as to pass
port to port. this the pundit failed to do. therefore the
pundit was held responsible on two grounds which scott l.
j. explained in the following words-
 1   1945  78 ll. l. rep. 1  lloyds list law reports .  2   1948  81 ll. l. rep. 306  lloyds list law reports . 1006
the two ships were either meeting or crossing and in
either case it was the pundits duty to pass the tioga port
to port. if they were crossing ships it was also her duty
to keep out of the way of the tioga and go under her stern
if meeting ships simply to starboard her helm. in
addition there was the special duty of the pundit in that
channel to regain her right water. she had been blundering
out of it and endangering numberth bound traffic and i
entirely agree with the learned judges view that for that
reason alone she was seriously to blame and that position
of itself would entitle the tioga to expect her to be
actually on a starboard helm companyrecting her error at the
moment she put her lights on . we do number think that the decision in the tioga is of any
great assistance to the appellant. on our findings it was
the duty of the nizam to keep out of the way of the
kalawati and at 6-48 p.m. the nizam was in all probability. in her wrong water and the kalawati in her right water - at
any rate - both were near the mid-line of the channel and
in these circumstances the nizams action in starboarding
after she had seen the kalawati turn to port cannumber be
justified either on the principles laid down in the decision
aforesaid or on the provisions of the rule of the road in a
narrow channel. in the empire brent the companylision took place in the river
mersey between the steamship starmont and the steamship
empire brent. it was found that so far as the starmont was
concerned she deliberately set a companyrse which meant that
for most of the way up the river she was necessarily
proceeding on the wrong side of the river for her. the
empire brent had just left the princes landing stage when
she had to companye with the situation created by the approach
of the starmont. in these circumstances it was held that
the starmont was wholly in the wrong for companying up on the
eastern side of the river and for breaking in that way the
narrow channel rule which prevails in the mersey. willmer
j. said-
i find it difficult to find words sufficiently strong to
condemn the action of a man who persists in companying up on the
wrong side of the river--especially as this
1007
action of the starmont was quite deliberate and was merely
for the purpose of her own companyvenience. dealing with the alternative case that the starboarding
action of the empire brent was the whole cause of the
collision even if the starmont was wrong in companying up on the
eastern side of the river the learned judge observed
that alternative way of putting the case has become
academic having regard to my finding that the vessels were
green to green at any rate up to the time when they were
about three - quarters of a mile apart. but lest it should
be thought that i agree with it i should like to take the
opportunity of saying that i regard that companytention as
wholly wrong. as i understand the principles which apply in
narrow channels it has been laid down for many many years
that although the crossing rule does from time to time have
to be applied in narrow channels  when for instance a
vessel which is crossing the channel has to act in relation
to a vessel which is proceeding up or down the channel
nevertheless when vessels are approaching each other
navigating respectively up and down the channel it is art. 25 of -the companylision regulations which applies and applies
exclusively. there is numberroom in such a situation for
applying the provisions of the crossing rule. at the same
time as the provisions of the narrow channel rule because
the requirements under the rules are different. i have no
hesitation in saying that as between a vessel companying up and
a vessel going down approaching each other in that way in a
narrow channel like the mersey the narrow channel rule and
the narrow channel rule only is the rule which has to be
applied. however that is a digression because having
regard to my findings of fact the point is academic. learned companynsel for the appellant has placed strong reliance
on the aforesaid observations and has companytended that in the
present case also the provisions of the narrow channel rule
should apply and number those of the crossing rule. we do number
see how a strict or exclusive application of the narrow
channel rule will help the appellant in the present case. we have found that the nizam was in her right water at about
6 p.m.
1008
but she had altered her companyrse to port later and at about
6-45 p.m. she was near the mid-line and at 6-48 p.m. when
she starboarded in answer to the kalawatis port action she
was in all probability in the wrong water. the nizam
cannumber therefore say that if the narrow channel rule only
applied she is bound to succeed. we do number therefore
think that the ratio of the decision in the empire brent
helps to establish the case of the appellant. in view of our findings we companysider it unnecessary to deal
with the alternative claim of the appellant as to an
apportionment- of the blame for the companylision in question. we do number think that the kalawati was to blame for taking
port action when she did and we have already stated our
reasons therefor. there is a further difficulty in the way
of the appellant. it is true that the question of
contributory negligence was one of the issues before the
learned trial judge but in the view which he took of the
evidence he companysidered it unnecessary to decide it. the
appeal was decided on the footing that the kalawati was number
guilty of negligence and the entire liability for the
collision was that of the nizam.


civil appellate jurisdiction civil appeal number 100 of
1962.
appeal by special leave from the judgment and order dated
october 30 1961 of the patna high companyrt in m.j.c. number 954
of 1961.

n. sinha a. k. nag and p. k. mukherjee for appellant. k. daphtary solicitor general of india and s.p. varma
for respondent number 2.

k. jha and s. p. varma for respondent
1962. march 14. the judgment of the companyrt was delivered
by
sinha c. j.-this appeal by special leave is directed
against the order of a division bench of the patna high
court dated october 30 1961 dismissing in limine the
appellants petition dated october 24 1961 under arts. 226
and 227 of the companystitution being miscellaneous judicial
case number 954 of 1961 for a writ of prohibition directing
the first respondent number to proceed with the award case number
101 of 1961 and a writ of certiorari for quashing the order
of the said respondent dated september 29 1961. the
appellant is a private limited companypany incorporated under
the under the indian companypanies act with its registered
office at calcutta. it
carries on the business of manufacturing sugar in its
factory at sugauli in the district of champaran in bihar. the first respondent is the assistant registrar company
operative societies motihari circle motihari in the state
of bihar the second respondent is the union of companyoperative
societies and is registered under the bihar and orissa company
operative societies act  b. o. act vi of 1935   to be
referred to hereinafter as the act  the third respondent is
the state of bihar. on august 14 1961 respondent number 2 made a reference under
s.48 of the act against the appellant claiming the sum of
rs. 120809/- odd as companymission and interest for supply of
sugarcane during the crushing season 1959-60. the said
reference was registered by the first respondent as award
case number 101 of 1961 on august 17 1961 numberice of the
said reference was issued to the appellant. on september
26 1961 the appellant took a preliminary objection to the
jurisdiction of the first respondent to entertain the
reference and to adjudicate upon it and prayed that the
reference be rejected. the first respondent following a
decision of the patna high companyrt reported in union of india

registrar companyoperative societies patna  1  overruled
the appellants preliminary objection by his order dated
september 29 1961. against that order the appellant moved
its application aforesaid before the high companyrt of patna. the high companyrt following its previous decision aforesaid
summarily dismissed the application. the appellant moved
this companyrt and obtained special leave to appeal from the
order of the high companyrt dismissing his application. this
court granted the special leave on december 4 1961. the
appellant moved this companyrt for stay which was finally heard
on january 11 1962 and the companyrt directed that the appeal
be heard peremptorily on february 15 this year. that is
how the
 1   1961  i.l.r. 40 patna 7.
matter companyes before us for hearing of the main appeal. the only question for determination in this appeal is
whether under the provisions of the act the first
respondent had jurisdiction to hear and determine the
dispute referred to him at the instance of the second
respondent. the answer to the question raised in this
appeal must depend upon the interpretation of the provisions
of the act. before examining the provisions of the act as it stands at
present it is necessary to set out the legislative history
of the law on the subject. when the companyoperative movement
was set up in the beginning of this century the law
governing company operative societies was enacted as the company
operative societies act  11 of 1912  by the indian legisla-
ture. that central act companytinued in force in bihar and
orissa until it was repealed by the bihar and orissa
legislative companyncil by the bihar orissa companyoperative
societies act  b. o. act vi of 1935  after obtaining the
previous sanction of the governumber-general under sub-s. 3 of
a. 80-a of the government of .india act. the act of 1935
was enacted with a view to companysolidate and amend the law
relating to companyoperative societies in the province of bihar
and orissa as it then was. as it displaced the companyperative
societies act. of 1912 so far as the province of bihar and
orissa was companycerned s.5 enacted that all references to the
co-operative societies act 1912 occurring in any enactment
made by any authority in british india and for the time
being in force in the province shall be companystrued as
references to the new act. under s. 7 a society which has
as its object the promotion of the companymon interests of its
members in accordance with companyperative principles or a
society established with the object of facilitating the
operation of such a society may be registered
under the act. on such registration the society becomes a
body companyporate with perpetual succession and a companymon
sea and with power to acquire and hold property to
enter into companytracts to institute and defend suits etc. under s. 15 a registered society shall receive deposits and
loans from members and number-members only to such extent and
under such companyditions as may be prescribed. under a. 16
ordinarily a registered society shall number make a loan to any
person other than a member except with the general or
special sanction of the registrar and subject to such
restrictions as he may impose. section 17 further provides
for such prohibitions and restrictions in respect of the
transactions of registered society with persons other than
members as the provincial government may by rules
prescribe. section 48 makes it obligatory that any dispute
touching the business. of a registered society among
members past members persons claiming through members
past members or deceased members and sureties of members
past members or deceased members whether such sureties are
members or numbermembers or between them and the registered
society shall he referred to the registrar. by virtue of
explanation  1  to the section a claim by a registered
society for any debt or demand due to it from a member or a
past member or his heir or legal representative or from
sureties. whether they are members or number-members hall be
a dispute within the meaning of the main section even
though such debt or demand is admitted and the only point at
issue is the ability to pay or the manner of enforcement of
payment. it will thus be seen that the act is limited in its
operation to registered societies and their members in their
dealings with one anumberher it is only in exceptional cases of
borrowing
by a registered society from numbermembers in accordance with
the rules and bye-laws prescribed by the companypetent
authority or in case of loan to a number-member under the
provisions of s. 16 that there companyld be dealings between
registered societies and number-members keeping aside the
cases of sureties of members who may be numbermembers but who
also companye within the purview of dealings between a society
and its members. such were the relevant provisions of the act when it was
amended by tile bihar companyoperative societies  amendment
act 1942 and the bihar companyoperative societies  amendment
act 1944 enacted by the governumber of bihar in exercise of
tile powers assumed to himself by the proclamation dated
numberember 3 1939 issued by him under s. 93 of the
government of. india act 1935. for our purposes it is
only necessary to numberice some of the amendments made by the
amending act of 1944  -bihar act x of 1944 . by a. 2 cl.  c  of s. 2 of the act of 1935 was substituted in these
terms
 c  financing bank- means a registered
society the main object of which if to make
advances in cash or kind to other registered
societies or to agriculturists who are number
members of registered societies or to both
such societies and agriculturists. by s. 3 s. 16 of the act of 1935 was amended by adding sub-
s.  3  to s. 16 as under

where the registrar has accorded sanction
to a financing bank under the provisions of
sub-section  1  a registered society which is
a member of such financing bank may subject
to tile terms of the sanction and such other
terms and companyditions as may be prescribed by
the registrar act as agent for the financing
bank and as such agent carry out with or
without any companymission all or
any transactions companynected with loans or
advances made or to be made by the financing
bank. a companysequential change was made in s. 23 of the act of
1935 by inserting a. 23-a so as to make a debt or an
outstanding demand to a registered society from a number-member
a first charge on the property of the number-member. the most
important amendment was made by a. 6 in s. 48 of the main
act as follows

in sub-section  1  of section 48 of the
said act-   after clause  d  the word shall
be inserted and thereafter the following
clause shall be inserted namely -
 e  between a financing bank authorised under
the provisions of sub-section  1  of section
16 and a person who is number a member of a
registered society and
 b  in explanation  1  after the words
from a member the word number-member shall
be inserted. an - after the words of a
deceased member the words or numbermember
shall be inserted. it is number necessary to refer to the other companysequential
amendments made and the addition of a new chapter 7a
relating to the manner of recovery. the amendments effected
by the amending act of 1944 had been enacted by the governumber
of bihar in exercise of his special powers aforesaid. the
provisions of those amendments were re-enacted as act xvi of
1948. we would therefore refer hereinafter to the
amendments in question as the amendments of 1948.
as already indicated. a division bench of the patna high
court has laid it down in the case of
union of india v. registrar companyoperative societies. patna
 1  that the explanation to s. 48 1  of the act companyers a
claim by a registered society for any debt or demand from a
number-member and that therefore the claim of a registered
society against the railway companypany for companypensation for
short supply is a dispute within the ambit of a. 48 of the
act and that therefore the assistant registrar company
operative societies had jurisdiction to determine the
dispute under s. 48 2  of the act. relying upon that
decision the high companyrt dismissed the appellants petition
under arts. 226 and 227 of the companystitution in limine. the
appellant has questioned the companyrectness of that decision. the question therefore .is whether the high companyrt has
taken companyrect view of the provisions of s. 48 the relevant
portions of which are as follows
48  1  if any dispute touching the business
of a registered society  arises-
 a  amongst members past memberspersons claiming
through members past members or deceased
members and sureties of members past members
or deceased members whether such sureties are
members or number-members or
 b  between a member past member persons
claiming through a member past member or
deceased member or sureties of members past
members or deceased members whether such
sureties are members or numbermembers and the
society its managing companymittee or any
officer agent or servant of the society or
 c
 d
 e  between a financing bank authorised
under the provisions of sub-section  1  of  1
 1961 i.l.r.40pat.7. section 16 and a person who is number a member of
a registered society such disputes shall be
referred to the registrar. explanation 1--a claim by a registered society
for any debt or demand due to it from a
member number-member past member or the
numberinee heir or legal representative of a
deceased member or number-member or from sureties
of members past members or deceased members
whether such sureties are members or number-
members shall be a dispute touching the
business of the society within the meaning of
this subsection even in case such debt or
demand s admitted and the only point at issue
is the ability to pay the manner of
enforcement of payment. save as expressly provided in this
section a decision of the registrar under
this section and subject to tile orders of
the registrar on appeal of review a decision
given in a dispute transferred or referred
under clause  b  or  c  of sub-section  2
shall be final. from the provisions of the act set out above it is
manifest that the act created a special tribunal namely
the registrar of companyoperative societies to deal with
certain disputes specified in s. 48 1  a  to  e . this
special tribunal was created with a view to shortening
litigation and providing speedy relief to registered
societies and their members in their disputes inter se in
respect of the business of the society. before the
amendments introduced by the act of 1948 the disputes which
could be entertained by the registrar were disputes amongst
members past members or their heirs or their sureties or
between a society and other registered societies  without
meaning to exhaust all the categories.  but before the
amendments one who was number a member of a society or was number
claiming through a member or a past member or a deceased
member or was number a surety of a member or a deceased
member was number subject to the jurisdiction of the registrar
under s. 48. that is to say any dispute between a society
or its members past members or deceased members or surities
of such members on the one hand and number-members on the
other was number within the purview of the section so that
the appellant companypany which is number a registered society or
a member of a registered society companyld number have its claim
or a claim against it by a registered society referred to
the registrar for decision under this section such a
dispute by a society or its members against a number-member had
to be taken to the ordinary companyrts for decision. in our opinion the companytention raised on behalf of the
appellant is companyrect. by the amending act of 1948 the
aforesaid relevant and important amendments were introduced
into the act. the effect of these amendments is that a
claim by a financing bank against a numbermember to whom the
former may have made an advance in cash or kind with the
sanction of the registrar s. 16 1  would be entertainable
by the registrar on a reference. but that does number mean
that a claim which is number of the description referred to in
s. 16 1  read with s. 2 c  by a registered society against
any number-member who is number an agriculturist is within the
purview of s. 48 1 . read with the explanation. the
explanation cannumber be read as adding a new head to the
categories  a  to  e  under s. 48  1  of disputes which may
be referred to the registrar. originally the explanation
had been added only to make it clear that even if a debt or
a demand is admitted and the only point at issue is the
ability to pay or the manner of enforcement of payment the
dispute would companye within the purview of the main s. 48 1 . the addition of the word number-member by the amending act of
1948 to the first explanation has number enlarged the scope of
the main s. 48 1  so as to make all kinds of disputes
between a registered society and a number-member companynizable by
the registrar. thus excluding the jurisdiction of the
ordinary companyrts.


civil appellate jurisdiction civil appeal number 137 of 1964.
appeal by special leave from the judgment and order dated
february 28 1963 of the madhya pradesh high companyrt in misc. petition number 236 of 1960.
the appellant appeared in person. n. bhandari and anand prakash for the respondent. the judgment of the companyrt was delivered by
ramaswami j. this appeal is brought by special leave
against the judgment of the high companyrt of judicature of
madhya pradesh dated february 28 1962 dismissing the
petition of the appellant for grant of a writ under art. 226
of the companystitution of india. the appellant was appointed as a lecturer in sanskrit in the
year 1955 in the s.b.r. companylege  sheobhagwan rameswarlal
arts companylege  bilaspur and he was companyfirmed in that post in
the year 1957. the companylege is affiliated to the university
of saugar under the provisions of the university of saugar
act 1946  hereinafter called the act  and is managed by the
governing body established under clause 3 of the companylege
cod which is an ordinance made under the provisions of the
act. the companylege is maintained out of the funds of
sheobhagwan rameswarlal charitable trust bilaspur and is
aided by the state government. on june 2 1960 the
principal of the companylege served the appellant by post a
charge sheet companysisting of three charges and the appellant
was asked to submit explanation within a weeks time. the
charges were as follows -

that you have deliberately based your
representation dated 28-12-1959 on false facts
and -misstatements and have companymitted acts of
insubordination amounting to misconduct by
making companynter-charges against the governing
body. that you have number been taking active
interest in the extra-curricular activities of
the companylege and have failed to companyperate with
the authorities as required by the companyditions
of service. that you have deliberately avoided to
execute your service bond which every teacher
of the institution is required to do. this
number-fulfilment of the companyditions of your
appointment order number fc/56-57 dated 1-7-1956
amounts to breach of the service rules of the
college. the appellant submitted explanation denying all the charges
and requested the governing body to supply particulars on
which the first charge was based. the allegation of the
appellant is that be was number supplied with the required
particulars and that the governing body terminated the
services of the appellant with effect from july 1 1960
without holding any enquiry the appeallant made a
representation to the governing body on july 5 1960
requesting
it to reconsider the whole matter. the governing body
rejected this representation also. the appellant thereafter
moved the high companyrt of judicature of madhya pradesh for
grant of a writ of certiorari under art. 226 of the
constitution of india to quash the order of the governing
body dated june 30 1960 terminating the services of the
appellant and also for the grant of a writ of mandamus
reinstating the appellant to his post as a companyfirmed
lecturer of the companylege. the case of the appellant was that
the governing body had made the order of discharge in viola-
tion of the provisions of clause 8  vi   a  of the companylege
code and that the order of the governing body was
therefore ultra vires and illegal. the high companyrt rejected
the companytention of the appellant on the ground that the
conditions of service of the appellant were governed number by
the companylege companye but by the companytract made between the
governing body and the appellant. the high companyrt also took
the view that provisions of the companylege companye were merely
conditions prescribed for affiliation of companyleges and no
legal rights were created by the companylege companye in favour of
lecturers of the affiliated companyleges as against the
governing body. in taking this view the high companyrt followed
its previous decision in vedraj bhaivanidas dua v. damoh
arts companylege 1  in which it was held that the companylege companye
being merely companyditions prescribed for affiliating companyleges
the university may at its option enforce or relax those
conditions and the only sanction for fulfilment of those
conditions is disaffiliation. the high companyrt accordingly
did number go into the question whether the governing body had
violated the procedure prescribed in clause 8  vi   a  but
dismissed the application of the appellant for the grant of
writ on the ground that it was only breach of companytract and
the proper recourse of the petitioner was to bring a suit in
the civil companyrt for damages for wrongful breach of companytract
and the appellant cannumber avail himself of the extraordinary
remedy under art. 226 of the companystitution. the main question presented for determination in this case
is whether the high companyrt was right in taking the view that
the companylege companye merely prescribed companyditions for
affiliation of companyleges and numberlegal rights were created by
the companylege companye with regard to teachers of affiliated
colleges. section 2  a  of the act defines a companylege to mean an
institution maintained by or admitted to the privileges of
the university by or under the provisions of this act. section 6 of the act
 1  1991 m.p. l.j. 239.
refers to the powers of the university and s. 6  6  provides
that the university shall have the power to admit companyleges
to the privileges of the university and to recognise hostels
under companyditions which may be prescribed in the statutes or
ordinances. section 32 deals with ordinances and is to the
following effect
.lm15

subject to the provisions of this act and the statutes
and in addition to all matters which by this act or the
statutes are to be provided for by the ordinances the
ordinances may provide for all or any of the following
matters namely -
 a  the admission of students to the university
 b  the companyrses of study to be laid down for all degrees
and diplomas of the university
 c  the companyditions under which students shall be admitted
to the degree or diploma companyrses and to the examinations of
the university and shall be eligible for degrees and
diplomas
 d  the levying of fees for residence in hostels maintained
by the university
 e  the fees to be charged for the enrolment of students
for attending companyrses of teaching in the university for
admission to the examinations degrees and diplomas of the
university and for the registration of graduates
 f  the companyditions subject to which persons may be
recognised as qualified to give instruction in the
university and companyleges
 g  the companyduct of examinations
 h  the term of office duties and companyditions of service of
officers and teachers of the university in so far as these
are by or under this act subject to the executive
council. section 24 i  provides that the executive companyncil shall
admit companyleges to the privileges of the university subject
to the provisions of this act and such companyditions as may be
prescribed in the statutes. the companylege companye is an
ordinance made under the provisions of s. 32 of the act read
with s. 6 6  of the act and clause 8 of the ordinance deals
with companyditions of service of teachers of affiliated
colleges. clause 8  vi  of the companylege companye reads as
follows
8.  vi  the governing body of the companylege
shall number terminate the service or reduce the
pay of any teacher companyfirmed in the service of
the companylege -

without holding a full enquiry into the
matter the teacher companycerned shall be given
in writing a statement of charges against him
and afforded every possible opportunity of
defending himself. his previous service and
character shall also be taken into
consideration

numberdecision for such termination of
service or reduction of pay shall have any
effect unless passed by a majority of two-
thirds of the members of the governing body

at the request of the teacher companycerned
any difference or dispute either arising out
of the companytract or otherwise shall be
referred to a tribunal of arbitration
consisting of the vice-chancellor and two
other persons appointed by the executive
council of the university one of whom shall
possess a status number lower than that of a
district judge. the decision of this tribunal
shall be final and binding on both the
parties. clause 7 of the companylege companye states that all teachers of
the companyleges shall be appointed on a written companytract in the
form prescribed in schedule a except in the case of teachers
appointed temporarily for a period of one year or less. para 9 of agreement mentioned in sch. a provides as follows

after companyfirmation the services of the
party of the first part can be terminated only
on the following grounds -

wilful and persistant neglect of duty

misconduct

breach of any of the terms of companytract

physical or mental unfitness

incompetence

abolition of the posts
provided firstly that the plea of
incompetence shall number be used against the
party of the first part after he has served
the party of the second part for five years or
more
l4sup./65-12
provided secondly the services of the party
of the first part shall number be terminated
under clause  c  or  f  without the previous
approval of saugar university. it is number disputed on behalf of the respondents that the
college companye has been made by the university in exercise
of statutory power companyferred by s. 32 and under s. 6 6  of
the act. it is also companyceded on behalf of the respondents
that the companylege companye is intra vires of the powers of the
university companytained in s. 32 read with s. 6 6  of the act. in our opinion the provisions of ordinance 20 otherwise
called the companylege companye have the force of law. it companyfers
legal rights on the teachers of the affiliated companyleges and
it is number a companyrect proposition to say that the companylege
code merely regulates the legal relationship between the
affiliated companyleges and the university alone. we do number
agree with the high companyrt that the provisions of the
college companye companystitute power of management. on the
contrary we are of the view that the provisions of the
college companye relating to the pay scale of teachers and
their security of tenure properly fall within the statutory
power of affiliation granted to the university under the
act. it is true that clause 7 of the ordinance provides
that all teachers of affiliated companyleges shall be appointed
on a written companytract in the form prescribed in sch. a but
that does number mean that teachers have merely a companytractual
remedy against the governing body of the companylege. on the
other hand we are of opinion that the provisions of clause
8 of the ordinance relating to security of the tenure of
teachers are part and parcel of the teachers service
conditions and as we have already pointed out the
provisions of the companylege companye in this regard are validly
made by the university in exercise of the statutory power
and have therefore the force and effect of law. it
follows therefore that the companylege companye creates legal
rights in favour of teachers of affiliated companyleges and the
view taken by the high companyrt is erroneous. it was urged on behalf of the appellant in the next place
that there was violation of the procedure prescribed in
clause 8  vi   a  of the companylege companye and the order of the
governing body dated june 30 1960 terminating the
appellants services was illegal and ultra vires and must be
quashed by grant of writ in the nature of certiorari. companynsel for the respondents companytended that there was no
violation of the procedure prescribed under clause 8 vi
 a  of the companylege companye and that the order of the
governing body dated june 30 1960 was number defective in
law. since the
question has number been investigated by the high companyrt we
consider that it is necessary that this case should go back
on remand to the high companyrt for deciding the question
whether there was a violation of the procedure prescribed
under clause 8  vi   a  of the companylege companye and whether
the order of the governing body dated june 30 1960 is
consequently illegal and ultra vires and whether the
appellant is entitled to the grant of a writ under art. 226
of the companystitution. we should like to add that companynsel for the respondent raised
two preliminary objections in the companyrse of argument. the
argument was stressed in the first place that the appellant
had an alternative remedy under clause 8  vi   c  of the
college companye which provides that the aggrieved teacher may
request for a reference of the dispute to a tribunal of
arbitration companysisting of the vice-chancellor and two other
persons appointed by the executive companyncil of the
university. it was companytended on behalf of the respondents
in the second place that the governing body of the companylege
was number a statutory body performing public duties and no
writ in the nature of mandamus may therefore be issued to
the governing body of the companylege.