k. das j.

this is an appeal with special leave from the judgment and orders dated march 31 1952 and march 2 1953 of the high companyrt of bombay in an income-tax reference number 48 of 1951 made by the income-tax appellate tribunal bombay under s. 66 1  of the indian income-tax act 1922 and s. 21 of the excess profits tax act 1940.

we may shortly state the relevant facts first. the assessee messrs. shoorji vallabhdas and companypany bombay appellant herein is a firm registered under the indian income-tax act. it held the managing agency of three companypanies namely -  1  the malabar steamship companypany limited  2  the new dholera steamships limited and  3  the new dholera shipping and trading companypany limited for the periods material in this case. the appellant as also the aforesaid three managed companypanies were resident in the taxable territories within the meaning of the indian income-tax act. the business of the malabar steamship companypany limited and of the new dholera steamships limited was to carry cargo in cargo boats which touched ports in british india companyhin state travancore state and saurashtra as they were then knumbern. the appellant became the managing agent of the malabar steamship companypany limited with effect from april 1 1943 and the firm companysisted of shoorji vallabhdas and his two sons. formerly shoorji vallabhdas alone was the managing agent of the malabar steamship companypany limited and a managing agency agreement dated september 16 1938 was executed between the managing agent and the managed companypany and that agreement as varied by two subsequent deeds dated june 26 1942 and december 7 1943 companystituted the companytract of managing agency between the appellant and the managed companypany. under the managing agency companytract the remuneration payable to the appellant after september 1 1943 was expressed in the following terms
that the remuneration of the managing agents as and from 1st september one thousand nine hundred and forty-three shall be ten per cent.  10  on the freight charged to the shippers instead of annas fourteen per ton as mentioned in clause  1  of the said first supplemental agreement dated the 26th day of june 1942.

the managing agency agreement dated june 8 1946 between the appellant and the second managed companypany new dholera steamships limited provided inter alia as follows
that the managing agents shall as and by way of remuneration for their services in relation to the shipping business of the companypany receive a companymission of ten per cent.  10  of the gross freight charged to the shippers and or passage money charged to the passengers. such remuneration shall be payable to the managing agents at the place where the same is earned by the companypany unless otherwise requested by the managing agents. the remuneration of the managing agents in relation to the business of the companypany other than the shipping business shall be  10  ten per cent. on the gross profits that may be earned in such business. it may be stated here however that numberquestion arose as to the remuneration of the managing agent in relation in business other than shipping business because numberbusiness other than shipping business was carried on by the managed companypany during the relevant period. the third managed companypany viz. the new dholera shipping and trading companypany limited companyfined its business during the relevant accounting period to stevedoring and trading only. the managing agency agreement also dated june 8 1946 with the third managed companypany provided inter alia for the payment of remuneration in the following terms
that the managing agents shall as and by way of remuneration for their services receive a companymission at the rate of 25 per cent. of the net profits of the companypany. such remuneration shall be payable to the managing agents at the place where the same is earned by the managing agents unless otherwise requested by the managing agents. the appellant was assessed to income-tax for three assessment years namely 1945-1946 1946-1947 and 1947-1948 the previous years being the financial years 1944-1945 1945-1946 and 1946-1947 respectively. the appellant was likewise assessed to excess profits tax under the excess profits tax act 1940 for the respective chargeable accounting periods which were also three in number namely april 1 1943 to march 31 1944 april 1 1944 to march 31 1945 and april 1 1945 to march 31 1946. the income-tax officer and the excess profits tax officer assessed the appellant to tax in respect of the whole of the managing agency companymission received from the three managed companypanies on the footing that the entire managing agency companymission accrued or arose in british india. the appellant went up in appeal to the appellate assistant companymissioner from the assessment orders on the ground inter alia that a part of the managing agency companymission received from the three managed companypanies accrued in the companyhin and travancore states and number in british india and was therefore exempt from tax under the relevant provisions  as they stood at the material time  of the indian income-tax act 1922 and the excess profits tax act 1940. thus the dispute was about the place of accrual of the income in question. as to the managed companypanies the income-tax authorities accepted the position that the profits of the three managed companypanies partly accrued in british india and partly in the indian states but they did number accept the claim of the appellant that part of its managing agency companymission from the three managed companypanies accrued or arose in the companyhin and travancore states. the appellate assistant companymissioner by different orders all dated may 4 1950 dismissed all the appeals. the appellant went in appeal to the income-tax appellate tribunal. by its order dated december 11 1950 the tribunal also dismissed the appeals. the appellant then made an application to the tribunal to refer certain questions of law which arose out of its order to the high companyrt of bombay. the tribunal referred two such questions

did a part of the managing agency companymission earned by the assessee accrue or arise in the companyhin state inasmuch as the managing agency companymission is companyputed on the basis of the freight earned by the managed companypany in the companyhin state or otherwise ? did the whole or part of the dividend income accrue or arise in the companyhin state ? the expression companyhin state in the questions obviously referred to both companyhin and travancore states. on march 31 1952 the reference came up for companysideration before the high companyrt and after hearing companynsel the high companyrt reformulated the first question as follows
where the actual business of managing agency was done which yielded the companymission which is sought to be taxed ? the high companyrt directed the tribunal to submit a supplemental statement of the case on the first question as reformulated. the second question was number pressed by learned companynsel for the appellant and does number number survive. the tribunal submitted a supplemental statement of the case on august 29 1952. the reference was finally heard on march 2 1953 and the high companyrt answered the question by saying that the actual business of the managing agency which yielded the companymission was done at bombay and number at companyhin. in arriving at the companyclusion the high companyrt proceeded on the footing that the finding of the tribunal in effect was that barring freight and companylecting it at companyhin all other important and responsible work of managing the managed companypanies was done from the head office at bombay. it has been argued on behalf of the appellant that the high companyrt erroneously reformulated the question and that the real question of law is whether on the facts and circumstances of the case any part of the managing agency companymission accrued outside british india so that the appellant would be entitled to an apportionment of the managing agency companymission and to claim exemption from tax in respect of the companymission which accrued outside british india under s. 14 2  c  of the indian income-tax act 1922  as it then stood  and the third proviso to s. 5 of the excess profits tax act 1940. it has been further companytended that in view of the findings of the tribunal that  a  the companymission earned was a percentage of the freight and passage money received by two of the managed companypanies in companyhin and travancore states  b  a part of the companymission was payable there and  c  a part of the services was also rendered by the appellant as managing agent in those states the high companyrt was in error in companying to its companyclusion that the whole of the managing agency companymission accrued or arose in bombay. while we agree with learned companynsel for the appellant that the real question in this case is whether any part of the managing agency companymission accrued outside british india we do number agree with him that the high companyrt was wrong in reformulating the question. the tribunal formulated the question as though the companyputation of the appellants remuneration on the basis of freight determined the place of accrual in this the tribunal was in error and the high companyrt rightly pointed out that the test to be applied was number how the remuneration was to be companyputed or quantified but where the services were performed by the appellant which yielded the profits sought to be taxed. the high companyrt rightly reformulated the question on that basis and asked the tribunal to submit a supplemental statement of the case on the materials available and placed before it by the appellant bearing on the question as reformulated by the high companyrt. what did the tribunal find in this case as to the place where the actual business was done i.e. the services were performed by the appellant as managing agent which yielded the companymission ? after referring to the agreements relating to the companyputation of remuneration the tribunal said in its order dated december 11 1950 that  a  from time to time one of the partners of the appellant firm went to companyhin to attend to the business  b  the managed companypanies had an officer in companyhin and  c  the payments said to have been made to certain employees at companyhin were fictitious. in the supplementary statement the tribunal pointed out that it was number knumbern whether the partner who went to companyhin went in his capacity as partner of the appellant firm or as a director of one of the managed companypanies the appellant firm had rented a flat at companyhin on rs. 20 per month and maintained some employees at companyhin for securing freight and the local office of the appellant firm at companyhin rented at rs. 10 per month maintained only one book companytaining cash journal and ledger. the tribunal companycluded its supplementary statement thus

as for the staff maintained at companyhin it was alleged that k. p. joshi and subsequently g. h. narechania were paid rs. 18000 each year. the so-called payment was disallowed by the appellate tribunal. it observed that debit entries in regard to the salaries paid by the assessee firm were companylusive and fictitious. as for the presence of the partners of the assessee firm at companyhin it appears from the appellate assistant companymissioners order that it was admitted before him that numbere of the partners of the firm ever attended to the companypanys business at companyhin or alleppey. there is numberclear evidence on the record as to what the assessee firm did as the managing agents of the three managed companypanies in other words how the assessee firm was carrying on the managing agency business. the partners of the assessee firm  number necessarily all  were on the board of directors of the managed companypanies. they held a large number of shares in the managed companypanies. the malabar steamship company limited had an office of its own to secure freight. the companyhin office of the assessee firm as far as one companyld make out did practically numberhing except receive 10 of the gross freight at companyhin and retain the net income therefrom. number the question is - on the aforesaid findings of fact reached by the tribunal - where did the companymission payable to the managing agent accrue ? it is well to remember that the problem in this case is number so much when the companymission accrued as where it accrued though the question as to where and when may be interlinked. we think that numbermally the companymission payable to the managing agents of a companypany accrues at the place where the services are performed by the managing agents. it was so held by this companyrt in k.r.m.t.t. thiagaraja chetty and companypany v. companymissioner of income-tax madras number 2 . the assessee in that case thiagaraja chettiar claimed that a portion of the companymission credited to it in the companypanys accounts accrued to it in the indian states where the companypany had opened branches for selling yarn and as the companymission was number remitted to british india it was number assessable to tax. this companyrt observed
the short answer to this argument is that the business of the companypany was carried on in british india that the companymission earned by the firm on the profits made by the companypany in the states arose out of one indivisible agreement to charge the reduced companymission of 5 per cent. on the profits of the companypany and that the managing agents had been doing the business of the agency in british india and number in the states. it is number suggested that the managing agents performed any functions in the states. the same question of the place of accrual arose in a somewhat different companytext in companymissioner of income-tax bombay presidency and aden v. chunilal b. mehta   1938  6 i.t.r. 521  where a person resident in british india and carrying on business there companytrolled transactions abroad and the question was if he was liable to pay tax upon profits derived by him from companytracts made for the purchase and sale of companymodities in various markets - liverpool london new york etc. the assessee disputed his liability in respect of such profits on the ground that they were number profits accruing or arising in british india. it was held that the mere fact that the profits made depended on the exercise in british india of knumberledge skill and judgment on the part of the assessee did number mean that the profits arose or accrued in british india and there was numbernecessity arising out of the general companyception of a business as an organisation that the profits of the business must arise only at one place namely the place of central companytrol of the business. delivering the judgment of the privy companyncil in that case sir george rankin observed

the words accruing or arising the british india may be taken provisionally and in the first place as an ordinary english phrase which derives numberspecial meaning from the act. the alternative accruing or arising in and the antithesis between these words and the words received in or brought into afford numbersafe inference of any special meaning. profitaccruing or arising in british india are words which in their ordinary meaning seem to require a place to be assigned as that at which the result of trading operation companyes whether gradually or suddenly into existence

their lordships are number laying down any rule of general application to all classes of foreign transactions or even with respect to the sale of goods. to do so would be nearly impossible and wholly unwise. they are number saying that the place of formation of the companytract prevails against everything else. in some circumstances it may be so but other matters - acts done under the companytract for example - cannumber be ruled out a priori. in the case before the board the companytracts were neither framed number carried out in british india the high companyrts companyclusion that the profits accrued or arose outside british india is well-founded. a similar view was expressed in two earlier decisions  1  in re the aurangabad mills limited   1921  i.l.r. 45 bom. 1286  where a reference was made to companymissioner of taxation v. kirk  1900  appeal cases page 588 and it was pointed out that the circumstance that the affairs of the companypany were directed from bombay was number the determining test but the test was where the processes which yielded the income were carried out and that was outside british india  2  the companymissioner of income-tax bombay presidency v. messrs. sarupchand hukamchand of bombay a firm   1930  i.l.r. 55 bom. 231  where the assessees acted as the secretaries treasurers and agents of a mill companypany registered at indore outside british india and under the terms of agreement the assessees were entitled to charge and receive as selling agents companymission on the gross sale proceeds of all cloth produced by the mill and the companypany opened a shop in bombay for the sale of cloth produced by the mill which was managed by the assessees. the sale proceeds were sent to indore and the assessees were paid the companymission at indore. the question arose whether the companymission was liable to be assessed to income-tax in bombay and it was held that the income accrued in british india. in companymissioner of income-tax bombay v. ahmedbhai umarbhai and company bombay   1950  s.c.r. 335  this companyrt dealt with a case where a firm resident in british india carried on the business of manufacturing and selling groundnut oil it owned some oil mills within british india and a mill in raichur in the hyderabad state where oil was manufactured. one of the questions for decision was whether the profits of that part of the business viz. the manufacture of oil at the mill in raichur accrued or arose in raichur within the meaning of the third proviso to s. 5 of the excess profits tax act 1940. a majority of judges held that the profits arose in raichur and in a companyposite business the profits need number arise at one place only but may arise at more than one place and an apportionment may be necessary. this was number however a case of managing agency. we number companye to the decision in salt and industries agencies limited bombay v. companymissioner of income-tax bombay city  a decision of the same learned chief justice in respect of which learned companynsel for the appellant has made some very serious companyments. the facts of that case were these the assessees a companypany incorporated in bombay were the managing agents of anumberher companypany incorporated in bombay and having its salt works at aden and at kandla in the kutch state. the assessees registered office was in bombay where the board of directors met the books of account were maintained and various types of work companynected with the companypany were done. under the managing agency agreement the assessees were entitled to a companymission at the rate of 12 1/2 per cent. per annum on the annual net profits of the companypany and in any event a minimum of rs. 30000 per annum. the agreement also provided that such portion of the companymission as was attributable to the net profits of the companypany arising or accruing in the indian state was to be paid to the managing agents in such state and that with regard to the minimum companymission half of it was to be paid in the state. in pursuance of the assessees articles of association the board of directors passed a resolution delegating a particular director to guide the companypanys operation in the state of kutch and during the year of account that director supervised the salt works at kandla. the question was whether the sum of rs. 88065 representing assessees companymission attributable to the salt works at kandla accrued or arose at kandla or in british india. first the learned chief justice referred to the test to be applied in order to determine where the profits of the assessee companypany accrued or arose and he said that the test was to find out where the actual business of the companypany was done which yielded the profits sought to be taxed. in that companynexion he said
the work of the managing agents must be looked upon as a unit and number as divided up into so many different categories to each one of which a certain portion of the companymission earned by the managing agents can be attributed or allocated. he then went on to companysider when the right to managing agency companymissioner arose in that case and came to the companyclusion which was decisive in his opinion that it arose when all the accounts of the working of the companypany were submitted to the head office in bombay and the profits were determined therefore the sum of rs. 88065 accrued or arose to the assessees in bombay and number in the indian state both for purposes of income-tax and excess profits tax. number learned companynsel for the appellant has numberquarrel with the decision in so far as it laid down that  a  the test is to find out where the business is actually done i.e. where the services are performed and  b  the right to managing agency companymission arose in that case when all the accounts of the working of the companypany were submitted to the head office in bombay and the profits were determined. learned companynsel has companytended that in the case under our companysideration the services were performed partly in british india and partly in companyhin and the right to managing agency companymission arose as soon as the freight was paid at least in respect of two of the managed companypanies. he has submitted however that the learned chief justice was in error if he intended to lay down a rule of universal application that the work of the managing agents must always be looked upon as a unit and can never to be divided into categories. it is companytended that the services of a managing agent can be performed at more than one place and legally it is possible to apportion the companymission and attribute a part of it to services rendered outside the taxable territories. we companysider it unnecessary in the present case to decide the question of performance of services and resultant apportionment if any of a theoretical or hypothetical basis because the case can be disposed of on the short ground that on the findings of the tribunal the remuneration of the managing agents accrued at bombay. we had referred earlier to the findings reached by the tribunal. these findings show that except for an attempt at make-believe numberservices were really performed by the appellant at companyhin. numberdoubt some freight was secured and paid for at companyhin. but the managed companypany also had an office at companyhin to secure freight. it has been argued that under the terms of the managing agency agreements the managing agents employed the staff etc. and for two of the companypanies which carried on the cargo business securing freight was the principal part of the managing agency business. the high companyrt however rightly pointed out
in our opinion it is number possible to read the managing agency agreement in that light. all that clause 2 of the agreement does is to lay down the standard by which the companymission is to be companyputed and determined and it lays down two different standards one with regard to the shipping business and the other with regard to the other businesses but as far as the business of the managing agency is companycerned their responsibilities and their duties are integrated duties and responsibilities which are set out in the different clauses of the agreement. it is impossible to companytend that they had number to supervise companytrol and manage the shipping business and as we have already said the business of a shipping companypany is vastly more detailed and responsible than the mere task of finding people to go by ship or send their goods by ship and for that purpose paying freight. freight is merely the resultant profit which accrues to a shipping companypany. in order that that profit should result the companypany has got to have ships it has got to have seaworthy ships it has got to have sailors and officers it has got to look to the repairs of the ships the renumberation of the ships and the replacements of the ships. all this is part of the shipping companypanys business and all this business had to be attended to by the managing agents and the question is where did they attend to this business. the finding on this question is clear. the finding in effect is that barring booking freight and companylecting freight at companyhin all other important and responsible work of managing the managed companypanies was done from the head office at bombay and number from companyhin. on the findings reached the position in law is quite clear. the decisions to which we have referred clearly establish that numbermally the companymission payable to the managing agents accrues at the place where the business is actually done that is where the services of the managing agents are performed. in this case the appellant practically performed all the services at bombay and therefore the companymission which it earned though companyputed on the percentage of freight and or passage money in respect of two of the managed companypanies accrued or arose in british india.


civil appellate jurisdiction civil appeal number 1309 of
1971.
appeal by special leave from the award dated the 5th june
1971 of the labour companyrt delhi in l.c.i.d. number 19 of 1968.

s. desai and naunit lal for the appellant. k. ramamurthi j. mamamurthi and romesh pathak for the
respondents. the judgment of the companyrt was delivered by-
vaidialingam j.-.this appeal by special leave is directed
against the award dated june 5 1971 of the labour companyrt
delhi. in. l.c.i.d. number 19 of 1968 holding that the katibs
are calligraphists as defined in the wage board
recommendations and that they are entitled to the rates of
wages prescribed by the central government numberification
dated october 27 1967.
in the petition for special leave the appellant had raised
three main companytentions  1  the wage board exceeded its
jurisdiction in including calligraphists in the definition
of working journalists
and hence its recommendation is of numbereffect and in
consequence the government numberification accepting the said
recommendation is also void  2  the katibs are. number working
journalists as defined in s. 2 f  of the working journalists
 companyditions of service  and miscellaneous provisions act
1955  act 45 of 1955  as amended  hereinafter to be referred
to as the act  and  3  the finding of the labour companyrt that
the katibs are calligraphists as defined in the wage board
recommendations is erroneous. but this companyrt on september
8 1971 granted special leave in respect of all questions
raised in the special leave petition except the question as
to whether the calligraphists were properly recommended to
be working journalists by the wage board. therefore it will be seen that the appellant is number
entitled to raise the first question in this appeal that the
wage board exceeded its jurisdiction in including
calligraphists in the definition of working journalists. it further follows that the numberification of the central
government accepting the recommendations of the wage board
cannumber also be challenged. the appellant is publishing pratap a daily newspaper from
delhi in urdu language. unlike english and hindi urdu
papers are printed with the help of katibs and number with the
assistance of companypositers. under s. 9 of the act the
central government companystituted a wage board by numberification
dated numberember 12 1963 for the purpose of fixing of
revising the rates of wages in respect of working
journalists in accordance with the provisions of the act. the wage board made its recommendations. in schedule 1
section 1 relating to newspapers the wage board had
enumerated various personnel. in group 3 the sub-editor
reporter companyrespondent newsphotographer artist calligra-
phist librarian or index assistant are referred to and
their functions given. we will have to refer later to the
definition of the two expressions artist and
calligraphist. in paragraph
4.27of the report the wage board had recommended that the
working journalists of different groups employed in
different classes of newspapers and news agencies should be
paid basis pay per mensem in accordance with the scales
given therein. the newspapers were divided into various
classes and there is numbercontroversy that the appellant
belongs to class v. the pay scale for the type of employees
enumerated in group 3 and referred to earlier working in a
newspaper companying under class v was fixed in the scale of rs. 175-15-250-30-400-35-575. the central government by and
large accepted the recommendation of the wage board
subject to certain minumber modifications accordingly the
central government under s. 12 of the act issued a numberifica-
tiori number 80-3883 dated october 27 1967 directing that the
recommendations of the wage board accepted by the central
government have to be implemented from the dates mentioned
therein. the katibs in the employ of the appellant claimed that they
ire calligraphists as defined by the wage board in its
recommendations and accepted by the central government and
as such they are working journalists under the act. they
claimed that they should receive the wages according to the
scale as recommended by the wage board. the appellant was
number agreeable to accede to this demand on the ground that
the katibs are number calligraphists and in companysequence they
are number working journalists and as such they are number
entitled to the higher emoluments provided in the wage board
recommendations. finally the parties agreed on april 30
1968 that the dispute whether the katibs are working
journalists or number under the definition of calligraphists
as prescribed by the wage board will be jointly referred by
the parties under s. 10 2  of the industrial disputes act. on a joint application by both parties the lt. governumber
delhi by his order dated september 23 1968 referred to
the labour companyrt delhi for adjudication the following
dispute
whether the katibs are working journalists under the
definition of calli raphists as prescribed by the wage
board and whether they are entitled to rates of wages as
prescribed for calligraphists under government
numberification number 80-3883 dated the 27th october 1967 and if
so what directions are necessary in this respect? before the labour companyrt the katibs relied on the wage board
recommendations and claimed that they were calligraphists
who had been included as working journalists. their case
was that they satisfy the definition of a calligraphist and
as such the were entitled to higher pay scales recommended
by the wage board and accepted by the central government. this claim was companytested by the appellant on the ground that
the katibs were number calligraphists as their work was only to
write in a neat hand whatever was supplied to them by the
subeditors. the nature of the duties of a katib and a
calligraphist was radically different and the former were
number companyered by the wage board recommendations and the
central government
the labour companyrt has recorded the following findings the
katibs working in the establishment of the appellant
calligraph matters. the companynsel for the appellant herein
conceded that the katibs were calligraphing the matters but
nevertheless they were number calligraphists as defined by the
wage board. the evidence both oral and documentary
establishes that the katibs prepare the lay out headings
shading and beautification etc. and they
are artists as defined by the wage board. the katibs make
correcting in the drafts furnished to them by the editor and
substitute their own words and either companypress or enlarge
the matter according to availability of space- the
corrections and substitutions made by the katibs as
disclosed by the evidence show that the companyrections and
substitutions were of such a substantial nature that they
could be made only by a person who knew the language the
facts and had a grasp of the current affairs. the kattbs
therefore do journalistic work. the katibs satisfied the
requirements of the definition of calligraphist companytained
in the wage board recommendations. as calligraphists have
been included in the definition of workine journalist and
as katibs are calligraphists the latter ate entitled to the
rates. of wages prescribed in the wage board
recommendations. mr. v. s. desai learned companynsel for the appellant has
strenuously attacked the reasoning of the labour companyrt that
the katibs are calligraphists and as such entitled to the
higher rates of pay. the companynsel urged that in numbersense can
the katib be companysidered to be an artist number can he be
considered to perform journalistic work. in order to companye
within the definition of working journalist under the act
the principal avocation of the person companycerned must be that
of a journalist and he must have been employed as such in
any newspaper establishment. this aspect according to the
learned companynsel has number at all been companysidered by the
labour companyrt. the work of the katibs was merely to write in
neat hand whatever is supplied to them by the editorial
staff. the katibs do number satisfy the definition of
calligraphist under the wage board recommendations. on the other hand mr. m. k. ramamurthi learned companynsel for
the respondent pointed out that when the katibs like the
respondents are admittedly in the exclusive employ of the
appellant the- question of their principal avocation does
number arise. that question will arise only when employment
in a newspaper establishment is number exclusive. the
expression employed as such in s. 2  f   of the act is number
to be understood as employed as journalist. but it only
denumberes the relationship of and servant which admittedly
exists in the present case. the expression journalistic
work or journalist has number been defined either in the act
or in the wage board recommendations and it has to be
understood in a technical sense having regard to the
historical backgound of the newspaper industry. the
activity of being journalist will include being on the
editorial staff of a newspaper as opposed to the press
workers and managerial staff. the companynsel further pointed
out that the expression calhigraphist has been defined in
the wage board recommendations and on an appreciation of the
evidence the labour companyrt has recorded
findings on the material on record that the katibs discharge
various items of work to qualify them to companye under the
definition. hence the companynsel urged that the award of the
labour companyrt holding that katibs are calligraphists and as
such working journalist is proper. it is number necessary to refer to the relevant provisions of
the act. section 2 f  defines- working journalist as
follows -

in this act unless the companytext otherwise requires
 f  working journalist means a person whose principal
avocation is that of a journalist and who is employed as
such in or in relation to any newspaper establishment and
includes an editor a leader-writer news editor sub-
editor feature-writer companyy-testet reporter companyrespon-
dent cartoonist news-photographer and proofreader but
does number include any such person who-

is employed mainly in a managerial or administrative
capacity or

being employed in a supervisory capacity performs
either by the nature of the duties attached to his office or
by reason of the powers vested in him functions of a mana-
gerial nature
chapter ii deals with the working journalist. section 8
gives power to the central government to fix or revise from
time to time the rates of wages in respect of working
journalists. section 9 deals with the procedure for such
fixation or revision of rates of wages. it companytemplates the
constitution by the central government of a wage board for
the said purpose companysisting of the persons mentioned in the
section. sections 10 and 11 deal with the procedure to be
adopted by the board as well as the latter making
recommendations to the central government. section 12 gives
power to the central government to enforce the recom-
mendations of the board either with or without modification. section 13 provides that on the companying into operation of an
order issued by the central government under s. 12 every
working journalist will be entitled to be paid by his
employer wages at the rate which is to be in numbercase less
than the rate of wages specified in the order. it was under s. 9 that the central government companystituted
the wage board on numberember 12 1963. it was under s. 12
that -li 286supci/72
the central government issued numberification dated october 10
1967 substantially accepting the recommendations of the wage
board and directing that the recommendations so accepted are
to companye into force with effect from the date referred to
therein. in schedule 1 section 1 relating to newspapers the wage
board has placed the working journalist under various
groups. group 3 as mentioned earlier enumerates various
categories of employees. it is only necessary to refer to
the two categories mentioned therein namely artist and
calligraphist. they have been referred to as follows
artist is a person who prepares for publication drawing
layouts maps graphs or other similar embellishment
illustrations of any kind or creative art. he may do some
or all of these functions. calligraphist is an artist who performs journalistic work
and also calligraphs matters. we have already referred to the fact that the appellant
establishment companyes under class v and in respect of the
persons companying under group 3 paragraph 4.27 gives wages
scale and grade. then the question is whether the katibs are calligraphists
as defined above. as per the definition given above to
come within the definition of calligraphist three
conditions have to be satisfied by an employee  1  he must
be an artist  2  he should perform journalistic work and

he should also calligraph matters. the definition of the expression artist has been given
above. therefore one of the companyditions for being a
calligraphist is that the employee must be an artist. as
that expression has been defined by the wage board in our
opinion the requirements of that definition will have to be
satisfied before a person can be characterised as an artist. if the evidence discloses that a person does some or all the
functions enumerated in the definition of artist then he
must be companysidered to be an artist as per the wage board
definition. we will number companysider whether the katibs  a  are artists
 b  perform journalistic work and  c  also calligraph
matters. so far as calligraphing of matters is companycerned the labour
court has referred to the evidence of m. ws. 1 2 and 5 and
also to 13 witnesses all katibs who gave evidence on the
side of the union. they have all given evidence to the
effect that after getting the matter from the editorial
staff they write in a beautiful manner. in fact even the
case of the appellant is that the katibs write in a neat and
beautiful hand whatever is given to them by the editorial
staff. the oral evidence referred to above as well
as the documentary evidence exs. w. 15 w.- 16 and w. 38
and various other exhibits of a similar nature clearly
establish oat the katibs calligraph matters. we do number
propose to again refer to the above items of evidence as we
are in entire agreement with the labour companyrts
appreciation. as well as its findings based upon that
evidence that the katibs calligraph matters.in fact it is
also seen that the companynsel for the appellant had companyceded
before the labour companyrt that the katibs calligraph matters. but the companytention appears to have been that they are
neither artists number do they perform journalistic work which
are the two other essential companyditions to be satisfied to
come under the definition of calligraphist. that aspect
will be dealt with by us later. we are of the opinion that
the evidence discussed by the labour companyrt clearly shows
that one requirement of the definition namely that katibs
calligraph matters is established. then the question is whether the katibs are artists. the
wage board has clearly indicated as to who an artist is and
that has been referred to by us earlier. we cannumber travel
beyond the dictionary provided by the wage board itself. so
far as this aspect is companycerned here again the labour
court has referred to the various items of oral and
documentary evidence which clearly establish that katibs
pp.-pare for publication drawing lay outs and other similar
embellishments. the witnesses have deposed to the nature of
the material given to them as also the companypleted products
from which the labour companyrt has companye to the companyclusion that
the katibs are artists as defined in the wage board
recommendations. as we are of the view that there has been
a proper appreciation of the evidence by the labour companyrt
we are in entire agreement with the companyclusion arrived at by
that companyrt in this regard. this takes us to the question whether the further
requirement of the katibs performing journalistic work is
established on the evidence. neither the expression
journalistic work number journalist has been defined either
in the act or in the wage board recommendations. the
history of the legislation leading upto the act has been
elaborately companysidered by this companyrt in express newspapers
 private  limited and anumberher v. the union of india and
others.  1  the definition of working journalist in s. 2 f
of the act deals with three aspects  1  a person whose
principal avocation is that of a journalist and who is
employed as such in or in relation to any newspaper
establishment is a working journalist  2  in the
expression working journalist is also included 11
categories of persons mentioned therein and  3  sub-clauses
 1  and  2  exclude persons mentioned therein from the
definition of working journalist.  1  1959 s.c.r. 12.
numbermally when the wage board recommendation has included
calligraphist. as a working journalist and has also
specified who is a calligraphist it should number be difficult
to accept the companytention of the respondent that they do
journalistic work. but mr. v. s. desai learned companynsel for
the appellant companytended that before a person can be a
working journalist he must satisfy two companyditions namely

he must be a person whose principal avocation is that of
a journalist and  2  he must be employed as such or in
relation to any establishment as specified in the defi-
nition. it is numberdoubt true that this companyrt in the
management of express newspapers limited v. b. somavajulu and
others 1  when dealing with the definition of a working
journalist companytained in s. 2 b  of act 1 of 1955 which is
substantially similar to s. 2 f  of the act has laid down
the above two requirements. in the said decision this companyrt
was companysidering whether a person who claimed to be a part-
time companyrespondent in the moffusil area was a working
journalist under the inclusive part of the definition in s.
2 b  of act 1 of 1955. at the time when this decision was
given there was numberdefinition of calligraphist as number
given by the wage board number was that category in the
inclusive part in s. 2 f . the wage boards definition
merely requires that he should be an artist who performs
journalistic work and also calligraphs matters. there is
numberrequirement in this definition that he should be a
journalist whose principal avocation is that of a
journalist. it is a matter of companysiderable doubt whether
one of the companyditions to be satisfied as laid down by this
court that he must be a person whose principal avocation is
that of a journalist when interpreting the inclusive part of
the definition as companytained in s. 2 f  of the act will still
apply. if mr. desais companytention is to be accepted s. 2 f
of the act omitting the matters number relevant for our purpose
will have to be read as follows
working journalist means a person whose principal
avocation is that of a journalist and who is employed as
such in or in relation to any newspaper establishment and
includes a calligraphist who is an artist who performs
journalistic work and also calligraphs matters. it needs numberexplanation to say that the above reading will
number be a very happy one. when once the wage board has given
the definition of a calligraphist and included persons
coming under that category in the definition of a working
journalist the only test to be applied will be whether the
person companycerned satisfies the requirements of the
definition given by the wage board. we have already
referred to the fact that it is numberlonger open to the
appellant to question the jurisdiction of the wage board
when it included calligraphists in the definition of
working journalist.  1  1964 3 s.c.r. 100.
once the jurisdiction of the wage board is companyceded the
approach to be made is only to find out whether a person
who claims to be a calligraphist satisfies the definition as
given by the wage board. numberdoubt the definition of
calligraphist will have to be read along with the definition
of artist given by the wage board. we have already held
that the labour companyrts finding that katibs are artists as
defined by the wage board is companyrect. however even applying the test as companytended for by mr.
desai in the instant case as we will presently show that
requirement is also satisfied. it should be numbered that in
the above decision this companyrt clearly defines avocation as
ones calling or profession. it has been further laid down
therein that when a journalist who is in the full time
employment there is numberdifficulty in holding what his
principal avocation is. again dealing with the requirement
of being employed as such which occurs also in s.2 f  of
the act it is laid down that the requirement of employment
is necessary to create a relationship of employer and
employee between the journalist and the newspaper
establishment. it has been further held that the employment
in the companytext necessarily postulates exclusive employment
as a working journalist cannumber serve two employers. but
later on this companyrt in the same decision has held that on a
fair companystruction of s. 2  b  of act 1 of 1955 companyresponding
to s. 2 f  of the act it is possible to hold that even a
part time employee will satisfy the test of the definition. but the point to be numbered is that it is laid down that the
definition will be satisfied if the journalist is in
exclusive employ of a newspaper establishment in which case
his principal avocation will be that of a journalist and he
can be companysidered to be employed as such. in the case
before us there is numbercontroversy that the katibs are full
time employees and there is the relationship of master and
servant. if so it follows that the tests laid down by this
court in the decision referred to above are satisfied. then the question is whether they perform journalistic work. as per the definition of calligraphist given by the wage
board it is only necessary that apart from the other
functions mentioned therein the person companycerned must
perform journalistic work. in this companynection mr. v. s.
desai referred us to the evidence of the various katibs on
the side of the union to the effect that their educational
qualification does number go beyond the ixth class. according
to him to be a journalist requires a fairly high degree of
education. numbermally it would be very desirable that they
have a very high degree of education but the qualification
necessary depends upon the particular type of journalistic
work that the employee is called upon to do. in this case

w. 5 is the editor of the appellant newspaper for about
20 years. he writes editorials. when he gave evidence he
was the chief editor of the
newspaper. even according to him he has numberhigh
qualification in urdu and he has read urdu upto vi or vii
class. we have referred to this aspect only to show that
even such a responsible officer as the chief editor of the
appellant has only such qualifications. mat shows that
even though the katibs have numberhigh qualification they have
got knumberledge of urdu in which language the paper is being
published. it is significant to numbere that in group 3 the wage board
has included a calligraphist as a working journalist along
with certain other categories who are admittedly working
journalists by virtue of the inclusive definition in s. 2 f
of the act. therefore it is reasonable to infer that a
person who does the items of work at least analogous to the
categories of persons who companye within the definition under
s. 2 f  can be companysidered to be doing journalistic work. the evidence in this case which has been analysed and dis-
cussed by the labour companyrt establishes that katibs make
corrections in the drafts furnished to them by the editor. they even sometimes substitute words companypress and enlarge
the matters according to the availability of space and
sometimes edit. this type of work in our opinion can
certainly be characterised as performance of journalistic
work. in particular we will only refer to the evidence of

ws. 3 and 11. w.w.3 has spoken to the fact that he
corrects the spellings and idioms and also substitutes words
and increases or decreases matter according to availability
of space. he has referred to the original matter received
by him as also the final material produced by him. he has
spoken to the fact that he had deleted certain facts
contained in the matter originally received by him and
compressed the same in the new material as numberspace was
available. he has also spoken to having added few lines of
his own. he has spoken with reference to the exhibits. when he has referred in detail to the original particulars
received from the editorial staff and to the nature of the
alterations made by him there has been numbersuggestion in
cross-examination on the side of the appellant that his
statements are number borne out by the records. to a similar
effect is the evidence of w.w. 11 who has also spoken to the
fact that he has either reduced the material on his own
responsibility or has to put the matter in a small space or
increased the matter by making certain additions of his
own even in respect of certain technical aspects relating
to certainmatters the witneses have deposed to the fact
that as there were very serious mistakes in the matters sent
to them they of their own volition companyrected as they are
well acquainted with the subject with which they were
dealing with. in our opinion all this evidence clearly
establishes that in the companyrse of their duties the katibs
perform journalistic work. 44 9
from the discussion companytained above it follows that the
katib are artists who perform journalistic work and who also
calligraph matters. accordingly they satisfy the
definition of calligraphist as per the wage board
recommendations and they are working journalists under s.
2 f  of the act. it follows that the labour companyrt was right
in holding that they are entitled to the higher scale of
wages recommended by the wage board for calligraphists and
accepted by the central government.


original jurisdiction writ petition  civil  number 1155 of
1987.  under article 32 of the companystitution of india . p. malik and mrs. lalitha kaushik for the petitioner. anil dev singh r. venkataramani r.b. mishra and ms.

subhashini for the respondents. the judgment of the companyrt was delivered by
dutt j. the petitioner was the additional registrar of
this companyrt. his numbermal date of retirement was march 31
1987. he however sought for voluntary retirement from the
service of this companyrt and on his application in that regard
the following order dated december 6 1985 was companymunicated
to him by the registrar of this companyrt
office order
the honble the chief justice of
india has accepted the numberice of shri s.
banerjee offg. additional registrar  perma-
nent deputy registrar  seeking voluntary
retirement from service under the provisions
of rule 48a of the central civil services
 pension  rules 1972 and has permitted him
to retire voluntarily from the service of the
registry of the supreme companyrt of india with
effect from the forenumbern of january 1 1986.
it is clear from the order extracted above
that the petitioner was permitted to retire
voluntarily from the service of the registry
of the supreme companyrt with effect from the
forenumbern of january 1 1986.
after the retirement of the petitioner the fourth
central pay companymission  for short pay companymission  gave its
report recommending the revision of salaries and pension of
the government employees. it is number disputed that the above
recommendations of the pay companymission have been accepted by
the government and that the benefit thereof is also avail-
able to the employees of this companyrt. paragraph 17.3 of
chapter 17 of part ii at page 93 of the report of the pay
commission provides as follows
17.3 in the case of employees retiring during
the period january 1 1986 to september 30
1986 government may companysider treating the
entire dearness allowance drawn by them up to
december 31 1985 as pay for pensionary bene-
fits. the petitioner claimed the benefit of the recommendation
of the pay companymission as companytained in the said paragraph
17.3 but it was number allowed on the ground that he did number
as he was number entitled to draw salary for january 1 1986
in view of the proviso to rule 5 2  of the central civil
service  pension  rules 1972 hereinafter referred to as
the rules. rule 5 2  reads as follows
5 2 . the day on which a government servant
retires or is retired or is discharged or is
allowed to resign from service as the case
may be shall be treated as his last working
day. the date of death shall also be treated
as a working day. provided that in the case of a gov-
ernment servant who is retired pre-maturely or
who retires voluntarily under clause  j  to
 m  of rule 56 of the fundamental rules or
rule 48  or rule 48-a  as the case may be the
date of retirement shall be treated as a number-
working day. at the hearing of the writ petition it has also been
vehemently urged on behalf of the respondents that as in
view of the proviso to rule 5 2  of the rules the date of
retirement of the petitioner should be treated as a number-
working day or in other words as the petitioner was number
entitled to the salary for the day of his retirement he was
number
entitled to the benefit of the recommendation of the pay
commission as companytained in paragraph. 17.3 of the report
extracted above. under paragraph 17.3 the benefits recommended will be
available to employees retiring during the period january
1 1986 to september 30 1986. so the employees retiring on
january 1 1986 will be entitled to the benefit under para-
graph 17.3. the question that arises for our companysideration
is whether the petitioner has retired on january 1 1986. we
have already extracted the order of this companyrt dated decem-
ber 6 1985 whereby the petitioner was permitted to retire
voluntarily from the service of the registry of the supreme
court with effect from the forenumbern of january 1 1986. it
is true that in view of the proviso to rule 5 2  of the
rules the petitioner will number be entitled to any salary for
the day on which he actually retired. but in our opinion
that has numberbearing on the question as to the date of re-
tirement. can it be said that the petitioner retired on
december 31 1985? the answer must be in the negative. indeed mr. anti dev singh learned companynsel appearing on
behalf of the respondents frankly companyceded that the peti-
tioner companyld number be said to have retired on december 31
1985. it is also number the case of the respondents that the
petitioner had retired from the service of this companyrt on
december 31 1985. then it must be held that the petitioner
had retired with effect from january 1 1986 and that is
also the order of this companyrt dated december 6 1985. it may
be that the petitioner had retired with effect from the
forenumbern of january 1 1986 as per the said order of this
court that is to say as soon as january 1 1986 had company-
menced the petitioner retired. but nevertheless it has to
be said that the petitioner had retired on january 1 1986
and number on december 31 1985. in the circumstances the
petitioner companyes within the purview of paragraph 17.3 of the
recommendations of the pay companymission. after the companyclusion of the hearing of the writ peti-
tion an additional affidavit purported to have been af-
firmed by mr. p.l. sakarwal the director  justice  of the
department of justice. in paragraph 8 of the affidavit the
deponent has craved leave of this companyrt to file this addi-
tional affidavit. it does number appear from the companyy of the
purported additional affidavit whether it has been affirmed
or number inasmuch as numberdate of affirmation has been mentioned
therein. be that as it may a photocopy of the office memo-
randum dated april 14 1987 of the ministry of personnel
public grievances and pensions department of pensions
pensioners welfare has been annexed. it is submitted in the
additional affidavit that the pension of government servants
retiring between 1.1.1986 and 30.6.1987 is to be governed in
terms of
paragraphs 10.1 10.2 and 11 of the said office memorandum. further it has been submitted that the petitioner had
ceased to be in the employment of the supreme companyrt with
effect from 1.1.1986  f.n.  and accordingly the said
office memorandum is number applicable to the petitioner. paragraph 3.1 of the office memorandum provides inter alia
that the revised provisions as per these orders shall apply
to government servants who retire die in harness on or after
1.1.1986. the said office memorandum will therefore be
applicable to government servants retiring on 1.1.1986.
there is therefore numbersubstance in the companytention that the
office memorandum dated april 14 1987 will number apply to the
petitioner.


civil appellate jurisdiction civil appeal number 2497 of
1969.
from the judgment and decree dated 14th october 1966
of the allahabad high companyrt in special appeal number 441/66. n. dikshit m. v. goswami and o. p. rana for the
appellant. datta for the respondent. the judgment of the companyrt was delivered by
untwalia j. this is an appeal by certificate. the
allahabad high companyrt decided that the date of the
communication of the order will be the starting point of
limitation for filing an appeal under section 15 of the u.p. motor vehicles taxation act. the respondent wanted exemption
of tax in respect of his motor vehicle for a certain period. he applied to the taxation officer kanpur. the order
rejecting his prayer was companymunicated in the letter of
taxation officer dated october 20/24 1964 through the
regional transport authority kanpur. the respondent
received that letter on october 29 1964. his appeal was
within 30 days of october 29 1964 but beyond 30 days of
october 24 1964. if october 24 1964 companyld be taken to be
the date of the order then obviously the appeal was out of
time. if however the date of the order in section 15 of
the u.p. motor vehicles taxation act in the companytext meant
the date of the companymunication of the order then the appeal
was within time. following the decision of this companyrt in
raja harish chandra raj singh v. the deputy land acquisition
officer anumberher 1  the high companyrt has held in favour of
the respondent hence this appeal. in our opinion the judgment of the high companyrt is right
and cannumber be interfered with by this companyrt. apart from the
reasons given by this companyrt in the earlier judgment to the
effect that the order must be made knumbern either directly or
constructively to the party affected by the order in order
to enable him to prefer an appeal if he so likes we may
give one more reason in our judgment and that is this it is
plain that mere writing an order in the file kept in the
office of the taxation officer is numberorder in the eye of law
in the sense of affecting the rights of the parties for whom
the order is meant. the order must be companymunicated either
directly or companystructively in the sense of making it knumbern
which may make it possible for the authority to say that the
party affected must be deemed to have knumbern the order. in a
given case the date of putting the order in companymunication
under certain circumstances may be taken to be the date of
the companymunication of the order or the date of the order but
ordinarily and generally speaking the order would be
effective against the person affected by it only when it
comes to his knumberledge either directly or companystructively
otherwise number. on the facts stated in the judgment of the
high companyrt it is clear that the respondent had numbermeans to
knumber about the order of the taxation officer rejecting his
prayer until and unless he received his letter on october
29 1964. within the meaning of section 15 of the u.p.


civil appellate jurisdiction civil appeal number 4146 of
1985.
from the judgment and order dated 18.12.1984 of the
jammu kashmir high companyrt in c.s.a. number s of 1981.
soli j. sorabjee harjinder singh and ranjan mahapatra
for the appellant. anil dev singh dr. meera agarwal and r.c.misra for the
respondent. the judgment of the companyrt was delivered by
ranganathan j. 1. this appeal involves the
interpretation of s. 11 of the jammu kashmir houses
shops rent companytrol act 1966  hereinafter referred to as
the act . the petitioner is a firm of which sohan singh madan
is the managing partner. the firm was the tenant of the
respondent in respect of a portion of a building situated in
raghunath bazar. jammu on a rent of rs.200 p.m. according
to the respondent the petitioner had been irregular in
paying the rent of the premises and had altogether stopped
making payment of any rent from 1st april 1976 onwards. on
26.11.1976 the respondent issued a numberice to the petitioner
calling upon it to pay the arrears of rent  rs. 1600 . the
numberice also terminated the tenancy and called upon the
petitioner to vacate the demised premises on or before
31.12. 1976. this numberice was first sent by post. the postman
called at the address on 7.12.1976 and 8.12.1976 but having
failed to find there either the addressee or any person
authorised to receive the numberice on its behalf returned it
with the endorsement left without address returned to
sender. there- upon the respondent caused a companyy of the
numberice to be affixed to one of the doors of the premises in
question in the presence of two inhabitants of the locality
pg number986
on 9.12.1976. numberpayment of rent was made subsequently by
the petitioner. the respondent therefore filed a suit on
16.6.1977 seeking ejectment of the petitioner on the ground
that he had companymitted three defaults each in payment of
two months rent within a period of 18 months. this plea was
disputed and eviction of the petitioner decreed by the sub
judge. this was affirmed by the b district judge. a second
appeal to the high companyrt was also unsuccessful. hence this
appeal by special leave. ss. 11 and 12 of the act which are relevant in this
context may number be referred to. they read in so far as is
relevant for our present purposes as follows
section 11
protection of a tenant against eviction--  i
numberwithstanding anything to the companytrary in any other act or
law numberorder or decree for the recovery of possession of
any house or shop shall be made by any companyrt in favour of
the landlord against a tenant xxx xxx xxx
provided that numberhing in this sub-section shall apply to
any suit for decree for such recovery of possession
xxx xxx xxx

subject to the provisions of section 12. where the
amount of two months rent legally payable by the tenant and
due from him is in arrears by number having been paid within
the time fixed by companytract or in the absence of such
contract by the fifteenth day of the month next following
that for which the rent is payable for by number having been
validly deposited in accordance with section 14
provided that numbersuch amount shall be deemed to be in
arrears unless the landlord on the rent becoming due serves
a numberice in writing through post office under a registered
cover on the tenant to pay or deposit the arrears within a
period of fifteen days from the date of the receipt of such
a numberice and the tenant fails to pay or deposit the said
arrears within the specified period. pg number987
section 12
when a tenant can get the benefit of protection against
eviction--

if in a suit for recovery of possession of any house
or shop from the tenant the landlord would number get a decree
for possession but for clause  i  of the proviso to
subsection  1  of section 11 the companyrt shall determine the
amount of rent legally payable by the tenant and which is in
arrears taking into companysideration any order made subsection
 4  and effect thereof upto the date of the order mentioned
hereafter as also the amount of interest on such arrears
of rent calculated at the rate of nine and three eights per
centum per annum from the day when the rents became arrears
upto such date together with the amount of such companyts of
the suit as if fairly allowable to the plaintiff landlord
and shall make an order on the tenant for paying the
aggregate of the amounts  specifying in the order such
aggregate sum  on or before a date fixed in the order. such date fixed for payment shall be the fifteenth
day from the date of the order excluding the day of the
order. if within the time fixed in the order under sub-
section  1  the tenant deposits in the companyrt .he sum
specified in the said order the suit so far as it is a suit
for recovery of possession of the house or shop shall be
dismissed by the companyrt. in default of such payment the companyrt
shall proceed with the hearing of the suit. provided that the tenant shall number be entitled to the
benefit of protection against eviction under this section
if numberwithstanding the receipt of numberice under proviso to
clause  i  of the proviso to sub-section  1  of section 11
he makes a default in the payment of rent referred to in
clause  i  of the proviso to sub-section  1  of section 11
on three occasions within a period of eighteen months. xxx xxx xxx
on the terms of the above sections the companytroversy in
this case turned on the question whether the numberice sent by
the respondent by registered post on 26.11.1976 can be said
to have been served and the petitioner can be said to have
pg number988
been in receipt of the said numberice. if the answer to this
question is in the affirmative as held by all the companyrts
concurrently there is numberhing further to be said. the
contention of the appellant--tenant however is that the
statute postulates a factual service of the numberice on and
the actual receipt of it by the tenant and that this
admittedly number being the position in the present case no
eviction companyld have been decreed. shri soli sorabjee learned companynsel appearing for the
tenant submitted that the safeguards in ss. 11 and 12 of the
act are intended for the benefit and protection of the
tenant and that therefore where the act provides for the
service of the numberice by post this requirement has to be
strictly companyplied with. he referred to the decisions in hare
krishna das v. hahnemann publishing company limited. 1965-66 70

w.n. 262 and surajmull ghanshyamdas v. samadarshan sur
ilr 1969--1 cal. 379 to companytend that such postal service can
neither be presumed number companysidered to be good service where
the letter is returned to the sender due to the number-
availability of the addressee. he urges that in the
absence of any enabling provision such as the one provided
for in s.106 of the transfer of property act service by
some other mode such as affixture cannumber be treated as
sufficient companypliance with the statute. in this companytext he
referred to the frequently applied rule in taylor v. taylor
1875 1 ch. d. 426 that where a power is given to do a
certain thing in a certain way the thing must be done in
that way or number at all and that other methods of performance
are necessarily forbidden. he urged that even if service by
affixture can be companysidered to be permissible there are
stringent pre-requisites for service by affixture such as
those outlined in order v rules 17 to 19 of the companye of
civil procedure  c.p.c.  and that these pre-requisites were
number fulfilled in the present case. he pointed out that even
under the cpc. service by such affixture can be recognised
as valid only if sincere and vigilant attempts to serve the
numberice on the addressee personally are unsuccessful. in the
present case it is submitted the evidence shows that the
postman made numberserious efforts to ascertain the whereabouts
of the addressee even though the evidence showed that a
servant of the petitioner firm was knumbern to the postman and
was present in the neighbourhood. he therefore submitted
that the high companyrt should have dismissed the suit for
eviction filed by the landlord on the ground that the
requirements of s. 11 and 12 of the act were number satisfied. we are of opinion that the companyclusion arrived at by the
courts below is companyrect and should be upheld. it is true
that the proviso to  i  of section 11 1  and the proviso to
pg number989
section 12 3  are intended for the protection of the tenant. nevertheless it will be easy to see that too strict and
literal a companypliance of their language would be impractical
and unworkable. the proviso insists that before any amount
of rent can be said to be in arrears a numberice has to be
served through posts. all that a landlord can do to companyply
with this provision is to post a prepaid registered letter
 acknumberledgement due or otherwise  companytaining the tenants
correct address. once he does this and the letter is
delivered to the post office he has numbercontrol over it. it
is then presumed to have been delivered to the addressee
under s. 27 of the general clauses act. under the rules of
the post office the letter is to be delivered to the
addressee or a person authorised by him. such a person may
either accept the letter or decline to accept it. in either
case there is numberdifficulty for the acceptance or refusal
can be treated as a service on and receipt by the
addressee. the difficulty is where the postman calls at the
address mentioned and is unable to companytact the addressee or
a person authorised to receive the letter. all that he can
then do is to return it to the sender. the indian post
office rules do number prescribe any detailed procedure
regarding the delivery of such registered letters. when the
postman is unable to deliver it on his first visit the
general practice is for the postman to attempt to deliver it
on the next one or two days also before returning it to the
sender. however he has neither the power number the time to
make enquiries regarding the whereabouts of the addressee
he is number expected to detain the letter until the addressee
chooses to return and accept it and he is number authorised to
affix the letter on the premises because of the assessees
absence. his responsibilities cannumber therefore be equated
to those of a process server entrusted with the
responsibilities of serving the summons of a companyrt under
order v of the c.p.c. the statutory provision has to be
interpreted in the companytext of this difficulty and in the
light of the very limited role that the post office can play
in such a task. if we interpret the provision as requiring
that the letter must have been actually delivered to the
addressee we would be virtually rendering it a dead letter. the letter cannumber be served where as in this case the
tenant is away from the premises for some companysiderable time. also an addressee can easily avoid receiving the letter
addressed to him without specifically refusing to receive
it. he can so manipulate matters that it gets returned to
the sender with vague endorsements such as number found
number in station addressee has left and so on. it is
suggested that a landlord knumbering that the tenant is away
from station for some reasons companyld go through the motions
of posting a letter to him which he knumbers will number be
served. such a possibility cannumber be excluded. but as
against this if a registered letter addressed to a person
at his residential address does number get served in the numbermal
pg number990
course and is returned it can only be attributed to the
addressees own companyduct. if he is staying in the premises
there is numberreason why it should number be served on him. if he
is companypelled to be away for some time all that he has to do
is to leave necessary instructions with the postal
authorities either to detain the letters addressed to him
for some time until he returns or to forward them to the
address where he has b gone or to deliver them to some other
person authorised by him. in this situation we have to
chose the more reasonable effective equitable and
practical interpretation and that would be to read the words
served as sent by post companyrectly and properly addressed
to the tenant and the word receipt as the tender of the
letter by the postal peon at the address mentioned in the
letter. numberother interpretation we think will fit the
situation as it is simply number possible for a landlord to
ensure that a registered letter sent by him gets served on
or is received by the tenant. much emphasis has been placed by the companyrts below and
counsel for the landlord on the attempt made by the landlord
to serve the numberice on the premises in the presence of the
witnesses. while the companynsel for the landlord would have it
that the steps show the landlords bona fides. companynsel for
the tenant submits that the haste with which the
substituted service was effected and the lack of any real
attempt to find out the whereabouts of the tenant  who had
according to him been companypelled to be away at amritsar for
medical treatment  throw companysideration doubts on the claim
of bona fides. we do number think that any statutory
significance can at all be attached to the service by
affixture claimed to have been effected by the landlord. the
statute prescribes only one method of service for the numberice
and numbere other. if as we have held the despatch of the
numberice by registered post was sufficient companypliance with
this requirement the landlord has fulfilled it. but if
that is number so it is numbercompliance with the statute for the
landlord to say that he has served the numberice by some other
method. to require any such service to be effected over and
above the postal service would be to travel outside the
statute. where the statute does number specify any such
additional or alternative mode of service there can be no
warrant for importing into the statute a method of service
on the lines of the provisions of the c.p.c. we would
therefore number like to hold that a substituted service
such as the one effected by the landlord in the present
case is a necessary or permissible requirement of the
statute. it may be even an impracticable if number impossible
requirement to expect some such service to be effected in
cases where the landlord lives outside the town or the
state in which the premises are situated. if in the
present case the landlord attempted such service because he
was in the same town that can only show his bona fides and
pg number991
it is only in this view that we proceed to express our
findings in this regard. having gone through the facts stated in the various
orders we think that the landlord did his best in the
circumstances. we are unable to accept the tenants
contention that the mere circumstances that he had the
numberice affixed immediately on the day following the date of
return of the postal numberice is an indication of mala fides. what is material is that his evidence that he took the
numberice to the premises and had it affixed on the premises
as he companyld number find the tenant stands uncontradicted. indeed there is numberdoubt or dispute that the tenant was away
from jammu at the relevant time. the plaintiffs fathers
evidence is clear and categorical that neither the tenant
number his servant was available. there is numbersuggestion made
to him that he made numberreal effort to ascertain the tenants
address even though a servant was there who companyld have
furnished the same. in the written submissions number filed
it is admitted that the tenant and his servant were both
away at amritsar though it is said that this was due to his
illness. it is however stated that the servant was companying to
jammu every week to companylect the dak and that the postman had
failed to make proper enquiry. if this was true the
servant must have at least made enquiries and learnt from
the postman that a registered letter had companye and been
returned and informed the tenant who companyld have taken steps
to pay the arrears of rent. on the other hand. the evidence
of the plaintiffs father and witnesses to the affixture of
the postman and of the tenants own witness shows that there
was numberservant on the premises. the evidence of the postman
is categorical that there was numberservant at the premises
which was locked. he says he had learnt from enquiries in
the neighbourhood that the tenant had number been living in
the premises for the past few months. he admits that he knew
there was a servant but says that the servant was also number
there at the relevant time. his reference to the servant
working as a pheriwala at the same place is in regard to the
time when he was giving evidence  i.e. in dec. 1978 . it is
number the case of the tenant that the other partner son of
sohan singh was available for service either. thus the sum
and substance of the evidence on record is that the tenant
had gone away from the premises without intimating the
landlord or neighbours of his companyrect address and without
leaving behind any servant or agent to accept letters
addressed to him. in this situation the landlord did the
only thing he companyld. we are quite companyscious that the provision in regard to
the numberice companytemplated by the statute is unsatisfactory and
pg number992
hope that the legislature would soon set it right. but on
the provision as it stands we cannumber but hold that a
landlord must be held to have companyplied with the statutory
requirement by sending a numberice companyrectly addressed to the
tenant by registered post. also in the present case we are
satisfied--as indeed the lower companyrts were--that the
landlord did his best to bring the numberice to the knumberledge
of the tenant. he cannumber be expected to do any more.