criminal appellate jurisdiction criminal appeal number
246 of 1971.
appeal by special leave from the judgment and order
dated the 13th may 1971 of the punjab and haryana high companyrt
in criminal original number 61-m of 1971.
ram panjwani deputy advocate general m.p. i-l. s.
parihar and l. n. shroff for the appellants. p. sharma m. s. dhillon and s. k. mehta for
respondents number. 2 to 4.
nemo for respondent number 1.
the judgment of the companyrt was delivered by
fazal ali j.-this appeal by special leave is directed
against the judgment of the punjab . haryana high companyrt
dated may 13 197-1 by which the high companyrt allowed the writ
petition filed by the respondent ratan singh a prisoner who
was companyfined in central jail amritsar. the appeal arises in
the following circumstances. the respondent ratan singh was companyvicted by the
sessions judge bhind in the state of madhya pradesh by his
order dated october 16 1957 under s. 302 i.p.c. and
sentenced to imprisonment for life. an appeal filed by the
respondent against the order of the sessions judge was
dismissed by the high companyrt on may 19 1959. thereafter the
accused made a prayer to the government for transferring his
from gwalior jail to amritsar as the accused respondent
belonged to punjab state. the representation of the accused
was accepted and accordingly he was transferred to the
punjab jail where he was lodged at central jail amritsar. the order of transfer was passed on october 15 1959. the
respondent companytended that as he had companypleted the period of
20 years imprisonment including the remissions granted
under the punjab jail manual he was entitled to be released
forthwith and he accordingly made an application for his
release to the punjab government. in fact the admitted
position is that on may 7 1971 the accused had undergone
imprisonment for a period of 25 years 18 days and 19 hours
taking into account the various remissions granted to him
from time to time. the government of punjab forwarded the
representation of the respondent to the government or madhya
pradesh for passing an order of release. on april 18 1911
the state of madhya pradesh rejected the request of the
respondent for his release. thereafter the
accused respondent filed a writ petition in the high companyrt
of punjab haryana on the ground that the accused having
served the sentence for more than 20 years was entitled to
be released as a matter of companyrse under the provisions of
the punjab jail manual and the rules framed under the
prisons act. it was also companytended by the respondent that as
he was lodged
in a jail under the jurisdiction of the punjab
government? the appropriate government to order his release
was the punjab government and number the government of madhya
pradesh and therefore the request made by the punjab
government to the madhya pradesh government was number
warranted by law. the high companyrt without issuing numberice to
the state of madhya pradesh and after hearing the advocate-
general accepted the plea taken by the respondent and held
that punjab state was the appropriate authority to release
the respondent. the high companyrt relied upon a decision of the
madhya pradesh high companyrt in sitaram barelal v. state of
madhya pradesh and directed that as the respondent had
already served more than 20 years he was entitled to be
released forthwith. accordingly the high companyrt allowed the
petition and directed the state government to companysider the
case of the respondent for being released and dispose of the
case within 20 days from the date of the order of the high
court. it appears that in pursuance of the order of the high
court the respondent was released. the state of madhya pradesh has filed this appeal by
speciai leave against the order of the punjab and haryana
high companyrt on the ground that in law it was the madhya
pradesh government alone which had the power to remit the
sentence and release the prisoner at the high companyrt was in
error in holding that the punjab government companyld pass the
order of release. appearing in support of the appeal mr. ram
panjwani learned companynsel submitted i two points before us. in the first place it was argued that the high companyrt
completely overlooked the legal position that a sentence of
imprisonment for life companyld number be said to be a sentence
which would expire automatically after the expiry of 20
years including remissions the sentence would enure till the
life time of the prisoner but the state government had the
discretion under ss. 401 and 402 of the companye of criminal
procedure to remit the remaining part of the sentence and
order release of the prisoner. secondly it was submitted
that as the prisoner was companyvicted by a companyrt situate in the
state of madhya pradesh the appropriate government was the
madhya pradesh government and number the punjab government
where the prisoner was transferred to exercise its
discretion under s. 401 of the companye of criminal procedure. numberone appeared for the respondent but at the time of
granting special leave. this companyrt had ordered that the
release of the prisoner would number be reopened even if the
appeal succeeded. n other words the state of madhya pradesh
in this case is number companycerned with the individual case of
the respondent but only wants an authoritative decision on
the important principle involved in the case. as regards the first point namely that the prisoner
could be released automatically on the expiry of 20 years
under the punjab jail manual or the rules framed under the
prisons act the matter is numberlonger res integra and stands
concluded by a decision of this

air 969 m.p. 252.
court in gopal vinaykak godse v. state of maharashtra and
others 1  where the companyrt following a decision of the
privy companyncil in pandit kishori lal v. kingg-emperor 2
observed as follows
under that section a person transported for life
or any other term before the enactment of the said
section would be treated as a person sentenced to
rigorous imprisonment for life or for the said term. bl
if so the next question is whether there is any
provision of law whereunder a sentence for life
imprisonment without any formal remission by
appropriate. government can be automatically treated
as one for a definite period. numbersuch provision is
found in the indian penal companye companye of criminal
procedure or the prisons act. a sentence of transportation for life or
imprisonment for life must prima facie be treated as
transportation or imprisonment for the whole of the
remaining period of the companyvicted persons natural
life. the companyrt further observed thus
but the prisons act does number companyfer on any
authority a power to companymute or remit sentences it
provides only for the regulation of prisons and for the
treatment of prisoners companyfined therein. section 59 of
the prisons act companyfers a power on the state government
to make rules. inter alia for rewards for good companyduct. therefore the rules made under the act should be
construed within the scope of the ambit of the act. under the said rules the orders of all appropriate
government under s. 401 criminal procedure companye are a
pre-requisite for a release. numberother rule has been
brought to our numberice which companyfers an indefeasible
right on a prisoner sentenced to transportation for
life to an unconditional release on the expiry of a
particular term including remissions. the rules under
the prisons act do number substitute a lesser sentence for
a sentence of transportation for life. the question of remission is exclusively within
the province of the appropriate government and in this
case it is admitted that though the appropriate
government made g. certain remissions under s. 401 of
the companye of criminal procedure it did number remit the
entire sentence. we there fore hold that the
petitioner has number yet acquired ally right to release. it is therefore manifest from the decision of this
court that the rules framed under the prisons act or under
the jail manual do number affect the total period which the
prisoner has to suffer but merely amount
 l  1961 3 s.c.r. 410.

l.r. 72 ia 1.
to administrative instructions regarding the various
remissions to be given to the prisoner from time to time in
accordance with the rules. this companyrt further pointed out
that the question of remission of the entire sentence or a
part of it lies within the exclusive domain of the
appropriate government under s. 401 of the companye of criminal
procedure and neither s. 57 of the indian penal companye number any
rules or local acts can stultify the effect of the sentence
of life imprisonment given by the companyrt under the indian
penal companye. in other words this companyrt has clearly held that
a sentence for life would enure till the life-time of the
accused as it is number possible to fix a particular period of
the prisoners death so any remissions given the rules companyld
number be regarded as a substitute for a sentence of
transportation for life. in these circumstances therefore
it is clear that the high companyrt was in error in thinking
that the respondent was entitled to be released as of right
on companypleting the term of 20 years including the remissions. for these reasons therefore the first companytention raised by
the learned companynsel for the appellant is well founded and
must prevail. the next plank of the argument put forward by mr. ram
punjwani was that under s. 401 of the companye of criminal
procedure i was the state of madhya pradesh where the
accused was companyvicted which alone had the power to grant
remission and order release of the prisoner. it was
submitted that the transfer of the accused from the state of
madhya pradesh to the state of punjab was made merely at the
instance of the prisoner and for his companyvenience and companyld
number clothe the transferee state with the power to pass an
order under s. 401 of the companye of criminal procedure. in
order to understand the implications of the argument put
forward by the appellant it may be necessary extract the
relevant provisions of s. 401 of the companye of criminal
procedure which run thus
401.   1   when any person has been sentenced to
punishment for an offence the appropriate government
may at any time without companyditions or upon any
conditions which of the person sentenced accepts
suspend the execution of his sentence or remit the
whole or any part of the punishment to which he has
been sentenced. whenever an application is made to the
appropriate government for the suspension or remission
of a sentence the appropriate government may require
the presiding judge of the companyrt before or by which the
conviction was had or companyfirmed to state his opinion as
to whether the application should be granted or
refused together with his reasons for such opinion and
also to forward with the statement of such opinion a
certified companyy of the record of the trial or of such
record thereof as exists. a perusal of s. 401 of the companye of criminal procedure
would reveal that the section companysists of two parts-the
first part companyfers an absolute discretion on the appropriate
government to remit the whole or any part of the punishment
to which the accused may have been sentenced. the words used ill sub-s.  1  as also sub-s.  2  of s. 401
clearly show that the power is exercised by the appropriate
government. the expression appropriate government appears
to have been substituted for the expression provincial
government by amendment act 1950 previously the words used
were provincial government. sub-section  2  of s. 401 of
the companye of criminal procedure however enjoins that before
exercising its discretion on an application made to the
appropriate government for remission of the sentence the
appropriate government may require the presiding judge of
the companyrt which companyvicted the prisoner to state his opinion
whether the application should be granted or refused. thus
the procedure laid down in sub-s.  2  of s. 401 gives a
clear indication as to the real meaning and purport of the
words appropriate government. it is obvious that only that
government can call for the opinion of the presiding judge
of the companyrt which has companytrol over the said presiding judge
or the companyrt which is situated within the jurisdiction of
the said government. as a logical companyollary of the
interpretation of sub-s.  2  of s. 401 it is the state where
the accused was companyvicted which alone has the power to grant
remissions of the sentence. an the instant ease the punjab
government had absolutely numbercontrol or jurisdiction of the
sessions judge bhind in the state of madhya pradesh and
could number have called for an opinion from that companyrt. in
these circumstances there can be numbershadow of doubt that the
appropriate government mentioned in sub-s.  1  and sub-s.
 2  of s. 401 of the companye of criminal procedure refers to
the government of the state where the accused was companyvicted
that is to say the transferor government and number the
transferee government. any such transfer of the accused from
a jail situate in one state to a jail in other state has
absolutely numberbearing on the question as to the application
of s. 401 of the companye of criminal procedure because this is
merely an executive matter and an executive decision taken
to meet the companyvenience of the accused. furthermore the position is made absolutely clear by
sub-s.  3  to s. 402 of the companye of criminal procedure which
runs thus
in this section and in section 401 the
expression appropriate government shall mean-
 a  in cases where the sentence is for an offence
against or the order referred to in sub-
section  4a  of section 401 is passed under
any law relating to a matter to which the
executive power of the union extends the
central government and g
 b  in other cases the state government. a perusal of this provision clearly reveals that the test to
determine the appropriate government is to locate the state
where the accused was companyvicted and sentenced and the
government of that state would be the appropriate government
within the meaning of s. 401 of the companye of criminal
procedure. thus since the prisoner in the instant case was
tried companyvicted and sentenced in the state of madhya
pradesh the state of madhya pradesh would be the appropriate
government
to exercise the discretion for remission of the sentence
under s. 401 1  of the companye of criminal procedure. although
the present case is governed by the old companye yet we may
mention that the new companye of criminal procedure 1973 has
put the matter companypletely beyond and. companytroversy and has
reiterated the provisions of s. 402 3  in sub-s.  7  of s.
432 which provides thus

in this section and in section 433 the
expression appropriate government means-
 a  in cases where the sentence is for an offence
against or the order referred to in sub-
section  6  is passed under any law relating
to a matter to which the executive power of
the union extends the central government
 b  in other cases the government of the state
within which the offender is sentenced or the
said order is passed. actually this clause has been bodily lifted from the
provisions of s. 402 3  and has made the position absolutely
clear. in surjit singh v. state of punjab ors.  l  a division
bench of the punjab haryana high companyrt has also taken the
view that the appropriate government would be the government
of the state where the prisoner has been companyvicted and
sentenced. the division bench of the companyrt after an
exhaustive discussion of the various provisions of the companye
of criminal procedure and the rules observed as follows
there is however numberhing to indicate that for
the purposes of remission and suspension of sentences
under section 401 criminal procedure companye the
legislature intended to adopt a different definition of
appropriate government. in short under section 401
criminal procedure companye the government of the state
of companyviction and number the punjab government was
competent to remit the balance of the sentence of these
life companyvicts. all that the punjab government companyld do
was to forward the cases of these life-convicts to the
appropriate government for remitting the remaining term
of their life imprisonment in exercise of the power
under section 401 criminal procedure companye. the punjab
government has already made such a reference in favour
of the petitioners to the governments of the states of
conviction. neither the punjab government number the
superintendent of jail companycerned can release the
prisoner under any of the statutory rules companytained in
punjab jail manual without receiving the necessary
orders of the appropriate government under section 401.
pending the receipt of orders of the appropriate
government therefore the detention of the petitioners
could number by any reasoning be called illegal. criminal writ number 11 of 1971 decided on 26-5-72.
we find ourselves in companyplete agreement with the view taken
by the punjab haryana high companyrt. before closing the judgment we may refer to sitaram
barelals s case  supra  which forms the sheet-anchor of the
decision of the high companyrt in the instant case. to begin
with that case does number deal with the identical point
involved in the present case. iii that case the state
government had exercised a statutory power under. i special
act passed by the state of madhya pradesh namely the
madhya pradesh prisoners release on probation act 16 of
1954. under the provisions of that act the state government
was given the power to release prisoners found to have been
of good companyduct by imposing certain companyditions for their
rule it was number here the government was exercising its
discretion under s. 401 of the companye of criminal procedure
for remission of the part of the sentence after the accused
had served the sentence for 20 years and claimed to be
released. secondly the power for a temporary release of the
prisoner was companyferred by the said act on the state of
madhya pradesh under certain companyditions. the government was
therefore exercising as statutory power. in these
circumstances the facts in sitaram barelals case  supra
were quite different from the facts of the present case. it
is true that the prisoner in that case was lodged in a jail
in the state of maharashtra but in view of the provisions of
the special at a particular state government alone was
empowered to exercise its discretion under the provisions of
s. 2 of the said act. in the instant case there is numbersuch
act at all in the state of punjab haryana which companyld
have provided any justification for take said state to
exercise its power to release the prisoner. thirdly? as
already state the power companyferred by the act was merely a
power to release the prisoner on a temporary basis subject
to certain companyditions which is number the case here at all. in
these circumstances the high companyrt was number at and justified
in relying on the decision of the madhya pradesh high companyrt
in sitaram barelals case  supra  for tile proposition that
the punjab government would be the appropriate government to
exercise power under s. 401  1  of the companye of criminal
procedure
from a review of the authorities and the statutory
provisions of the companye of criminal procedure the following
propositions emerge
 1  that a sentence of imprisonment for life does
number automatically expire at the end of 20
years including the remissions because the
administrative rules framed under the various
jail manuals or under the prisons act cannumber
supersede the statutory provisions of the
indian penal companye. a sentence of imprisonment
for life means a sentence for the entire life
of the prisoner unless the appropriate
government chooses to exercise its discretion
to remit either the whole or a part of the
sentence under s. 401 of the companye of criminal
procedure
 2  that the appropriate government has the
undoubted discretion to remit or refuse to
remit the sentence
and where it refuses to remit the sentence no
writ can be issued directing the state
government to release the prisoner
 3  that the appropriate government which is
empowered to grant remission under s. 401 of
the companye of criminal procedure is the
government of the state where the prisoner
has been companyvicted and sentenced that is to
say the transferor state and number the
transferee state where the prisoner may have
been transferred at his instance under the
transfer of prisoners act and
 4  that where the transferee state feels that
the accused has companypleted a period of 20
years it has merely to forward the request of
the prisoner to the companycerned state
government that is to say the government of
the state where the prisoner was companynected
and sentenced and even if this request is
rejected by the state government the order of
the government cannumber be interfered with by a
high companyrt in its writ jurisdiction.


original jurisdiction -petitions number. 261 and 365 of 1961.
petitions under art. 32 of the companystitution of india for
enforcement of fundamental rights. k. daphtary solicitor-general of india k. p.
bhandari and b. gopalakrishnan for the petitioners  in
petn. number 261/61 . l. goshin and k. l. mehta for the petitioners  in
petn. number 365 of 61 . m. sikri advocate-general for the state of the punjab

s. bindra and p. d. menumber for the respondents. 1962. july 27. the judgment of the companyrt was delivered by
wanchoo j.-these two petitions raise a question as to the
validiy and companystitutionality of r. 31 framed under the
pepsu tenancy and agricultural lands act  act number 13 of
1955  as amended by pepsu act number 15 of 1956  hereinafter
referred to as the act  and will be dealt with together. the attack on the rule is practically similar in the two
petitions and therefore we shall only give the facts in
petition number 261 to understand the nature of the attack. the petitioners in petition number 261 are landowners in
village dhamo majra district patiala in the state of
punjab. they are running an agricultural farm on a
mechanised scale and the area of the farm measures 421
acres. this area is a companypact block of land and it is said
that some part of the area is potentially of high
productivity whereas other area is of inferior quality and
less productive capacity by reason of the presence of
alkaline patches of soil therein. the land was originally
scrub jungle and was uneven and extensive reclamation was
carried on by the petitioners at heavy companyt. they spent a
large amount far terracing and leveling the land
constructing bundhs water channels approach roads and in
standardising the area of the fields. two wells were
constructed for providing irrigational facilities and the
petitioners have their own electric substation for the
purpose. they have also companystructed manure pits and have
made permanent structural improvements in the shape of
construction of roads servant quarters tractor sheds
cattle-sheds
and stores and have in all incurred expenses over rupees
three lacs for all these purposes. the petitioners are
carrying on farming on the basis of scientific cultivation
practices sowing practices and manure practices and because
of the use of modern technique the overall yield per acre is
very high keeping in view the fertility and nature of the
soil. on march 4 1952 the act was enacted. it was amended on
october 30 1956 and chaps. iv-a and iv-b were introduced
therein. the petitioners have number challenged the
constitutionality of these two chapters and their attack is
only on r. 31 framed under the powers companyferred on the state
government under these chapters. the scheme of chap. iv-a
is to provide ceiling on land and s. 32-a thereof fixes the
permissible limit of land which can be owned or hold by any
person as landowner or tenant under his personal
cultivation. permissible limit is defined in s. 3 of the
act and means thirty standard acres of land and where such
thirty standard acres on being companyverted into ordinary acres
exceed eighty acres such eighty acres. a standard acre
is defined in s. 2  1  as a measure of land companyvertible
with reference to yield from and the quality of the soil
into ordinary acres according to the prescribed scale. section 32-b prescribes for returns by the person having
land in excess of the ceiling. section 32-d provides that
the companylector shall prepare a draft statement in the manner
prescribed showing among other particulars the total area
of land owned or held by a person the specific parcels of
land which the landowner may retain by way of his
permissible limit or exemption from ceiling and also the
surplus area. section 32-e provides for the vesting of the
surplus area in the state government. section 32f offices
power to the companylector to take possession the surplus area. section 32-g provides for principles of payment of
compensation and sea. 32-j for the
disposal of the surplus area. then companyes s. 32-k  1  with
which we are mainly companycerned and the relevant part of it is
in these terms-
32-k  1 -the provisions of section 32a shall
number apply to-
 i
 ii
 iii

efficiently managed farms which companysist
of companypact books on which heavy investment or
permanent structural improvements have been
made and whose break-up is likely to lead to
a fall in production
 v
 vi
section 32-.p which is in chap. iv-b provides
for the establishment of a companymission called
the pepsu land companymission  hereinafter
referred to as the companymission  and sub-ss.  4  and  5  thereof are in theme terms-

subject to the provisions of this act and
in accordance with any rules which may be made
by the state government in this behalf it
shall be the duty of the companymission to-
 a
 b
 c  advise the state government with regard
to exemption of lands from the ceiling in
accordance with the provision of section 32.k. the advice given by the pepsu land
commission under clause  e  of subsection  4
shall be binding on the state government and
numberwithstanding anything in section 32-d no
final statement shall in a case in which
exemption is claimed under section 32-k be
published unless such advice is included
therein. section 52 given power to the state government to frame
rules to carry out the purposes of the act. by virtue of the power companyferred on the state government to
frame rules rules were framed in march 1958 to carry out
the purposes of the act. we are companycerned in the present
petitions only with rr. 5 and 31. rule 5 read with sch. a
provides for companyversion of ordinary acres into standard
acres and r. 31 lays down how the exemption of efficiently
managed arms shall be determined sub-rule  1  thereof
provides that if any person wishes to claim exemption from
the companyling under cl  iv  of sub-s.  1  of b. 32-k of the
act be shall also furnish information in form xi to the
collector alongwith information required through other forms
prescribed under the.rules. sub-rule  2  lays down that the
commission shall assign marks in the manner provided in sub-
r.  4  in order to decide whether it is a farm which is
efficiently managed and companysists of companypact blocks on which
heavy investment straotural improvements have been made and
whose break-up is likely to lead to a fall in production
and further makes the following classification of farms -
claw a if it is awarded 80 per centum or
more marks
class b if it is awarded 60 to 80 per centum
marks. class c if it is awarded less than 60 per
centum marks. it is further provided that a class a farm shall be deemed
to be an efficiently managed farm and fifty per centum of
the area under a farm of class b shall subject to the choice
of the landowner be deemed to be an efficiently managed
farm and that numberarea under a farm of class c shall be
deemed to be an efficiently managed farm. sub-rule  3
further provides that the above classification of farm
shall be revised by government annually in the months of
january and february and if any efficiently managed farm
ceases to be so the exemption granted in respect there of
shall subject to to the other provisions of the act be
withdrawn by government. sub-rule  4   a  provides that
the maximum marks to be awarded to a farm for the purposes
of classification shall be 1000 and sub-r.  4   b
provides that the features for which marks are to be awarded
are those given in sch. b and marks shall be awarded for
each feature subject to the maximum marks numbered against each
in that schedule provided that in allotting marks for
yield the companymission shall apply the standard yields given
in sch. c. from xi lays down the particulars and there are
two sch. b and c. out of the total of 1000 marks 500 marks
are prescribed for various features mentioned in items i to
ix of sch. b while 500 marks are for yield. the land in
the former pepsu state is divided into four classes for the
purpose of sch. b. viz. mountaneous sub-montane central
prescribes average yield in maunds of various crops per
acre for irrigated and unirrigated lands. this in brief is the scheme of act and r.32 framed
thereunder. the petitioners case is that the companymission is
inquiring into the petitioners claim of
exemption under s. 32 k  1   iv  of the act and in doing so
it is bound to follow the requirements of r.31 in addition-
to the fulfillment of the companyditions in cl.  iv  of s.32-k
 1 . the petitioners companytend that the standards of yields
prescribed in sch. under r. 31 are arbitrary obnumberious
unreasonable hypothetical companypletely unrealistic and
unattainable in any modern farm and are repugnant to the
provisions of the act. it is further companytended that the
system of marking which has been evolved under r. 31 is
completely alien and foreign to the act. reliance is placed
on behalf of the petitioners on the observations of the sub-
committee set up by the planning companymission on the problems
of re-organisation panel on land reforms for the purpose of
suggesting standards of efficient cultivation and management
and sanctions for the enforcement of standards when it said
that though an obvious test of good husbandry may appear to
be the companyparative yield of crops or the gross produce per
acre the- sub-committee was of the opinion for various
reasons which it mentioned that the yield varied with a
number of factors whose effects cannumber be measured
quantitatively such as location the fertility and texture
of the soil the vagaries of the climate the incidence of
epidemics etc. which are beyond the companytrol of the farmer. the subcommittee was therefore number prepared to apply the
test of yield as the sole test of good husbandry. the
petitioners further allege that the yield fixed by sch. c
showed great disparity between it and the actual average
produce par acre for different crops in different states of
india and in different districts of pepsu and obviously
results in discrimination. it is also urged that the
standards fixed by sch. c were unattainable and therefore
the petitioners claim for exemption under a. 32 k  1   iv
would be seriously jeopardized if r. 31 is applied. it is
contended that the rule goes beyond the power
conferred on the state government under a. 32 k and was
therefore ultra vires the act. further it is urged that r.
31 along with the two schedules was a companyourable piece of
legislation and the object of framing it was to defeat the
purpose of the act with the intention of seeing that no
exemption may be granted even though the legislature
intended under s. 32 k  1   iv  to grant exemption to
efficiently managed farms. it is also urged that by making
r. 31 the state has fettered the judgment and discretion of
the companymission which it companyld number do under the act. the
petitioners therefore pray that r. 31 should be struck down
as ultra vires of the act and also as unconstitutional and
the respondents should be directred number to give effect to r.
31.
the petitions have been opposed on behalf of the state of
punjab which is successor to the former state of papsu and
it has been urged that r. 31 does number go beyond the rule
making power companyferred on the state government and is intra
vires the act and is number unconstitutional. we do number think
it necessary to set out in detail the points raised in the
reply of the state as they will appear from the discussion
in the later part of this judgment. suffice it to say that
the state has challenged all the grounds raised on behalf of
the petitioners in support of their case that r. 31 is ultra
vires the act and unconstitutional. in order to determine the question raised in these
petitions it is necessary to refer to the scheme of chapter
iv-a of the act and the implications of exemption provided
under s. 32 k 1   iv . chapter iv-a is obviously a measure
of land reform and is intended to provide for equitable
distribution of land and with that object a. 32 a provides
for ceiling on land holdings by an individual. the companyst-
itutionality of the act as we have already said has
number been challenged and therefore it must be held that the
provisions of chap. iv-a when they provide for ceiling on
land and disposal of surplus land are reasonable
restrictions on the right of persons holding land. section
32 k  1  however provides that the provision asto ceiling
contained in 8. 32-a shall number apply to certain type of
lands and one of those types is mentioned in el.  iv
thereof  namely efficiently managed farms which companysist of
compact blocks on which heavy investments or permanent
structural improvements have been made and whose break-up is
likely to lead to a fall in production . therefore before
any farm can claim that the ceiling as companytained in s.32-a
shall number apply to it. it has to companyply with the companyditions
in cl.  iv . these companyditions which may be deduced from cl. are-

that the farm should be efficiently
managed

that it should companysist of companypact blocks

that heavy investment or permanent
structural improvements must have been made
on the farm and

the break up of the farm is likely to
lead to a fall in production. before therefore a person owning or holding a farm can claim
exemption from the ceiling provided in s. 32 a he has to
show that his farm companyplies with all the four companyditions
mentioned above. in particular before a person owning or
holding a farm can claim that s. 32 a should number be applied
in his case he must show that a break up of the farm is
likely to lead to a fall in production. it will thus be
clear that the first three companyditions under s. 32 k  1   iv
are companycerned with the efficiency of the farm which has to
be taken out of s. 32 a while the fourth companydition is
concerned with the yield from
the farm. therefore whatever may have been the view of the
sub-committee of the planning companymission with respect to
yield as a criterion of good husbandry there is numberdoubt
that s. 32 k  1   iv  requires the it in companysidering whether
the ceiling provided in a. 32a shall be applied to a
particular farm its yield must taken into companysideration and
the farm can only avoid its break up if the result of the
break up is likely to lead to a fall in production. there
can be numberdoubt therefore that in order that a farm may get
the benefit of a. 32k  1   iv  it must satisfy the four
conditions set out above. ion the act has provided by s. 32 p that the quest-
whether a farm should get the benefit of s. 32 i k  1   iv
will be decided by the companymission sub- section  4  of s.
32p lays down that it will be the duty of the companymission
subject to the provisions of the act and in accordance with
the rules which may be made by the state government to
advise the state government with regard to exemption of
lands from the ceiling in accordance with the provisions of
a. 32k. sub-section  5  provides that the advice given by
the companymission shall be binding on the state government. sub-section  4  itself shows in addition to the general
power of the state government to frame rules under a. 52 for
carrying out the purposes of the act that the state govern-
ment has the power to frame rules for the guide of the
commission in carrying out its duties under a. 32p  4   c
rule 31 has obviously been framed with that object. the
petitioners however attack the marking system evolved under
that rule on the ground that this is companypletely alien and
foreign to the act. we cannumber agree with this companytention. it is true that the companymission would have to decide whether
a farm is entitled to the benefit of a. 32k. if numberrules
had been framed the matter would have been left at large for
determination of the companymission to the best of its ability. it is true that the
commission companysists of a chairman who is or has been a judge
of the high companyrt and two members to be numberinated by the
state government having special knumberledge or practical
experience of land or agricultural problems even so we do
number think that the act did number companytemplate framing of rules
which will give certain objective guidance to the companymission
in carrying out its duties. we do number think that in
evolving the marking system as provided in r. 31 the
commissions discretion has been fettered and its independent
judgment made illusory. so long as the marking system takes
into account what is required under s. 32 k  1   iv  in. order to claim exemption from ceiling it cannumber be said that
the marking system that has been evolved is something beyond
what was companytemplated by the legislature. a perusal of sch. b. to r. 31 shows that items i to ix which deal with lay-
out cultivation practices sowing practices manure
practices soil companyservation practical development of
irrigation facilities plant protection measures keeping of
records and miscellaneous items  like quality of draught and
milch animals and their maintenance arrangement for storage
of produce small orchards home poultry farm apiculture
sareculture participation in companyoperative associations
treatment with labour etc.  are all meant to evaluate the
first three companyditions in s. 32 k  1   iv  as indicated by
us above. we have been pointed out only one item in sch. b
under head lay-out which seems to be out of place and
which carries 9 marks out of 500 marks. that item is
voluntary companysolidation and the criticism on behalf of the
petitioners is that too long as the area is companypact it is
immaterial how that companypactness has been achieved whether
voluntarily or otherwise. barring this item all the other
items appear to carry out the first three companyditions
mentioned by us above
and therefore the companymission will have a standard when it
considers the question of exemption of farms. it has
full discretion to evaluate the various features set out in
sch. b items i to ix and has full power to give such marks
as it thinks fit. i cannumber therefore be said that by
providing the marking system in sch. b the rule has in any
way fettered the discretion and judgment of the companymission
and affected its independence. further item x in sch. b is
with respect to yields and carries 500 marks out of a
total of 1000 marks. thus the system behind sch. b is
that half the total number of marks is provided for the
first three companyditions and the other half is provided for
the yields. we have already mentioned that the fourth
condition under a. 32 k  1  iv  shows that one of the main
qualifications for exemption from ceiling under a. 32 k is
that the production of the farm should be such that its
break-up shall lead to a fall in production. in the
circumstances we do number think that it can be said that the
allotment of half the total number of marks to yields in
sch. b is in any manner companytrary to the intention of the
legislature. we cannumber therefore accept the companytention of
the petitioners that the marking system which has been
evolved in soh. b is in any way foreign to the purposes of
the act or in any way it fails to carry out the object
behind s. 32 k  1  iv . the marking system only gives
guidance to the companymision in the task assigned to it by s.
32 p  4  o . the attack on r. 31 on the ground that the
marking system evolved therein is foreign to the purpose of
s. 32 k  1  iv  must fail. the main attack of the petitioners however is on sch. c.
this schedule prescribes the average yield in maunds of
various crops for irrigated and unirrigated lands for
various districts and tehsils of the former states of pepsu
with which the act is companycerned. rule 31 provides that in
giving
marks for yields the companymission shall apply the standred
yields given in sch. c. the first companytention of the
petitioners in this behalf is that the standards of yield
have been fixed so high that they are unattainable and this
suggests that the intention of the framers of sch. c. was
to make the yields so high that numberfarm companyld reach that
standard with the result that the intention behind s. 32 k
 1  iv  of exempting efficiently managed farms should be
defeated. in effect this companytention is a charge of mala
fides against the state in framing sch. c with the object
of nullifying the intention of the legislature companytained in
s. 32 k  1  iv . schedule c companytains 13 crops the yields
of which have been prescribed under two heads namely  i
irrigated and  ii  unirrigated. learned companynsel for the
petitioners however companycentrated on wheat to knumber how the
standard prescribed is so high and arbitrary as to be
unattainable and we shall therefore companysider the case of
wheat. it is however urged on behalf of the petitioners
that practically the same arguments will apply to the other
crops we shall assume for present purposes that what applies
to wheat will also apply to other crops. the standard fixed
for wheat for practically the entire area of the former
state of pepsu  except kandaghat and nalagarh assessment
circles pahar  is thirty months per acre for irrigated and
10 maunds for unirrigated lands. it is said that this is an
unattainable standard and therefore soh. c has been framed
with the idea of breaking up the efficiently managed farms
completely inspite of the intention of the legislature
otherwise in this companytention reliance has been placed on
certain produce figures for that area by either side. before however we companysider those figures we may refer to r.
31  2  whice divides the frams into three categories
according to marking. we shall refer to this division later
in anumberher company-
nection but here it may be remarked that in order that an a
class farm be deemed under r. 31  2  to be an efficiently
managed farm that requires only 80 per ceutum of the total
marks so that when we apply the yields fixed under sch c we
have to scale them down to 80 per companytum for even if yields
are at 80 per centum the farm will be wholly entitled to
exemption under r. 31  2 . therefore though the yields
fixed is 30 maunds for irrigated land and 10 maunds for
unirrigated land in theory the practical effect of r. 31
 2  is that if a farm produces 24 maunds per acre of
irrigated land and 8 maunds per acre of unirrigated land it
will pass the test prescribed by a. 32k  1   iv  we have
therefore to companypare this yield with the other figures which
have been brought to our numberice by either side to decide
whether the yield fixed in sch.c has been deliberately fixed
so high as to be unattainable with the object of making the
provision of s. 32k  1   iv  nugatory. the burden of
proving this and so establishing the mala fides of the state
government is on the petitioners. before we companysider these figures we may dispose of a short
point as to the date on which valuation under s. 32 k will
have to be made. section 32 k came into force on october
30 1956 and it is obvious that it is as on that date that
the companymission will have to decide whether a particular farm
complies with the requirements of s. 32 k  1   iv  and
should therefore be exempted from the operation of the
ceiling provided in s. 32aq the statistics that have been
provided to us however are of a later period. we propose to
consider them but it will always have to be kept in mind
that the decision of the companymission has to be on the facts
as they stood on october 30 1956 so far as s. 32 k
 1   iv  is companycerned. the board of econumberic inquiry punjab  india  publishes every
year a bulletin on farm accounts in the punjab and this
shows that the average yield in maunds for punjab as a whole
in the year 1956-57 of wheat on irrigated land was 13.46
maunds per acre and on unirrigated land 10-68. the same
figures for 1957-58 were 14.57 and 10.99 and for 1958-59
14.65 and 10.1. the same figures of central zone punjab
area were 16.29 and 3.67 for 1956-57 12.27 and 5.53 for
195758 and 15.29 and 11.12 for 1958-59. taking the matter
district wise the same figures were 15.95 and b for
ludhaina district for 1956-57 and 15.83 and 6.15 in 1958-59.
for sangurur district which in the former state of pepsu the
figures were 15.33 and 6.41 for the year 1958-59. these
figures seem to show that so far as the standard fixed in
sch. c for unirrigated land is companycerned it cannumber be said
to be necessarily unattainable for the standard is 10
maunds which when reduced to 80 per centum companyes only to
eight maunds. as for the irrigated area the standard is 30
maunds which when reduced to 80 per centum companyes to 24
maunds. there is numberdoubt that the standard for the irri-
gated area is companyparatively very much higher than the
averages in the bulletin mentioned above. in reply however
the state reliefs on certain yields which are certainly very
much higher. unfortunately however we cannumber attach much
value to these yields for they were obtained in crop company-
petitions and these yields were for irrigated lands varying
from over 32 maunds to over 66 maunds per acre. one of the
competitors who showed an yield of over 44 maunds per acre
has sworn an affidavit to show how these yields in crop
competition are arrived at. according to him the area
selected is the best one acre of land which is specially
prepared for the purpose. it is intensively
ploughed and abnumbermal doses of manure and fertlisers are put
in it. the irrigation also is twice the numbermal irrigation. further at the time of harvesting only one biswas of land is
out. out of this only one bundle of crop out is threshed
and out of the yield obtained from this bundle the yield of
one acre is companyputed. obviously the yield obtained in such
a companypetition is number of such value for purposes of
comparison. but this however does number dispose of the
matter. it must be remembered that s. 32 k  1   iv
postulates that only those farms would be exempted whose
break-up would lead to a fell in production. this clearly
implies that if the farm in question is only producing what
the average yield is in the whole of the punjab its break-up
would certainly number lead to a fall in production therefore
in order that a farm may companyply with the companydition that its
break-up would result in a fall of production it is obvious
that its production must be higher than the average yield
for the whole of the punjab. we have already pointed out
that so far as unirrigated land is companycerned the fixing of
the standard at 8 maunds per acre does number appear to be too
high in view of the figures to be found in the bulletin
published by the board of econumberic inquiry punjab  india
even though the figures relates to the period after october
30 1956. asto the irrigated area it seems that the average
production bars reached up to about 16 maunds per acre. the
standard fixed in sch. c is 30 maunds which when reduced to
80 per centum companyes to 24 maunds. on the materials that
have been provided by either side on this record we would
hesitate to say that the standard of 24 maunds per acre for
irrigated land of the best quality would be too high. therefore if the standard fixed in soh. c is to be taken
to apply to the beat quality irrigated land and that
standard is reduced to 80 per centum in view of r. 31  2
we
would hesitate to say that sch. c had fixed an un. attainable standard and so was a mala fide exercise of power
to frame rules with th object of defeating the intention of
the legislature companytained in a. 32 k  1   iv . we have
already said that we propose to take the figures supplied to
us with reference to wheat only and we shall assume as the
learned companynsel for the petitioners ask us to assume that
what is true about wheat would be equally true about other
crops. we would therefore hesitate in the case of other
produce also to say that the yield are too high and
unattainable if they are taken to be the yields from the
best quality irrigated land in one case and the best
quality unirrigated land in the other. the companytention
therefore that the schedule has been framed mala fide in the
sense mentioned above must fail as the petitioners have
failed to establish that. but this in our opinion does number
end the matter and we shall number proceed further to deal with
other aspects which have been urged before us. rule 31  2  provides for the criterion for deciding whether
the farm is efficiently managed etc. and has created three
classes of farms namely a b and c depending upon. the
marks awarded 80 per centum or more in the case of class a
60 per centum or more but below 80 per centum for class b
and below 60 per centum for class c. it is further provided
that an a class farm shall be deemed to be efficiently
managed while 50 per centum of the area under a farm of
class b shall subject to the choice of the landowner be
deemed to be efficiently managed but farm of class c shall
number be companysidered efficiently managed. number the companytention
on behalf of the petitioners is that this division into
three classes is beyond the purview of s. 32 k and is
therefore ultra vires. section 32 k as we haye already
indicated lays down
that provisions of s. 32a shall number apply to efficiently
managed farms etc. so that when the companymission companysiders the
question whether a particular farm is efficiently managed
under s. 32 k it has only to decide one of two things
namely whether the farm is efficiently managed etc. or is
number efficiently managed. if it is efficiently managed the
provisions of s. 32 a shall number apply to the entire farm if
on the other hand it is number efficiently managed the
provisions of s. 32 a will apply to the entire farm. there
is numberscope in s. 32 k for the creation of three classes of
farms as has been done by el.  2  of r. 31. in other words
there is numberscope for the creation of class b farms in the
rule on the terms of s. 32 k. the rule therefore insofar as
it creates an intermediate class of farms half the area of
which is deemed to be efficiently managed is clearly beyond
the provisions of s. 32 k  1   iv . the creation of
class b farms of r. 31  2  being beyond the provisions of a.

k must beheld to be ultra vires that sections. the
question then arises whether in view of the creation of
class b farms by r. 31 the whole of that rule-must go. we
are of opinion that the creation of class b farms is so
integrated with the whole of r. 31 that it would number be
possible to excise class b farms only from that rule and
leave the rest of the unaffected. it is impossible to say
what the form of r. 31 would have been if the rulemaking
authority thought it companyld number provide for class b farms. we are therefore of opinion that the whole of r. 31 along
with schedules b and c must fall as soon as it is held that
the creation of class b farms under the rule is beyond the
rulemaking power. this is one ground on which r. 31 must be
struck down as ultra vires of the provisions of the act
particularly is. 32 k.
then companyes r. 31  3  which provides that the classification
made under r. 31  2  shall be
revised by government annually in the months of january and
february. the attack on this provision its two-fold. in
the first place it is companytended that r. 31  3  leaves the
revision of classification of farms entirely to government-
at any rate there is numberhing in r. 31 to suggest that the
government is bound to companysult the companymission before
revising the classification of farms. secondly it is urged
that there is numberhing in a. 32 k or any other provisions of
the act to suggest that once a farm is taken out of the
provisions of s. 32 a by the application of a. 32 k that
exemption is open to revision thereafter. we are of opinion
that there is force in the second companytention though number in
the first. section 32 p  4  and  5  lay down that the state
government will be advised by the companymission with regard to
exemption under s. 32k and the advice of the companymission
would-be binding on the state government. rule
31  3  as it stands does number however provide for advice by
the companymission thereunder. it is also number clear whether the
commission under s. 32 is a permanent companymission. it is
however urged on behalf of the state that r. 31  3  must be
read subject to the act and therefore if the act requires
that the companymission must be companysulted in the matter of
exemption the government will be bound to companysult the
commission even when it proceeds to revise the
classification under r. 31  3 . we accept this submission
on behalf of the state and hold that though r. 31  3  does
number specifically provide for companysultation with the
commission at the time of revision that rule must be read
subject to s. 32 p  4  and even at the time of revision the
government is bound to take the advice of the companymission and
is bound to act accordingly. the other companytention however appears to have force. section
32 k lays down that the provisions of 32 a will number apply
to efficiently
managed farms etc. once therefore it is hold that a farm
comes within s. 32 k  1   iv  the provisions of a. 32 a
relating to ceiling will number apply to it. there is numberhing
in chap. iv-a to suggest. that once an efficiently
managed farm is taken out of the provisions of s. 32 a on
the advice of the companymission it can be subjected again to
those provisions. number have we found any. thing in the act
which gives power to the state government to subject a farm
to which a. 32 a does number apply in view of s. 32 k to the
provision of a. 32 a later. we realise that it may be
possible for a farm which was efficiently managed when the
act came into force in 1956 to be so mismanaged later that
it numberlonger remains an efficiently managed farm within the
meaning of s. 32 k  1   iv  and it does seem reasonable in
those circumstances that the provisions of s. 32 a should
apply later to such a mismanaged farm. but that in our
opinion has number been provided in the act itself. once the
farm as it was on october 30 1956 gets the benefit of a. 32
k  1   iv  such a provision in our opinion cannumber be made by
a rule for in that case the rule would be going beyond the
purview of the act and would be ultra vires. that is
anumberher reason why r. 31  3  must be struck down as ultra
vires of the act. besides the on attack on sch. c based on fixing
unattainable standars mala fide the schedule is further
attacked on the ground that it goes beyond the intention
behind s. 32 k  1   iv  inasmuch as it provides for a
mathematical formula irrespective of various other
considerations which have a great play in the matter of
yield. we have already pointed out that sch. c only
provides for two classes of lands namely irrigated and
unirrigated. further the proviso to r. 31.  4   b  lays
down that in allotting marks for yields the companymission
shall
apply the standard yields given in sch.c. this means that if
the yield of a particular farm of irrigated land is for
example 15 maunds of wheat per acre the companymission would
be bound under the proviso to give 80 per centum of the
marks provided for yields in sch. b i.e. the companymission
will have to award 250 out of 500 marks to a such a farm. number if land whether irrigated or unirrigated was of one
quality and if there were numberother factors to be taken into
consideration in judging the yield in a particular area the
application of a mathematical formula would have been
justified. but there is numberdoubt that irrigated and
unirrigated lands are number all of the same quality and that
quality of land does affect production. there are other
factors also to which we shall later refer which have to be
taken into account in companysidering the yield but those
factors have all been ignumbered in sch.c. turning to the
quality of land we find from sch.a to the rules which has
been framed with respect to r. 5 for companyversion of ordinary
acres into standard acres that there are eight qualities of
land in the state. of which five are under the head
irrigated  namely chahi chahi-nehri nehri perennial
nehri number-perennial and abi  and three under the head
unirrigated  namely sailabibarani and bhud . the higest
quality. is nehri perennial and it is marked as 100 meaning
thereby that one ordinary acre of nehri perennial is equal
to one standard acre. the lowest quality of irrigated land
is nehri number-perennial which is marked as 75 meaning
thereby that four ordinary acres of nehri number-perennial are
equal to three standard acres. this means that the yield of
the lowest quality of irrigated land would be 25 per centum
less than the best irrigated land. number if the standards
fixed in soh. c are with reference to the beat land the
best irrigated land is expected to produce 30 maunds minus
20 per centum i.e. 24 maunds. the lowest quality of irrigated land will be expected to
produce 22-1/2 maunds  i.e. 75 per centum of the best land
minus 20 per centum equal to 18 maunds. this shows that
unless some account is taken of the quality of land sch.c
is bound to work harshly on those farms where the quality of
the irrigated land is of the lowest type. it may be said
however that sch. c is based on averages. even if that is
so there is bound to be inequality where all the irrigated
land of the farm is of the lowest quality. the same applies
to unirrigated land. the beat unirrigated land is sailabi
which has 62 per centum yield as companypared to the nehri
perennial meaning thereby that roughly 10 acres of sailabi
land are equal to six standard acres. barani land is rated
at 50 per centum of the best and thus two acres of barani
land will be equal to one standard acre. bhud is the worst
and rated at 25 per centum and four acres of bhud are equal
to one standard acre. thus if the valuation given in sch. a. is accepted bhud is only half as productive as barani
and two-fifths as productive as sailabi. therefore when
sch.c fixes one standard for unirrigated land without regard
to quality it is bound to work inequality between farms and
farms. it has been urged on behalf of the state that the
commission would be entitled to take into account these
differences in quality. there is however numberhing in r. 31
which permits the companymission to take into account this
difference in the quality of land. the proviso to r. 31  1
 b  definitely lays bown that in allotting marks the
commission shall apply the standard yield given in sch. c
so that the companymission is bound to apply those yields in
every case and there is numberhing in r. 31 which permits the
commission to take into account the difference in quality of
land. number when s. 32 k  1  iv  read with a. 32p provided
for the appointment of a companymission to advise on the
question of exemption under
a. 32 k  2   iv  the intention of the legislature obvi-
ously was that the companymission will take into account all
factors which should be properly taken into account in
giving its advice. quality of land is one such factor which
should be properly taken into account by the companymission but
as the proviso to r.31 4  stands the companymission is bound to
apply sch. c on a mathematical basis without companysideration
of other factors. we are therefore of opinion that the
proviso to r. 31  4   b  inasmuch as it obliges the
commission to apply sch. c on a mathematical basis goes
beyond the provisions of a. 32 k. it was certainly suggested
in argument before us that it would be open to the
commission to take into account the difference in the
quality of land. but there is numberhing in the reply of the
state to suggest this and we cannumber accept what is suggested
to us in argument in the face of the proviso to r. 31  4
 b . the proviso therefore must be struck down as going
beyond the rule making power inasmuch as it is ultra vires
the provisions of s. 32 k  1   iv . there are other factors which govern the yield of land and
these also have number been taken into account in r. 31. these
factors may be grouped under the head natural calamities
as for example posts locusts excessive rain floods and
drought. there is numberhing in r. 31 which gives a discretion
to the companymission when applying the proviso to r. 31  4   b
to to take into account these factorsobviously the
intention behind the provision in s.32 k 1   iv  was that in
evaluating whether a farm was efficiently managed the
commission will take all these factors which properly
require companysideration in the matter of yield into account
it was however suggests that the companymission was entitled to
take these factors into account when judging the matter of
yields but we find numberhing in the reply of the
state government to this effect and in any case if the
proviso to r. 31  4   b  is interpreted as it stands it may
number be possible for the companymission to take these factors
into account when advising the state government under s. 32
k  1   iv . it is number even clear which year before october
30 1956 the companymission will take into account in advising
the government whether a particular farm is entitled to the
benefit of a. 32 k  1   iv . if for example the base year
is one immediately preceding october 30 1956 and if in
that year there was some natural calamity the companymission
cannumber take that into account and must apply sch. c as the
proviso to r. 31 4   b  seems to intend. the intention of
the legislature therefore behind s. 32 k  1   iv  would be
subverted because of this proviso. that is anumberher reason
why this proviso should be struck down as going beyond the
intention of the legislature in b. 32 k  1   iv . lastly there is anumberher factor which is also very relevant
in the matter of yields namely the rotation of crops which
requiresall good farmers to leave some part of their lands
follow by turns for a whole year in order that the fertility
of the soil can be preserved. again there is numberhing in the
proviso which allows the companymission to take into account
this factor and make calculations only on the actual area of
a farm which is cultivated and leave out of account such
reasonable area as may number be cultivated in order to
preserve the fertility or land on the principle of rotation
of crops. as the proviso stands the companymission is to apply
sch. c over the entire area of the farm with. out taking
into account the factor of rotation of crops which
necessitates that some reasonable portion of the land must
be left fallow for the whole year in order to preserve the
fertility of the soil. here again it is urged on behalf of
the state in argument that the companymission can do so. but
again that is number to be found in the reply of the state and
as the proviso stands it obliges the companymission to apply
sch. c to the entire area of a farm in order to judge
whether it is an efficiently managed farm. this is
therefore anumberher reason why the proviso goes beyond the
intention of the legislature companytained in s. 42 k  1   iv .


criminal appellate jurisdiction criminal appeal number 76 of
1968.
appeal by special leave from the judgment and order dated
february 8 1968 of the mysore high companyrt in criminal appeal
number 215 of 1966.

m. tarkunde r. jethamalani n. h. hingorani and k
hingorani for the appellant. p. nayar for the respondent. the judgment of the companyrt was delivered by
dua j. this appeal by special leave is directed against the
judgment and order of the mysore high companyrt on appeal
setting aside in part the order of the appellants acquittal
by a second class magistrate and companyvicting him under r.
126p 2  of the defence of india rules as amended in 1963-
hereafter called the rules-and sentencing him to rigorous
imprisonment for six months. the order of the trial companyrt
acquitting him of the offence under s. 135 of the customs
act was upheld. the appellant alighted from a service plane at h.a.l. aero-
drome bangalore on numberember 16 1963 at about 12.45 in the
afternumbern. e. r. fariman inspector c.i.d. had prior
incriminating information about the arrival of a person
whose description seemed to tally with that of the
appellant. the inspector and has staff who were on the look
out waited for the appellant to take his baggage from the
baggage companynter. as soon as the appellant took delivery of
a plastic bag and a hold-all the inspector asked the
appellant to accompany him to the security room. on being
questioned the appellant gave his name as tara chand though
he admitted that he had travelled under the name of j. d.
shaw. in the security room in the presence of panchwatdars
the plastic bag and the hold-all were opened and examined. from a pillow taken out of the hold-all were found two tape
bags companytaining 16 pieces of gold with foreign markings. these tape bags had been put into the pillow which was then
stitched. the appellant was then produced by the inspector
before his d. s. p. along with the articles seized- from
him. after obtaining sanction from the companylector under s.
137 1  of the
customs act and under r. 126q of the rules shri rasool
superintendent of central excise  p.w. 3  filed the
complaint. the learned magistrate trying the appellant found the. gold
pieces to be of foreign origin. he however did number find
any evidence establishing them to be smuggled with the
result that the appellant was acquitted of the offence under
s. 135 of the customs act. the learned magistrate did number
draw any presumption against the appellant because the
seizure of the gold pieces was number by the customs
authorities but by the police who thereafter handed over the
gold pieces to the office of the companylector of central excise
and customs. while companysidering the case against the appellant under r.
126p 2  of the rules the learned magistrate observed that
according to the relevant numberification issued by the
government of india on numberember 5 1963 in modification of
the earlier one issued under r. 126j read with r. 126x of
the rules it is either the assistant companylector of central
excise or the companylector of central excise who can institute
prosecution. these officers are number authorised to delegate
the power to institute prosecution. according to the
learned magistrate the companylector of excise had therefore
numberpower to delegate the right to institute prosecutions
with which healone had been clothed. exhibit p/5 was in
the circumstancesconsidered to be ineffective. on this
reasoning the companyplainthaving number been filed by the
officer companypetently authorised the appellant was acquitted. on appeal by the superintendent of central excise and
customs  the companyplainant in the case  the high companyrt
disagreed with the view taken by the learned magistrate. it
may be pointed out that the appeal by the companyplainant was
confined only to the acquittal under r. 126p 2  of the rules
and the appellants acquittal under s. 135 of the customs
act was number questioned it being companyceded that there was no
evidence on the record to bring the appellants case under
s. 135 of the customs act. the high companyrt relying on ex. p/5 and the two numberifications
issued by the government of india came to the companyclusion
that the companylector was lawfully empowered to authorise the
superintendent of central excise to prosecute the appellant. that companyrt also arrived at the companyclusion that
theappellant who was number a dealer or refiner having a
licence was found in possession of gold of which no
declaration had been made under the law and therefore he
was guilty of an offence punishable under r. 126p 2  of the
rules. the appeal was accordingly allowed and the appellant
convicted and sentenced to rigorous imprisonment for six
months. in this companyrt shri tarkunde assailed the legality of the
view taken by the high companyrt. according to him the trial
court had rightly held the prosecution number to have been
instituted by a duly authorised person. let us see if the
scheme of the relevant statutory provisions supports the
learned companynsel. part xii-a of the rules deals with gold companytrol and it company-
tains rules 126a to 126z. this part was inserted in the
defence of india rules in january 1963. rule 126q provides

numberprosecution for any offence punishable
under this part shall be instituted against
any person except by or with the companysent of
the administrator or any person authorised by
the administrator in this behalf. numberhing in rule 154 shall apply to any
contravention of any provision of this part or
any order made thereunder. the word administrator was substituted for
the word board in september 1963. we are
informed that numberadministrator as defined in
r. 126a a  was appointed by the central
government under power companyferred on it by r.
126j 1 . under r. 126x the central government
is empowered to perform all or any of the
functions of the administrator and also by
numberification to exercise all or any of the
powers companyferred on the administrator by part
xii-a if companysidered necessary or expedient in
the public interest to do so. the
administrator who is to take suitable measures
 a  to discourage the use and companysumption of
gold  b  to bring about companyditions tending to
reduce the demand for gold and  c  to advise
the central government on all matters relating
to gold is enjoined by r. 126j 3  to
discharge his functions subject to the general
control and directions of the central
government. sub-rules 4 and 5 of r. 126j
provide

the administrator may by general or
special order authorise such person as he
thinks fit to exercise all or any of the
powers exercisable by him under this part and
different persons may be authorised to
exercise different powers
provided that numberofficer below the rank of
collector of customs or central excise or
collector of a district shall be authorised to
hear appeals under sub-rule  3  of rule 126-m.

subject to any general or special
direction given or companydition attached by the
administrator any
person authorised by the administrator to
exercise any powers may exercise these powers
in the same manner and with the same effect as
if they had been companyfered on that person
directly by this part and number by way of
authorization. we may bear in mind the effect of sub-rule  5
on the scheme. rule 126h 2   d  dealing with
restrictions on possession and sale of gold by
persons other than licensed holders lays down

save as otherwise provided in this part-
 d  numberperson other than a dealer licensed
under this part shall buy or otherwise acquire
or agree to buy or otherwise acquire gold
number being ornament except

by succession intestate or
testamentary or

in accordance with a permit granted by the
administrator or in accordance with such
authorisation as the administrator may by
general or special order make in this behalf
provided that a refiner may buy or accept gold
from a dealer licensed under this part
turning number to the two numberifications on the companystruction of
which the fate of this case depends we find that on january
10 1963 the central government issued a numberification in
exercise of the powers companyfered on it by r. 126x read with
r. 126j 4  authorising certain officers of the central
excise department to exercise any or all of the powers of
the gold board in relation to certain matters specified
therein. at sl. number 10 of the table companytained in the
numberification officers number inferior in rank to the assistant
collector were authorised to exercise powers and functions
in relation to the matter of according of sanctions for the
prosecution of offences with reference to r. 126q. we have
reproduced the exact words of the entry in company.  4  of the
table. this numberification was amended in certain respects on
numberember 5 1963. at sl. number 10 of the amended table
officers number inferior in rank to the assistant companylector of
central excise department were authorised to exercise the
powers and functions in relation to the matter of
institution. of prosecution for any offence punishable
under part xii-a of the defence of india
rules with reference to r. 1260. here again we have
reprocessed the exact words used. according to shri tarkunde these numberifications did number em-
power the assistant companylector to authorise the
superintendent of central excise and customs to institute
the present proceedings. the assistant companylector said the
counsel was authorised only himself to institute them and
he companyld number lawfully accord companysent for the institution of
prosecution as he purported to do under et. p/5. we are
unable to accept this submission. the actual wording of the
relevant entries in all the companyumns of serial number 10 in the
table of the later numberification may here be reproduced. assistant companylector of the central excise department. 126q
institution of prosecution for any offence punishable under
part xiia of the defence of india rules 1962.
this has to be read along with the opening part of the
earlier numberification dated january 10 1963 which remains
the principal numberification and was amended only in certain
particulars on numberember 5 1963. according to the opening
part of the principal numberification the officers number inferior
in rank to the officer specified in company. 2 of its table were
authorised to exercise any or all of the powers of the gold
board in relation to the matters specified in the
corresponding entries in companys. 3 and 4. in place of gold
board we have to read the word administrator and since no
administrator was ever appointed the powers and functions
entrusted to him were at the relevant time being exercised
by the central government. we may point out that it was
apparently by oversight that the word administrator was
number substituted for the expression gold board in the numberi-
fication though in september 1963 such substitution had been
effected by appropriate amendment in the relevant rules. this was number companytroverted at the bar and indeed numberpoint was
sought to be made on this ground. it would thus be seen
that in determining the scope and extent of the powers of
the officers authorised in the table of the numberification to
exercise the powers and functions of the administrator
actually exercised by the central government  there being no
administrator appointed under the rules  we have to see the
nature of the power and function mentioned in company. 4 and
examine it by reference to the rule mentioned in company. 3 in
the light of the expression in relation to the matters
specified in the numberification which in our opinion to
some extent widens the scope of the powers and functions de-
legated by the numberification. 16-l694 supci/71
under r. 126q as read in the light of the entries at serial
number 10 of the numberification prosecution for an offence
punishable under part xii-a can in our opinion be
instituted by or with the companysent of an officer number
inferior in rank to the assistant companylector of the central
excise department. in ex. p/5 dated september 4 1964 shri

parthasarathy companylector of central excise accorded his
sanction to the prosecution of the appellant as required
under r. 1260 of the defence of india rules. he did so in
exercise of the powers companyferred on him by the two
numberifications mentioned above. the offence for which the
consent was given was described in this document as under
whereas shri tarachand s o deviraj  devi-
chand  room number 4 mistry bungalow duncan
road bombay-4was found to have acquired gold
number being ornamentexcept by succession
intestate or testamentary or in accordancewith
the permit granted either by the
administrator or by the deputy secretary in
the office of the gold companytrol administrator
bombay duly authorised in this behalf by the
government of india vide their numberification
number f. 1/8/63-gc dated 20-10-1963 16 pieces
of gold of 10 tolas each bearing markings as
to its origin and purity companytrary to the pro-
visions of rule 126h d  of the defence of
india amendment rules. whereas any person having in his possession or
in his companytrol any quantity of gold or buy or
otherwise acquires or accepts gold in
contravention of any provisions of part xii-a
of the defence of india rules renders himself
liable for punishment under rule 126p 2 . and on careful study of the material placed
before me and satisfying myself that the said
shri tarachand is liable to action under rule
126p 2  of the defence of india amendment
rules 1963 for reasons mentioned above i. v.
parthasarathy companylector of central excise
mysore companylectorate bangalore in exercise of
the powers companyferred on me by the government
of india in their numberification f. number 25/1/63-
gcr dated 5-11-63 issued under rule 126j read
with rule 126-x of the defence of india
amendment rules do hereby accord companysent for
the institution of prosecution of the said
shri tarachand as required under rule 126-q of
the defence of india amendment rules 1963.
this authority in our opinion quite clearly falls within
the numberification read as a whole and the high companyrt was
right in so companystruing it. the submission that these numberifications must be companystrued
strictly because by these instruments the authority to
prosecute is delegated and so companystrued they should be held
to companyfer power only to prosecute but number to accord companysent
to the apperants prosecution by some other person or
authority has number impressed us. the attempt by the
appellants learned companynsel in this companynection to equate
these numberification with powers of attorney does number carry
the matter any further. the plain reading of the relevant
entries in the numberifications leaves numberdoubt in our mind as
to its meaning scope and effect. it quite clearly
authorises the companylector to exercise power and function in
relation to the matter of institution of prosecution for any
offence punishable under part xii-a of the rules referred to
in r. 126q. keeping in view the multifarious activities of
the higher officers of the central excise department it
seems to us that after the responsible officers of this
department number inferior in rank to the assistant companylector
had applied their mind and companye to a decision as to the
desirability of starting the prosecution in a given case
further steps in the matter of actual prosecution including
the drafting and presentation of the companyplaint can be
lawfully carried out by others that this is the real object
and purpose of the numberifications is clearly brought out on
plain reading of their language. to hold otherwise as
desired by 5hri tarkunde would number only mean unduly
straining the unambiguous statutory language but would also
tend to thwart instead of effectuating their real purpose. we are thus in agreement with the view taken by the high
court. the companynsel next submitted that the charge levelled against
the appellant was different from the one for which he has
been companyvicted. in any event the charge framed according
to the companynsel was vague and it has caused him prejudice in
his defence. here again we are unable to agree. in the
complaint all the relevant facts were stated quite clearly
and it was emphasised that the appellant had been found in
possession of 16 pieces of gold with foreign markings
ingeniously companycealed inside long tabular pouches in turn
hidden inside a pillow case. he was stated to be guilty
inter alia of offences punishable under r. 126p 2 . the
second charge framed by the companyrt was as follows
that you on or about the 16th numberember 1963
at about 12.45 hours at h.a.l. aerodrome
bangalore alighted from the plane number 105
which arrived from bomay and when you and your
articles were searched
17-l694 sup ci/71
you were found in possession of 16 pieces of
gold each bearing markings as to its foreign
origin and purity weighing 10 tolas each
having illegally imported into india in
contravention of prohibition imposed by the
ministry of finance numberification number 1211
f1/48 dated 25th august 1948 and without
permit issued by the gold companytrol authorities
as required under rule 126h d  under the
defence of india amendment rules 1963 and
thereby companymitted an offence under rule
126p 2  r w 1261 10  of the defence of india
amendment rules 1963 relating to gold
control and within my companynizance. the appellant never companyplained that this charge was vague or
outside the companyplaint. indeed in his statement in companyrt the
appellant has admitted all the relevant facts alleged by the
prosecution. the facts alleged and proved clearly bring the
appellants case within the mischief of rr. 126h 2   d  and
126p 2 . rule 126h 2   d  has already been reproduced
earlier. under r. 126p 2   ii  whoever has in his
possession or under his companytrol any quantity of gold in
contravention of any provision of part xii-a is punishable
with imprisonment for a term of number less than six months and
number more than two years and also with fine. all the
relevant salient facts alleged by the prosecution having
been admitted by the appellant there can hardly be any ques-
tion of prejudice having been caused to him by the wide
language of the companyplaint and the charge assuming the
language to be wde. this argument is accordingly repelled. lastly the companynsel companytended that the sentence imposed
was two severe. the entire gold seized from him having been
confiscated the sentence undergone should according to the
submission be held to serve the cause of justice. we have
already numbericed that under r. 126p 2   ii  the minimum
period of imprisonment prescribed is six months.


civil appellate jurisdiction civil appeal number 124 of 1959.
appeal by special leave from the award dated february 8
1957 of the additional industrial tribunal delhi in misc. d. case number 422 of 1956.
jawala prasad chopra and j. k. haranandani for the
appellants. k. daphtary solicitor-general of india h. j. umrigar

k. ramamurthi v. a. seyid muhamad and m. r. krishna
pillai for the respondent. 1960. march 22. the judgment of the companyrt was delivered by
gajendragadkar j.-this appeal by special leave is directed
against the order passed by the additional industrial
tribunal delhi directing the appellant m s. new india
motors private limited to reinstate its former employee k. t.
morris the respondent in his original post as field
service representative and to pay him his back wages from
the date of his dismissal till the date of his
reinstatement. this award has been made on a companyplaint
filed by the respondent against the appellant under s. 33a
of the industrial disputes act xiv of 1947  hereinafter
called the act . it appears that before joining the
appellant the respondent was working with a firm in
calcutta prior to that he was field service representative
of m s. premier automobiles limited bombay. the respondent
joined the services of the appellant sometime in may 1954 as
works manager. before he joined the services of the
appellant he had been told by the appellant by its letter
dated march 27 1954 that the appellant would be willing to
pay him rs. 350 per month and something more by way of
certain percentage on business. he was however asked to
interview the
appellant an interview followed and the respondent was
given a letter of appointment on may 6 1954. by this
letter he was appointed as workshop manager in the
appellants firm on three months probation subject to the
terms and companyditions specified in the letter of appointment
 ex. w-2 . the respondent companytinued in this post till
february 28 1955 when he was given the assignment of the
appellants field service organiser with effect from march
1 1955. a letter of appointment given to him on 28-2- 1955
set forth the terms and companyditions of his new assignment. it appears that on april 18 1956 the management of the
appellant called for an explanation of the respondent in
respect of several companyplaints. an explanation was given by
the respondent. it was however followed by anumberher
communication from the appellant to the respondent setting
forth specific instances of the respondents companyduct for
which explanation was demanded. the respondent again
explained and disputed the companyrectness of the charges. on
june 30 1956 the respondents services were terminated on
the ground that the appellant had decided to abolish the
post of field service representative. it is this order
which gave rise to the respondents companyplaint under s. 33a
of the act. the companyplaint was filed on july 18 1956. the
respondent invoked s. 33a because his case was that at the
time when his services were terminated an industrial dispute
was pending between the appellant and 7 of its employees and
the respondent was one of the workmen companycerned in the said
industrial dispute. the said industrial dispute had
reference to the termination of the services of the said 7
employees who were working with the appellant as
apprentices. on their behalf it was alleged that their
termination of service was improper and illegal and that was
referred to the industrial tribunal for its adjudication on
august 20 1955. the said dispute was finally decided on
january 2 1957. with the merits of the said dispute or the
decision thereof we are number companycerned in the present appeal. according to the respondent since he was a workman
concerned in the said dispute s. 33 1  a  applied and it was
number open to the appellant to terminate his
services save with the express permission in writing of the
authority before which the said dispute was pending. it was
on this basis that he made his companyplaint under s. 33a of the
act. before the tribunal the appellant urged that the respondent
was number a workman as defined by the act and on the merits
it was companytended that the appellant had to abolish the post
of the field service organiser owing to the fact that a part
of the agency work of the appellant had been lost to it. on
the other hand the respondent companytended that he was a
workman under the act and the plea made by the appellant
about the necessity to abolish his post was number true and
genuine. his grievance was that his services were
terminated solely because he had taken interest in the
complaint of the 7 apprentices which had given rise to the
main industrial dispute and had in fact given evidence in
the said dispute on behalf of the said apprentices. the
tribunal has found that the respondent is a workman under
the act that there was numberevidence to justify the
appellants companytention that it had become necessary for it
to abolish the respondents post and that it did appear
that the respondent had been discharged because the
appellant disapproved of the respondents companyduct in
supporting the 7 apprentices in the main industrial dispute. as a result of these findings the tribunal has ordered the
appellant to reinstate the respondent. the question as to whether the respondent is a workman as
defined by s. 2 s  of the act is a question of fact and the
finding recorded by the tribunal on the said question after
considering the relevant evidence adduced by the parties
cannumber be successfully challenged before us in the present
appeal. the respondent has given evidence as to the nature
of the work he was required to do as field service
organiser. the letter of appointment issued to him in that
behalf expressly required inter alia that the respondent
had if need be to check up and carry out necessary
adjustments and repairs of the vehicles sold by the
appellant to its customers and to obtain signatures of
responsible persons on the satisfaction
forms which had been provided to him. the respondent swore
that he looked after the working of the workshop and
assisted the mechanics and others in their jobs. he
attended to companyplicated work himself and made the workmen
acquainted with millers special tools and equipment needed
for repairs and servicing of cars. he denied the suggestion
that he was a member of the supervisory staff. on this
evidence the tribunal has based its finding that the
respondent was a workman under s. 2 s  and we see numberreason
to interfere with it. then as to the appellants case that it had to abolish the
post of the respondent as it had lost the agency of desoto
cars from premier automobiles there is numberreliable evidence
to show when this agency was actually lost. besides the
fact that the appellant has appointed a technical supervisor
after discharging the respondent is also number without
significance. furthermore the appellant is still the agent
for plymouth and jeeps and the tribunal is right when it has
found that it still needed a field representative to look
after servicing of sold cars at outside stations. on the
other hand the evidence of the respondent clearly shows
that he supported the case of the 7 apprentices and that
provoked the appellant to take the step of terminating his
services. the process of finding fault with his work
appears to have companymenced after the appellant disapproved of
the respondents companyduct in that behalf. we are therefore
satisfied that the tribunal was right in companying to the
conclusion that the dismissal of the respondent is number sup-
ported on any reasonable ground and in fact is due to the
appellants indignation at the companyduct of the respondent in
the main industrial dispute between the appellant and its 7
employees. if that be the true position the industrial
tribunal was justified in treating the dismissal of the
respondent as mala fide. it has however been urged before us by the appellant that
the companyplaint made by the respondent under s. 33a is number
competent. it is companymon ground that a companyplaint can be made
under s. 33a only if s. 33 has been companytravened and so the
appellants argument is that b. 33 1  a  is inapplicable
because the respondent
was number a workman companycerned in the main industrial dispute
and as such his dismissal cannumber be said to companytravene the
provisions of the said section. indeed the principal point
urged before us by the appellant is in regard to the
construction of s. 33 1  a  of the act. was the respondent
a workman companycerned with the main industrial dispute ? that
is the point of law raised for our decision and its decision
depends upon the companystruction of the relevant words used in
s. 33 1  a . section 33 1  a  as it stood prior to the amendment of 1956
provided inter alia that during the pendency of any
proceedings before a tribunal numberemployer shall alter to
the prejudice of the workmen companycerned in the said dispute
the companyditions of service applicable to them immediately
before the companymencement of the said proceedings save with
the express permission in writing of the tribunal. section
33 has been modified from time to time and its scope has
been finally limited by the amendment made by act 36 of
1956. with the said amendments we are however number company-
cerned. the expression the workmen companycerned in such
dispute which occurred in the earlier section has number been
modified and the companystruction which we would place upon the
said expression under the unamended section would govern the
construction of the said expression even in the amended
section. what does the expression workmen companycerned in
such dispute mean ? the appellant companytends that the main
dispute was in regard to the discharge of 7 apprentices
employed by the appellant and it is only the said 7
apprentices who were companycerned in the said dispute. the
respondent was number companycerned in the said dispute and so the
termination of his services cannumber attract the provisions of
s. 33 1  a . prima facie the argument that workmen
concerned in such dispute should be limited to the workmen
directly or actually companycerned in such dispute appears
plausible but if we examine the scheme of the act and the
effect of its material and relevant provisions this limited
construction of the clause in question cannumber be accepted
let us first companysider the definition of the industrial
dispute prescribed by s. 2 k . it means inter alia any
dispute or difference between employers and workmen which is
connected with the employment or number-employment or the
terms of employment or with the companyditions of labour of
any person. it is well settled that before any dispute
between the employer and his employee or employees can be
said to be an industrial dispute under the act it must be
sponsored by a number of workmen or by a union representing
them. it is number necessary that the number of workmen of the
union that sponsors the dispute should represent the
majority of workmen. even so an individual dispute cannumber
become an industrial dispute at the instance of the
aggrieved individual himself it must be a dispute between
the employer on the one hand and his employees acting
collectively on the other. this essential nature of an
industrial dispute must be borne in mind in interpreting the
material clause in s. 33 1  a . section 18 of the act is also relevant for this purpose. it
deals with persons on whom awards are binding. section
18 3  provides inter alia that an award of a tribunal
which has become enforceable shall be binding on  a  all
parties to the industrial dispute  b  all other parties
summoned to appear in the proceedings as parties to the
dispute unless the tribunal records the opinion that they
were so summoned without proper cause and  c  where a party
referred to in cl.  a  or cl.  b  is companyposed of workmen all
persons who were employed in the establishment or part of
the establishment as the case may be to which the dispute
relates on the date of the dispute and all persons who
subsequently become employed in that establishment or part. it is thus clear that the award passed in an industrial
dispute raised even by a minumberity union binds number only the
parties to the dispute but all employees in the
establishment or part of the establishment as the case may
be at the date of the dispute and even those who may join
the establishment or part subsequently. thus the circle of
persons bound by the award is very much wider than the
parties to the industrial dispute. this aspect of the
matter is also relevant in companystruing the material words in
s. 33 1  a . in this companynection the object of s. 33 must also be borne in
mind. it is plain that by enacting s. 33 the legislature
wanted to ensure a fair and satisfactory enquiry of the
industrial dispute undisturbed by any action on the part of
the employer or the employee which would create fresh cause
for disharmony between them. during the pendency of an
industrial dispute status quo should be maintained and no
further element of discord should be introduced. that
being the object of s. 33 the narrow companystruction of the
material words used in s. 33 1  a  would tend to defeat the
said object. if it is held that the workmen companycerned in
the dispute are only those who are directly or immediately
concerned with the dispute it would leave liberty to the
employer to alter the terms and companyditions of the remaining
workmen and that would inevitably introduce further
complications which it is intended to avoid. similarly it
would leave liberty to the other employees to raise disputes
and that again is number desirable. that is why the main
object underlying s. 33 is inconsistent with the narrow
construction sought to be placed by the appellant on the
material words used in s. 33 1  a . even as a matter of companystruction pure and simple there is no
justification for assuming that the workmen companycerned in
such disputes must be workmen directly or immediately
concerned in the said disputes. we do number see any
justification for adding the further qualification of direct
or immediate companycern which the narrow companystruction
necessarily assumes. in dealing with the question as to
which workmen can be said to be companycerned in an industrial
dispute we have to bear in mind the essential companydition for
the raising of an industrial dispute itself and if an
industrial dispute can be raised only by a group of workmen
acting on their own or through their union then it would be
difficult to resist the companyclusion that all those who
sponsored the dispute are companycerned in it. as we have
already pointed out this companystruction is harmonious with the
definition prescribed by s. 2 s  and with the provisions
contained in s. 18 of the act. therefore
we are number prepared to hold that the expression workmen
concerned in such dispute can be limited only to such of
the workmen who are directly companycerned with the dispute in
question. in our opinion that expression includes all
workmen on whose behalf the dispute has been raised as well
as those who would be bound by the award which may be made
in the said dispute. it appears that the companystruction of the relevant clause had
given rise to a divergence of opinion in industrial companyrts
but it may be stated that on the whole the companysensus of
opinion appears to be in favour of the companystruction which we
are putting on the said clause. in eastern plywood
manufacturing company limited v. eastern plywood manufacturing
workers union  1  the appellate tribunal has referred to
the said companyflict of views and has. held that the narrow
construction of the clause is number justified. the high companyrt
of madras appears to have taken the same view  vide newtone
studios limited v. ethirajulu  t.r.   2   .