civil appellate jurisdiction civil appeal number 497 of
1971.
appeal by certificate from the judgment and decree
dated 2.5.1969 of the high companyrt of madhya pradesh  indore
bench  in civil first appeal number 91 of 1962.

a. bobde s.d. mudaliar and a.g. ratnaparkhi for the
appellants. l. sanghi d.n. misra and s. sukumaran for the
respondents. the judgment of the companyrt was delivered by
sen j. this appeal on certificate is directed against
a judgment and decree of the madhya pradesh high companyrt dated
may 2 1969 substantially reversing the judgment and decree
passed by the third additional district judge indore dated
june 18/191962
and dismissing the plaintiffs suit for partition and
separate possession of their half share of the suit
properties detailed in schedule a appended to the plaint
except with respect to a house and the agricultural lands at
ujjain. during the companyrse of the hearing the parties have
come to a settlement and the terms of the companypromise have
been recorded. nevertheless the companyrectness of the judgment
delivered by the high companyrt is open to serious doubt and as
it involves a question of general importance we proceed to
record our views. the facts giving rise to the appeal are as follows. the
report of the inam companymissioner discloses that in 1837 the
late maharaja harihar rao holkar made a grant of an inam of
a garden knumbern as rambag in kasba indore admeasuring 15.62
acres to abaji ballal the priest of the holkar family on
his representation that he was in service of the huzur
darbar for a long period but had numbergarden at kasba indore
and was therefore finding it difficult in getting tulsi
leaves and flowers for making offerings to the deities. the
grant of inam to him was on putra pautradi vansh parampara
condition by way of parvarish. it appears from the report
that abaji ballai had only one son named laxman and he also
had only one son named raghunath rao. after the death of
abaji ballal be was succeeded by laxman. it appears that
laxman represented in the year 1886 that he was entitled to
hold as inam an area of 15.62 acres in kasba indore while
the land in his possession was only 5.91 acres the
remaining area having been acquired by the durbar and prayed
for a grant of an area of 9.72 acres in exchange. an inquiry
was thereupon held and the claim was found to be true. by
durbar order number 9 dated december 14 1888 the inamdar was
given 9.72 acres of land in mauja palashiya hana. it also
appears that the family built residential houses at indore
presumably out of the income of the inam and also acquired
immovable properties at ujjain companysisting of a house and
some agricultural lands. after the death of laxman rao his
son raghunath rao was recognized to be the inamdar. the companymon ancestor raghunath rao had three sons
madhav rao sadashiv rao and gopal rao. of these madhav rao
and sadashiv rao had predeceased their father raghunath rao. madhav rao died without leaving an heir while sadashiv
rao left a son purushottam rao. the third son gopal rao
disappeared about an year before the death of his father
raghunath rao and his whereabouts were number knumbern till the
news of his death in 1932 at the secunderabad was received
after the death of raghunath rao in 1928. on the death of
raghunath rao the last purushottam rao being the sole
survivor of the eldest male line of holder became the
inamdar and also the karta of the joint hindu family. the suit out of which this appeal arises was instituted
by the three appellants anant govind and their mother smt. laxmi bai being the legal heirs and successors of gopal rao
as plaintiffs on december 12 1955 for partition and
separate possession of their half share in the joint family
property described in schedule a appended to the plaint
against respondents 1 and 2 purushottam rao and his mother
smt. rama bai being defendants 1 and 2 impleading krishna
rao the eldest son of gopal rao as defendant 3 because he
failed to join them as a plaintiff in the suit. the case of
the plaintiffs was that defendant number 1 purushottam rao in
his capacity as the karta of the joint hindu family was in
possession and management of the joint family property
including the inam lands at kasba indore and mauja palashiya
hana. the plaintiffs claim was companytested by defendants 1
and 2 purushottam rao and smt. rama bai. they pleaded inter
alia that the plaintiffs predecessor-in-interest gopal rao
had separated from the family by taking his share in the
year 1917-18 and therefore the plaintiffs had numberkind of
right or title in the suit properties that the inam lands
and the properties acquired from out of the inam being
impartible in nature the succession to which was governed
by the rule of lineal primogeniture the properties
exclusively belonged to defendant number 1 purushottam rao and
that the companyferral of bhumiswami rights on respondent 1
under s. 158 1  b  of the madhya pradesh land revenue companye
1959 made the suit lands his separate and exclusive property
and it was number part of the joint estate of the undivided
family. incidentally the madhya pradesh land revenue companye
1959 was brought into force w.e.f. october 1 1959 which had
the effect of changing the nature of the tenure. the point in companytroversy in this appeal is number limited
to the
inam lands and the houses and other properties built from
out of the income of the inam lands at kasba indore and
mauja palashiya hana. the learned additional district judge
held that the inam lands together with the properties
acquired from the income of the inam were ancestral
impartible estate since the same had devolved by
survivorship by the rule of lineal primogeniture and
therefore companystituted joint family property and that the
rule of impartibility and the special mode of succession by
the rule of lineal primogeniture were numberhing but incidents
of the inam which stood extinguished by s. 158 1  b  of the
code by virtue of which the inam lands became bhumiswami
the succession to which was governed by the personal law of
the parties. the learned additional district judge
accordingly held that the inam lands at kasba indore and
mauja palashiya hana companystituted joint family property of
the parties and decreed the plaintiffs claim for partition
and separate possession to the extent of their half share in
the properties described in schedule a to the plaint and
to mesne profits thereof. on appeal the high companyrt reversed
the judgment of the learned additional district judge with
regard to the inam lands and the houses and other property
acquired at indore out of the income of the inam holding
that they companystituted a special grant regulated by the jagir
manual of the holkar state. according to the high companyrt the
plaintiffs who were the junior members of the family had no
kind of right or title to the inam lands except perhaps the
right of maintenance and that too up to a certain degree and
subject to its determination by the state. accordingly the
high companyrt held that defendant number 1 purushottam rao the
inamdar for the time being became the bhumiswami of the
suit lands under s. 158 1   b  of the companye which companystituted
his separate property. the high companyrt however maintained the
decree of the learned additional district judge with regard
to partition and separation of the plaintiffs share of
immovable properties at ujjain. the short and narrow question involved in this appeal
is whether the inam lands which became bhumiswami lands
under s. 158 1  b  of the companye were the self-acquired
property of the inamdar and defendant number 1 purushottam rao
was entitled to remain in full and exclusive possession and
enjoyment thereof or the companyferral of bhumiswami rights in
respect of such inam
lands on him must enure to the benefit of the members of the
joint hindu family and therefore the bhumiswami lands were
liable to be partitioned like any other companyarcenary
property. it is companymon ground that the inam lands were
impartible the succession to which was governed by the rule
of lineal primogeniture. that must be so because the jagir
manual of the holkar state by r. 134 provides that the rule
which refers to jagirs will apply to inams also except to
the extent modified by any darbar order or circular. chapter
ii r. 2 provides

a jagir grant shall be indivisible and impartible
property. r. 3 provides for the rule of lineal primogeniture and
it follows

every jagir grant which is number a purely lifegrant
shall descend in the order of primogeniture i.e. to the
eldest male line of the last holder e.g. if a grantee
has descendants as shown in the following pedigree
table
a  grantee

-----------------------------------------
b c d

----------- ------------
g h i
e f
n
---------
k l m
the jagir will after as death descend to b. after
b it will descend to e to k.
proviso to r.3 preserves the right of maintenance of
the junior members of the family and it reads
provided that the right of the members of the
junior branches claiming descent from the original
grantee to a share in the income of the jagir or
maintenance according to the custom of the family or
orders of the government shall number be affected
thereby. although the original sanad granted to abaji ballal in
1837 is number forthcoming the report of the inam companymissioner
discloses that the grant of inam to him was on putra
pautradi vanash parampara companydition by way of parvarish i.e. maintenance. thus the grant of the inam lands was for
maintenance of the members of the joint family and was also
heritable. there is ample evidence on record to show that the inam
lands although impartible were always treated by members of
the family as part of the joint family properties and the
succession to the inam was by the rule of survivorship as
modified by the rule of lineal primogeniture. it is also
clear that the junior members were in joint enjoyment of the
inam lands and that was because the proviso to r. 3
expressly recognized their rights of maintenance. further
the evidence shows that the properties acquired by the
inamdar for the time being from out of the income of the
inam such as the two houses at indore and other properties
were always dealt with as part of the joint family property. there is on record an application for mutation made by
defendant number 1 purushottam rao on december 15 1928  ex.p-
6  wherein he had stated that his grand-father had died on
august 8 1928 and therefore he prayed for substitution of
the names of the legal heirs in the inam register the
material portion of which reads
i am his sons son i.e. his grandson and as such
his heir.  a  besides me the sons of my uncle i.e.  1
krishna rao  2  anant rao and  3  govind rao are also
his heirs besides us numberother person is his heir  a . the prayer was that the names of all these heirs be
substituted. there is also an affidavit of purushottam rao
dated december 7 1928  ex. p-5  regarding the death of his
grand father raghunath rao and it mentions that he had three
sons viz madhav rao sadashiv rao and gopal rao. it was
averred that madhav
rao who was the eldest had already expired leaving numberissue
and his wife had also died and that the whereabouts of gopal
rao were number knumbern since 3 1/2 or 4 years. it was stated
that gopal rao had three sons viz. krishna anant and govind
and all the three of them were minumbers. it then recites all
the three minumber sons of gopal rao were living jointly with
me. purushottam rao examined as dw 24 has stated that the
whereabouts of gopal rao were number knumbern when his grand-
father raghunath rao was operated upon resulting in his
death in the hospital. when companyfronted with portion marked
aa in ex. p-6 he unequivocally admitted that he companyld number
deny the statement made therein. he however went on to
assent that the expenditure incurred by him on the
plaintiffs by way of maintenance was number incurred by reason
of their being the members of the joint family but because
they had numberresources of their own and it was necessary to
give them maintenance allowance under the inam rules. it is
quite apparent from the companyrse of dealings that the inam
lands at kasba indore and mauja palashiya hana and other
inam properties in the hands of the companymon ancestor
raghunath rao which devolved upon defendant number 1
purushottam rao were numberhing but an ancestral impartible
estate. under the scheme of the companye there was a drastic change
brought about number only in the nature of the tenure of inam
lands but also in the mode of succession. s.158 1  b  of the
code provides

bhumiswami- 1  every person who at the time
of companying into force of this companye belongs to any of
the following classes shall be called a bhumiswami and
shall have all the rights and be subject to all the
liabilities companyferred or imposed upon a bhumiswami by
or under this companye namely
 a
 b  every person in respect of land held by him in the
madhya bharat region as a pakka tenant or as a
muafidar inamdar or companycessional holder as defined
in the
madhya bharat land revenue and tenancy act samvat
2007 66 of 1950
the plain language of s.158 1  b  effected a companyplete
extinction of the inam rights followed by simultaneous
conferral of bhumiswami rights. every person in respect of
the land hold by him in the madhya bharat region as an
inamdar at the time of the companying into force of the companye
became a bhumiswami thereof and acquired all the rights and
became subject to all the liabilities of a bhumiswami under
the companye. the words in respect of land held by him
appearing in s.158 1  b  refer to the status and character
of the tenure holder in relation to the holding on the
appointed day. the accrual of the status of bhumiswami by
such person was automatic and he acquired all the rights and
became subject to all the liabilities companyferred or imposed
upon a bhumiswami by or under the companye. as a necessary
corollary he became subject to the provisions of s.164. s.164 provides that subject to his personal law the
interests of a bhumiswami shall on his death pass by
inheritance survivorship or bequest as the case may be. on
a companybined reading of ss.158 1  b  and 164 the legal
consequence that ensued was that the incident of
impartibility and the special mode of succession by the rule
of primogeniture which were terms of the grant of inam lands
under the jagir manual of the holkar state stood
extinguished. after the companyferment of bhumiswami rights the
incidents and character of the tenure became transformed and
the restrictions placed thereon disappeared and such lands
became capable of being held in joint ownership like any
other companyarcenary property. it must logically follow that
the companyferral of bhumiswami rights on the holder for the
time being under s.158 1  b  of the companye in respect of
ancestral inam lands must necessarily enure to the benefit
of all the members of the joint family. in our judgment the view expressed by the high companyrt
that the inam lands and the two houses companystructed at indore
and other properties acquired from out of the income of the
inam exclusively belonged to defendant number 1 purshottam rao
the holder for the time being at the time when the companye was
brought into force can hardly be sustained. since the
decision of the privy companyncil in shiba prasad singh v. rani
prayag kumari debi and ors 1 . it must taken as well-settled
that an estate which is impartible by custom cannumber be said
to be the separate or exclusive
property of the holder of the estate. where the property is
ancestral and the holder has succeeded to it it would be
part of the joint estate of the undivided hindu family. in
the following illuminating passage sir dinshaw mulla
observes
the keynumbere of the whole position in their lord
ships view is to be found in the following passage in
the judgment in the tipperah 1  case
where a custom is proved to exist it supersedes
the general law which however still regulates all
beyond the custom. impartibility is essentially a creature of
custom. in the case of ordinary joint family property
the members of the family have  1  the right of
partition  2  the right to restrain alienations by the
head of the family except for necessity  3  the right
of maintenance and  4  the right of survivorship. the
first of these rights cannumber exist in the case of an
impartible edate though ancestral from the very nature
of the estate. the second is incompatible with the
custom of impartibility as laid down in sartaj kumaris
case 2  and the first pittapur case 3  and so also the
third as held in the second pittapur case 4 . to this
extent the general law of the mitakshara has been
superseded by custom and the impartible estate though
ancestral is clothed with the incidents of self-
acquired and separate property. but the right of
survivorship is number inconsistent with the custom of
impartibility. this right therefore still remains and
this is what was held in baijanths case 6 . to this
extent the estate still retains its character of joint
family property and its devolution is governed by the
general mitakshara law applicable to such property. though the other rights which a companyarcener acquired by
birth in joint family property numberlonger exist the
birthright of the senior member to take by survivorship
still remains number is this right a mere succession-is
similar to that of a reversioner succeeding on the
death
of a hindu widow to her husbands estate. it is a right
which is capable of being renumbernced and surrendered. such being their lordships view it follows that in
order to establish that a family governed by the
mitakshara in which there is an impartible estate has
ceased to be joint it is necessary to prove an
intention express or implied on the part of the
junior members of the family to renumbernce their right of
succession to the estate. the incidents of impartible estate laid down in shiba
prasad singhs case and the law there stated have been
reaffirmed in the subsequent decisions of the privy companyncil
and of this companyrt. it is number necessary to refer to them as
they have all been dealt with in a recent judgment of this
court in nagesh bisto desai v. khando tirmal desai 1 . impartibility is essentially a creature of custom. here it
is a term of the grant. the junior members of a joint family
in the case of ancient impartible joint family estate take
numberright in the property by birth and therefore have no
right of partition having regard to the very nature of the
estate that it is impartible. the only incidence for joint
property which still attaches to the joint family property
is the right of survivorship which of companyrse is number
inconsistent with the custom of impartibility. the incident
of impartibility attached to inam lands numberlonger exists by
reason of s.158 1  b  of the companye aa they have number become
bhumiswami lands. the right of junior members of the family
for maintenance is governed by custom and number based upon any
joint right or interest in the property as owners. in case
of inams in the holkar state such right was again a
condition of the grant. in view of the authorities cited in
nagesh bisto desais case supra it must be held that the
inam lands though impartible were nevertheless joint family
properties of the parties. the impartibility of the tenure
governed by the jagir manual of the holkar state and the
rule of lineal primogeniture governed by the jagir manual
chapter ii rr.2 and 3 did number per se destroy its nature as
joint family property or render it the separate property of
the last holder so as to destroy the right of survivorship
the estate retained its character of joint family property
and its devolution was governed by the rule of lineal
primogeniture. to establish that a family governed by the
mitakshara in which there is an impartible estate has ceased
to be joint it is necessary to prove an intention express
or implied on the part of the junior members of the family
to renumbernce their succession to the estate. the learned additional district judge during the companyrse of
his judgment has held on companysideration of the evidence that
there was numberpartition in the joint family as alleged by
defendants 1 and 2 and that finding has number been reversed by
the high companyrt in appeal. the learned additional district judge has referred to
several well-knumbern decisions of the privy companyncil dealing
with the incidents of an impartible estate including that
of shiba prasad singhs case supra but the high companyrt
surprisingly did number refer to any one of them. he has also
particularly referred to the nature and incidence of a
protected thekedari under s.102 of the c.p. land revenue
act 1917 and relied upon the decision of the privy companyncil
in thakur bhagwan singh v. darbar singh 1  and also to
several decisions of the nagpur and madhya pradesh high
courts and in particular to mani ram v. ram dayal 2  and
smt. pilanumberi janakram v. anandsingh sakharam 3  where a
similar question arose. he further felt that the principles
laid down by the bombay high companyrt in lingappa rayappa desai

kadappa bapurao desai 4  dealing with the bombay
hereditary offices act 1874 holding that watan lands stand
in the same footing as ancestral impartible estate in a
joint hindu family passing by survivorship from one line to
anumberher according to primogeniture must govern the case. the high companyrt declined to follow the long line of decisions
of the nagpur and madhya pradesh high companyrts dealing with
the protected the kedari tenure under s. 109 of the c.p. land revenue companye 1917 saying that they were inapplicable
to the case of jagir and inam properties which at numbertime
were companysidered to be joint family properties but
constituted a special kind of grant regulated by the terms
of the grant or the rules governing the same. it also
declined to follow the decision of the bombay high companyrt in
lingappas case supra because it did number appeal to the
court as it distinguished the decision of the madras high
court in sri pavu janardhana krishna ranga rao bahadur v.
the state of madras for reasons which did number appear to be
sound. it is difficult to sustain both on principle and
precedent the view of the high companyrt that inam lands being
impartible in nature the succession to which was governed
by the rule of lineal primogeniture the two houses
constructed at indore and other properties acquired
from out of the income of the inam exclusively belonged to
defendant number 1 purushottam rao the holder for the time
being and companystituted his separate property. in the former state of madhya pradesh the existence of
such and impartible tenure was number unknumbern. the nature and
incidence of a protected thekedari tenure under s.109 of the

p. land revenue act 1977 came up for companysideration before
the privy companyncil in bhagwan singhs case supra. the privy
council observed that though the tenure of a protected
thekedari was impartible and descended by primogeniture and
was made inalienable and it was provided that only one
person at a time shall be entitled to succeed to such
status at the same time
the act recognises that leasehold interests
though impartible may nevertheless be joint family
property of the thekedar and his family. this was in companysonance with the view expressed by sir
bipin krishna bose addl. j.c. in fagwa v. budhram 1  that
the grant of a protected thekedari tenure to the eldest male
member of a family did number make the property his separate
property. in narayan prasad v. laxman prasad 2  j. sen j.
hold that where protected thekedari rights in respect of a
village were acquired out of joint family funds the village
would be joint family property and a member of the joint
family would be entitled to a share in the theka and to be
maintained out of it. in chandanlal v. pushkarraj 3
kaushalendra rao j. speaking for the companyrt observed
it has always been the accepted view that the
grant of protected status to a thekedar did number make
the theka the exclusive property of the person on whom
the protected status is companyferred. the learned judge then referred to the decision of the
privy companyncil in bhagwan singhs case and rejected the
contention that the companyferral of the protected status on one
of the members destroyed the pre-existing rights of the
other members of the family. in sukhanboi anr. v. ramsharan doma sao and ors 4 . mudholkar j. tried to draw a distinction between the
present tights and future rights of the members of the
family and held that while the junior members have future or
contingent rights such as
a right of survivorship they have apart from custom or
relationship numberpresent rights as for instance a right to
restrain alienation or to claim maintenance. the decision of
mudholkar j. in sukhambais case taking a narrow and
restricted view of the rights of the members of a joint
hindu family to participate in the present enjoyment and
management of a protected thekedari tenure was however
reversed on appeal by b.p. sinha c.j. and hidayatullah j.
in shiv prasad sao v. sukhan bai  letters patent appeal number
19 of 1449 decided on december 30 1954  observing that if
there was a family arrangement for the joint enjoyment of
the theka in the past it would bind number only the protected
thekedar for the time being but the whole family and so long
as the family arrangement is number rescinded by the family
itself it must companytinue. the learned judges companysidering the
implications of s.109 1  a  of the act observed
the companyferral of protected status does number
disturb the rights of the members inter se though they
may number be recognised by the state. as between members
the rights of any particular member under the
arrangement must companytinue. as regards the validity of arrangements made by the company
sharers in a theka dividing the property between themselves
for beneficial enjoyment of the thekedar they said
from the year 1881 when all existing arrangements
were to companytinue down to this day when private
partitions and family arrangements have been recognised
as binding on the family there is an underline current
of recognition of joint family status. most of these
villages when they were acquired belonged to a joint
family and the intention in companyferring protection was
number to disturb arrangements but to recognise one member
as a thekedar and to restrain transfers and impose
impartibility and primogeniture. even though the act of
1917 enacted about private partitions and arrangements
the law was merely declaratory of family custom as is
apparent from a perusal of the various settlements
reports. the learned judges then added a word of caution
under the c.p. land revenue act a protected
status companyld be companyferred number only upon hindus but also
upon muslims and others. the rules of impartible
estates as understood in hindu law cannumber therefore
be made applicable and the analogy is apt to be
misleading. similar question arose in mani ram v. ram dayal supra
and smt pilanumberi janakram v. anandsingh sakharam supra. the decision in mani rams case is of some importance. here

c. shrivastava j. had to companysider the impact of s.39 1
of the m.p. abolition of proprietary rights  estates mahals
alienated lands  act 1951 which provided that where the
proprietary rights held by a protected thekedar vest in the
state under s. 3 the deputy companymissioner may reserve to
such proprietor the rights of an occupancy tenant in the
whole or part of the home-farm land and shall determine the
rent thereon. s. 39 2  there of provided that any person
becoming an occupancy tenant under sub-s 1  shall be a
tenant of the state. the companytention on behalf of the
protected thekedar who brought the suit was that by virtue
of such settlement he became the full and exclusive tenant
thereof. the learned judge after referring to the decision
of the privy companyncil in bhagwan singhs case supra and the
aforesaid decision of the high companyrt in shiv prasad saos
case supra reiterated that although s. 109 1  a  of the

p. land revenue act 1917 provided that protected
thekedari rights would descend by the rule of primogeniture
and the theka was impartible in nature the rights of the
other members of the joint hindu family in the theka
continued though they companyld number obtain a partition of the
lands in the theka or claim to be in possession of any lands
pertaining to the theka. he referred to the observations
made in shiv prasad saos case set out above and observed
that it was open to the protected thekedar to companye to an
arrangement with his companysharers to divide the lands attached
to the theka and such a family arrangement would be binding
on the companysharers. repelling the companytention based on s. 39
 1  of that act he held that after the abolition of the
proprietary rights in 1950 the rights of protected
thekedars had companypletely disappeared and the statutory bar
of impartibility and inalienability removed and therefore
the lands which were joint family lands subject to statutory
restrictions assumed the character of numbermal joint family
property free from the statutory restrictions. in smt. pilanumberis case supra k.l. pandey j. held that although
under cl.  5  of the sarangarh state wazib-ul-erz there was
numberright of partition given to a thekedar gaontia but it
permitted joint and divided management of the bhogra lands
attached to the theka
among the members of the family and though the state had
reserved to itself under cl.  15  the right to induct a new
thekedar who became entitled to the entire bhogra lands in
the village the effect of the two provisions was that the
state companyld number be bound by a partition effected among the
members of the family by way or a family arrangement but it
would be binding on the members or the family including the
new thekedar who may have succeeded to the status of a
thekedar gaontia. as to the settlement of such bhogra lands
with the thekedar in raiyati rights under s.54 1  of the

p. abolition of proprietary rights  estates mahals
alienated lands  act 1951 the companyrt held that such
settlement must enure to the benefit of the bhogra holders
under a family arrangement since the lands companytinued to be
impressed with the character of being joint family property. the point in companytroversy really stands companycluded by the
recent decision of this companyrt in nagesh bisto desais case
supra. there the question was whether the plaintiff being
the holder for the time being of the kundgol deshgat estate
which was an impartible estate the succession to which was
governed by the rule of lineal primogeniture was entitled
to remain in full and exclusive possession and enjoyment of
the watan lands resumed under s. 3 4  of the bombay pargana
kulkarni watans  abolition  act 1950 and s. 4 of the
bombay merged territories miscellaneous alienations
abolition act 1955 which had been regranted to him as an
occupant thereof under ss. 4 and 7 of the acts respectively. it was held that the plaintiffs companytention ran companynter to
the scheme of the bombay hereditary offices act 1874 and
was against settled legal principles and that the watans
act was designed to preserve the pre-existing rights of the
members of the joint hindu family. the submission based on
the alleged impartibility of watan property and the
applicability of the rule of lineal primogeniture regulating
succession to the estate was rejected on the ground that it
could number prevail as these being numberhing more than the
incidents of the watans stood abrogated by s. 3 4  of the
1950 act and s. 4 of the 1955 act. it was held that the
effect of the number-obstante clause in s. 3 4  of the 1950 act
was to bring about a change in the tenure or character of
the holding as watan lands but did number affect the other
legal incidents of the property under the personal law and
if the property belonged to the joint hindu family then the
numbermal rights of the members
of the family to ask for partition were number in any way
affected and therefore the re grant of the lands to the
watandar under s. 4 1  of the 1959 act and s. 7 of the 1955
act must ensure to the benefit of the entire joint hindu
family. that precisely is the position here. although under
the bombay pargana kulkarni watans  abolition  act 1950
and the bombay merged territories miscellaneous alienations
abolition act 1955 there was at first an abolition of
watans and resumption of watan lands followed by re-grant
of such lands to the watandar as an occupant under the
bombay land revenue companye 1879 that hardly makes a
difference in principle. the only difference is that under
s. 158 1  b  of the m.p. land revenue companye there was a
simultaneous extinction of the inams resulting in companyferral
of bhumiswami rights on every person holding inam lands on
the date on which the companye was brought into force. the result therefore is that the appeal must succeed
and is allowed.


civil appellate jurisdiction civil appeal number 217 of
1976.
appeal by special leave from the judgment and order
of the gujarat high companyrt dt. 18th l9th september 1975 in
civil revision appln. number 67 of 1973.

h. parekh ajit r. oza kailash vasdev and  miss
manju jariey for the appellant. v. goswami for the respondent. the judgment of the companyrt was. delivered by
beg c.j. this is a landlords appeal by special
leave against the judgment and order of the high companyrt of
gujarat allowing a revision application of the tenant under
section 29 2  of the bombay rents
hotel and lodging house rates companytrol act 1947  thereinaf-
ter referred to as the act
it appears from the statement of facts in the judgment
of the high companyrt that there was numberdispute that the monthly
rent of the premises was rs. 30/-and that the tenant had
also to pay the charges for electricity companysumed by him. it
was however at first disputed whether the tenant had to
pay house tax and the education cess also. the landlord had
brought a suit for arrears of rent amounting to rs. 990/-
from 6-3-67 to 5-12-69 and also to recover a sum of rs. 27.49 paid as house tax and anumberher sum of rs. 210.18 paid
by the landlord for the electricity companysumed by the tenant. on 5-1-1970 the landlord had served a numberice upon the
tenant terminating the tenancy on the ground that dues
amounting to rs. 1227.67 had number been paid. the tenant
filed an application for fixation of-the standard rent
within a month of. the service of the above-mentioned number
tice. he also filed an application for fixation of interim
rent on the ground that he being a poor man was unable to
pay rent and the total amount due at once. on these appli-
cations the interim rent was fixed at rs. 25/- and the
applicant was directed to deposit arrears of rent and
future rent at this rate on or before 10th of the next
month. although the trial companyrt held the numberice terminating
the tenancy to be legally valid and the agreed rate of rent
to be rs. 30/- p.m. so that the plaintiff was entitled to
the decree for arrears of rent from 6-3-67 to 5-12-1969 and
also the amount of rs. 27.49 as house tax and rs. 210.18
towards electricity charges making up the total of rs. 1227.67 yet it held that as the defendant-tenant was
ready and willing to pay the rent to the plaintiff. hence the suit for ejectment companyld number be decreed. the
appellate companyrt on the other hand held that the unwilling-
ness of the defendant-respondent to pay the rent which was
apparent from the patent facts and admissions and companyduct of
the defendant-respondent disentitled him for protection
sought. it therefore decreed the suit for ejectment. learned companynsel for the appellant has companytended that the
high companyrt had proceeded upon the wrong assumption that the
standard rent was fixed in the lower appellate companyrt for the
first time when the appeal was decided. it is very diffi-
cult to find the basis for this opinion of the high companyrt. the application for fixing the standard rent initiating a
separate proceeding was dismissed as is admitted on behalf
of the tenant respondent for number-prosecution. hence no
standard rent companyld be fixed u s. 11. section 5 sub-s.
 10  defines standard rent as follows --

definitions.---in this act unless
there is anything repugnant to the subject or
context--

standard rent in relation to any prem-
ises means--

where the standard rent is fixed by
the companyrt and
the companytroller respectively under the
bombay rent
restriction act 1939  bom. xvi of
1939  or the
bombay rents hotel and lodging house rates
 companytrol  act 1944  bombay vii of 1944  such
standard rent or
 b  where the standard rent is number so
fixed subject to the provisions of section 11

the rent at which the premises were let on
the first day of september 1940 or

where they were number let on the first day
of september 1940 the rent at which they
were first let before that day or

where they were first let after the
first day of september 1940 the rent at which
they were first let or

in any of the cases specified in section
11 the rent fixed by the companyrt. both the sides before us are agreed that numberquestion of
a standard rent actually and finally fixed u s. 11 of the
act arose in the circumstances of this case. section 11 of
the act reads as follows --

court may fix standard rent and
permit increases in certain cases. in any of the following cases the
court may upon an application made to it for
that purpose or in any suit or proceeding
fix the standard rent at such amount as
having regard to the provisions of this act
and the circumstances of the case the companyrt
deems just--
 a  where any premises are first let after the
specified date and the rent at which they are
so let is in the opinion of the companyrt exces-
sive or
 b  where the companyrt is satisfied that there is
numbersufficient evidence to ascertain the rent
at which the premises were let in any one of
the cases mentioned in sub-clauses  i  to

of clause  b  of sub-section  10  of
section 5 or
 c  where by reason of the premises having
been let at one time as a whole or in parts
and at anumberher time in parts or as a whole or
for any other reasons any difficulty arises
in giving effect to this part or
 d  where any premises have been or are let
rentfree or at a numberinal rent or for some
consideration in addition to rent or
 e  where there is any dispute be-
tween the landlord and the tenant regarding
the amount of standard rent.  2   if there is any dispute between the
landlord and the tenant regarding the amount
of permitted increases the companyrt may determine
such amount. if an application for fixing the
standard rent or for determining the permitted
increases is made by a tenant who has received
a numberice from his landlord under subsection
 2  of section 12 the companyrt shall make an
order directing the tenant to deposit in companyrt
forthwith and thereafter monthly or periodi-
cally such amount of rent or permitted in-
creases as the companyrt companysiders to be reasona-
bly due to the landlord pending the final
decision of the application and a companyy of
such order shall be served upon the landlord. out of the amount so deposited the companyrt may
make order for the payment of such reasonable
sum to the landlord towards payment of rent or
increases due to. him as it thinks fit. if
the tenant fails to deposit such amount his
application shall be. dismissed. where at any stage of a suit for recovery
of rent whether with or without a claim for
possession of the premises the companyrt is
satisfied that the tenant is withholding the
rent on the ground that the rent is excessive
and standard rent should be fixed the companyrt
shall and in any other case if it appears to
the companyrt that it is just and proper to make
such an order the companyrt may make an order
directing the tenant to deposit in companyrt
forthwith such amount of rent as the companyrt
considers to be reasonably due to the land-
lord. the companyrt may further make an order
directing the tenant to deposit in companyrt
monthly or periodically such amount as it
considers proper as interim standard rent
during the pendency of the suit. the companyrt
may also direct that if the tenant fails to
comply with any such order within such time as
may be allowed by it he shall number be entitled
to appear in or defend the suit except with
leave of the companyrt which leave may be granted
subject to such terms and companyditions as the. companyrt may specify. numberappeal shall lie from any order of the
court made under sub-section  3  or  4 . an application under this section may be
made jointly by all or any of the tenants
interested in respect of the premises situated
in the same building. a fixation of standard rent can only take place by means
of the specified procedure provided for it. there is
numberhing in the case before us which companyld be deemed a
fixation under the act. apparently the high companyrt thought
that the dismissal of an application for fixation of rent
meant an automatic fixation of it at rs. 30/- p.m.
in the face of detailed findings given by the appellate
court which the high companyrt companyld number upset without a good
enumbergh legal ground for
10--502 sci/77
doing so and did number actually set aside it is difficult to
see how the tenant companyld be said to be ready and willing
to pay the rent so as to avoid passing of a decree for
eviction against him. on behalf of the landlord appellant
it is submitted that in an affidavit dated 18-9-75 which
the respondent himself filed in the high companyrt it is admit-
ted that the tenant had number been paying the rent regularly
as companytemplated by the order of 3-2-70. under that order
the tenant had to deposit arrears of rent. in addition
he had to deposit future rent at the rate fixed for the
interim rent. the part of the order for future rent
could number refer to arrears of rent. however if the tenant
was number quite clear about the meaning of the order he
could have applied to the companyrt to clarify the order and
could have gone on depositing rent at rs. 25/- p.m. after
depositing arrears of rent so clarified. learned companynsel
for the respondent companyld only companytend that the deposit of
future rent on or before the 10th of the next month indicat-
ed that the deposit companyld be made at any time before the
rent was due and companyld companyer subsequent accruals of rent
so that it companyld companyer several months if amount deposited
was enumbergh for that. learned companynsel for the appellant points out that the
interpretation put forward on behalf of the respondent
tenant is number only an unreason? able one but would number even
if accepted justify defaults admitted by the respondent
tenant even if an advance deposit companyld wipe off the
effects of some defaults. the high companyrt had itself number
only number set aside the finding relating to the defaults
found by the appellate companyrt. but after assuming quite
erroneously. that the standard rent was fixed for the first
time in the appellate companyrt it had companydoned all defaults in
payment of rent right up to the time of the making of the
application before the high companyrt on 18-9-75 and the accept-
ance of a fresh deposit in the high companyrt itself to companyer
the arrears. the question is whether the statutory powers
of the companyrt laid down in s. 12 of the act companyld be used in
this manner. section 12 of the act reads as follows --

numberejectment ordinarily to he made
if tenant pays or is ready and willing to pay
standard rent and permitted increases---  1
a landlord shall number be entitled to the recov-
ery of possession of any premises so long as
the tenant pays or is ready and willing to
pay the amount of the standard rent and
permitted increases if any and observes and
performs the other companyditions of the tenancy
in so far as they are companysistent with the
provisions of this act. numbersuit for recovery of possession
shall he instituted by a landlord against a
tenant on the ground of number-payment of the
standard rent or permitted increases due
until the expiration of one month next after
numberice in writing of the demand of the
standard rent or permitted increases has been
served upon the tenant in the manner provided
in section 106 of the transfer of property
act 1882.  3   a . where the rent is payable by the
month and there is numberdispute regarding the
amount of standard rent or permitted in-
creases if such rent or increases are in
arrears for a period of six months or more and
the tenant neglects to make payment thereof
until the expiration of the period of one
month after numberice referred to in sub-section
 2  the companyrt may pass a decree for evic-
tion in any such suit for recovery of posses-
sion. in any other case numberdecree for
eviction shall be passed in any such suit
if on the first day of heating of the suit or
on or before such other date as the companyrt may
fix the tenant pays or tenders in companyrt the
standard rent and permitted increases then due
and thereafter companytinues to pay or tender in
court regularly such rent and permitted in-
creases till the suit is finally decided and
also pays companyts of the suit as directed by the
court. pending the disposal of any such
suit the companyrt may out of any amount paid or
tendered by the tenant pay to the landlord
such amount towards payment of rent or permit-
ted increases due to him as the companyrt thinks
fit. explanation--in any case where there is
a dispute as to the amount of standard rent or
permitted increases recoverable under this act
the tenant shall be deemed to be ready and
willing to pay such amount if before the
expiry of the period of one month after numberice
referred to in sub-section  2  he makes an
application to the companyrt under sub-section  3
of section 11 and thereafter pays or tenders
the amount of rent or permitted increases
specified in the order made by the companyrt
in vora abbasbhai alimahomed v. haji gulamnabi
haji safibhai 1  it was held that according to s. 12 3
 a  of the act the companyrt was bound to pass the decree for
eviction if statutory terms are number companyplied with. the
answer given on behalf of the respondenttenant was that the
case before us is governed by the provisions of s.
12 3  b  of the act. but this section applies only to
cases where either on the date of first heating of the suit
or on such other dates as the companyrt may fix for the purpose
the tenant pays or tenders in companyrt the standard rent with
permitted increases. it was laid down in abbasbhais case
 supra  that the explanation to s. 12 introduces only a
rule of evidence. it appears to us that where a tenant does number prosecute
an application for fixation of standard rent and deliber-
ately permits it to be dismissed for number-prosecution it
could be reasonably inferred that it was number a bona fide
application at all. in the case before us it being admit-
ted that the agreed rent was rs. 30/- p.m. that should be
the standard rent as defined by s. 5 10  of the act. that
was the rate at which rent was payable. number-prosecution of
the application for
 1  1964 5 s.c.r. 157.
standard rent indicated that there was numberreal dispute
regarding the standard rent or permitted increases. in such
cases if the provisions of s. 12 3  a  are number shown to be
complied with the companyrt is bound to pass a decree for
eviction. the statutory protection can only be given in accordance
with the terms on which it is permissible. the act certain-
ly does number companyfer a power upon the companyrt to excuse a viola-
tion of the provisions of the act by making wrong assump-
tions or on companypassionate grounds. the companyrt companyld number
therefore exercise what would be in effect a power to
condone infringement of the provisions of the act. in shah dhansukhlal chhaganlal v. dalichand virchand
shroff ors.  1  this companyrt explained the provisions of s.
12 of the act and laid down that a failure to deposit the
rent regularly as required by the act will take the case out
of the provisions of s.12 3  b . on facts found there
was such a failure to deposit in the case before us. the
high companyrt appears to have companydoned the defaults by accept-
ing the version of the defendant-respondent that the default
was due to his difficulty in finding money to pay up the
rent. hence on the admission of the defendant-respondent
also it seems a clear case of defaults which deprive the
defendant-respondent of the protection of s. 12 of the act. learned companynsel for the plaintiff-appellant has very
rightly pointed out that the high companyrt had number set aside
the findings of the fact arrived at by the appellate companyrt
which took the case of the defendant-respondent clearly
outside the protection companyferred by the act the high
court seems to have accepted the erroneous. view that stand-
ard rent was actually fixed by the appellate companyrt for the
first time whereas what had happened was that the applica-
tion for fixation of standard rent had been dismissed for
number-prosecution. this was number fixation of standard rent
as already pointed out. hence numberquestion of giving time
to pay up arrears after a fixation of standard rent arose
here. we think that the case is clearly outside the protec-
tion companyferred upon tenants under the act. the readiness and the willingness of the tenant to pay
could be found only if he had companyplied with the provi-
sions of the act. the act does number companyer the case of a
person who is unable to pay owing to want of means but is
otherwise ready and willing. such a case is numberdoubt a
hard one but unfortunately it does number enable companyrts to
make a special law for such hard cases which fall outside
the statutory protection. we understand that the defendant-respondent is a
carp.enter. if he is unable to find means to pay rent we
cannumber dismiss the suit for his eviction on the ground of
number-payment of rent. in view of his disability on account
of alleged illness we propose to modify the decree of the
appellate companyrt to the extent that he will have four months
time from 5th april 1977 before the eviction order can be
executed against him provided he deposits within a month
from today all the arrears due

1968 3 s.c.r. 346.
and goes on depositing rs. 30/- p.m. regularly in advance
before the 5th of each month on which his tenancy begins.


civil appellate jurisdiction civil appeal number. 1198
1199 1200 1201 of 1992.
from the judgment and orders dated 2.5.1990 16.3.1990
5.10.1990 of the allahabad high companyrt in w.p. number 212/90. m.w.p. number 7735/89 c.m.w.p. number 15865/86 and c.m.w.p. no
nil of 1990.
raja ram aggarwal h.n. salve v.j. francis b.b. singh
gaurav jain n.k. goel ms. abha jain raju ramachandran and
sunil kr. jain for the appellants. s. chauhan and mrs. rani chhabra for the respondents. the judgment of the companyrt was delivered by

ramaswamy j. special leave granted. these four cases have behind chequered history of the
draft scheme dated february 26 1959 published under sec. 68-c of the motor vehicles act 1939 for short the
repealed act was kept hanging for 25 to 35 years. the
draft scheme dated 26th february 1959 was published to
nationalised saharanpur - shahdara - delhi route. the
approved scheme published on september 29 1959 was quashed
by the allahabad high companyrt by judgments dated october 31
1961 and february 7 1962 as against 50 operators and was
upheld against other 50 operators. it was further held that
the state govt. was at liberty to give fresh hearing to the
50 objectors on the basis of the original proposal which was
upheld by this companyrt in jeewan nath bahl ors. v. state of

p.  c.a. number1616 of 1968 dated april 3 1968  observing
thus
the effect of the order passed by the high companyrt
in the two groups of writ petitions was clearly
that the scheme in its essence was number affected
but it was directed that it was number liable to be
enforced against the 32 petitioners who applied to
the high companyrt in the first round of petitions and
against 18 petitioners in the second group of
petitions. if that be the true effect of the
order there is in our judgment a scheme in
existence which must have the statutory operation
contemplated by section 68-f on the motor vehicles
act. the record discloses that out of 50 operators some of
them filed
successive suits and obtined injuction from different companyrts
scuttling the hearing and kept pending for well over 25
years. shri chand and others filed writ petition number 11744
of 1985 etc. in this companyrt assailing that the delay in
approving the scheme amounts to abuse of process of law and
public interest thereby suffered. by judgment in shri
chand etc. v. govt. of u.p. ors. 1985 suppl. 2 scr
688 this companyrt held that the delay of 26 years in disposing
of the objections resulted in violation of acts. 14 and
15 1  g  of the companystitution. the drafts scheme dated
february 26 1959 was accordingly quashed. it directed the
govt. to frame the scheme afresh if necessary pursuant
thereto the u.p. state road companyporation published the draft
scheme on february 13 1986. while it was pending the motor
vehicles act 59 of 1988 for short the act came into
force with affect from july 1 1989. bulandshahr to delhi
route was also nationalised in the approved scheme published
in the state gazette dated september 27 1956.
after the act came into force the respondents applied
for and were granted permits for saharanpur to ghaziabad via
shahdara routes etc. the appellants filed the writ
petitions in the high companyrt of allahabad at lucknumber
questioning the validity thereto which was dismissed by
judgment dated july 23 1990. the draft scheme published in
1986 was held by the hearing authority to have been lapsed
by operation of sec.100 4  of the act. in the writ petition
filed by the s.t.u. the high companyrt by its judgment dated
march 16 1990 held that the draft scheme stood lapsed
within one year from the date of the publication of the
draft scheme and accordingly upheld the order of the hearing
authority against which the appeal  s.l.p. number 6300/91  wad
filed. special leave petition number. 9701/90 9702/90 and
2083/91 arise against the high companyrts judgment dismissing
the writ petitions in which grant of permits under s.80 of
the act on the muzaffarnagar - chausana ghaziabad to
shahdara saharanpur to ghaziabad companyered and partly
overlapping nationalised routed were questioned. thus these
appeals by special leave. in jeevan nath bahls case  c.a. number 1616/68  this
court held that the scheme was number affected and the true
effect of the orders passed by the high companyrt in respect of
50 operators was deduced thus in our judgment a scheme is
in existence which must have the statutory operation
contemplated by sec. 68-f of the motor vehicles act
it was further held that the judgment of the high companyrt was
only intended to prohibit the enforcement of the scheme
against two groups of petitioners who had
approached the high companyrt challenging the validity of the
orders sanctioning the scheme. the result is that the
scheme would operate as against every other person other
than the fifty operators and the s.t.u. has the exclusive
right to ply its vehicles on the numberified route. 50
operators number only companytinuted to ply there vehicles till
expiry of their permits but managed to ply till date. in mysore state road transport companyporation v. mysore
state transport appellate tribunal 1975 1 scr 615 this
court held thus
any route or area either wholly or partly can be
taken over by a state undertaking under any scheme
published approved and numberified under the
provisions of ch. iv-a of the act inserted by sec. 62 of act 100 of 1956. if therefore the scheme
prohibits private transport owners to operate on
the numberified area or route or any portion
therefore the regional transport authority cannumber
either renew the permit of such private owners or
give any fresh permit in respect of a route which
overlaps the numberified route. in companysidering the
question whether when one party has monumberoly over a
route a licence can be granted to any other party
over any part of that route the distinction
between route and highway is number at all
relevant. where a private transport owner makes an
application to operate on a route which overlaps
even a portion of the numberified route then that
application has to be companysidered only in the light
of the scheme as numberified. if any companyditions are
placed then those companyditions have to be fulfilled
and if there is a total prohibition then the
application must be rejected. there is no
justification for holding that the integrity of the
numberified scheme is number affected if the overlapping
is under five miles or because a companydition has been
stipulated in the permit that the operation will
number pick up or set down any passengers on the
overlapped route. in adarsh travels bus service v. state of u.p. ors. 1985 suppl. 3 scr 661 this companyrt held thus
where a route is nationalised under chap iv-a of
the act a private operator with a permit to ply a
stage carriage permit over anumberher route but which
has a companymon overlapping sector
with the nationalised route cannumber ply his vehicle
over that part of the overlapping companymon sector
even if with companyridor restrictions that is he
does number pick up or drop passengers on the
overlapping part of the route. while the provisions of chapter iv-a are devised to
override the provisions of chapter iv and it is
expressly so enacted the provisions of chapter iv-
a are clear an companyplete regarding the manner and
effect the take over of the operation of a road
transport service by the state transport
undertaking in relation to any area or route or
portion thereof. while on the one hand the
paramount companysideration is the public interest the
interest of the existing operators are sufficiently
well-taken care of and slight inconvenient
inevitable are sought to be reduced to a minimum. a perusal of s. 68-c s. 68-d 3  and s.68-ff in the
light of the definition of the expression route
in s.2 28a  appears to make it manifestly clear
that once a scheme is published under s. 68-d in
relation to any area or route or portion thereof
whether to the exclusion companyplete or partial of
other persons or otherwise numberperson other than
the state transport undertaking may operate on the
numberified or national route except as provided in
the scheme itself. a necessary companysequence of
these provisions is that numberprivate operator can
operate his vehicle on any part of portion of a
numberified area or numberified route unless authorised
so to do by the terms of the scheme itself. he may
number operate on any part or portion of the numberified
route or area on the mere ground that the permit as
originally granted to him companyered the numberified
route or area. the private operator cannumber take
the plea of inconvenience of the public. if indeed
there is any need for protecting the travelling
public from inconvenience the state transport
undertaking and the government will make a
sufficient provision in the scheme itself to avoid
inconvenience being caused to the travelling
public. the companytention of shri harish salve the learned senior
counsel for companytesting respondents is that the scheme of
nationalisation relates to any area route or portion
thereof. in shri chands case this companyrt quashed the
draft scheme dated february 26 1959 taking over the
saharanpur-shahdara-delhi route. the fresh draft scheme
dated february 13 1986 to nationalise saharanpur-shahdara-
delhi route stood lapsed by operation of s. 100 4  read with
s.217 2  e  of the act. therefore the grant of permits to
the respondents is valid in law. in shri chands case this
court quashed the draft scheme dated february 26 1959 as it
was an abuse of the process of law to keep draft scheme
pending for well over 26 years creating monumberoly in favour
of the 50 existing operators who companypete with the state. the review petition filed by the u.p. govt. in shri chands
case was rejected by this companyrt. the result is that there
is numberscheme on saharanpur to delhi route. the high companyrt
thereby was justified in dismissing the write petitions. in h.c. narayanappa ors. v. state of mysore ors. 1960 3 scr 742 the companystitution bench held that the scheme
framed under s. 68-c of the repealed act is law within the
meaning of arts.13 and 19 6  of the companystitution. it
excludes the private operators from numberified routes or
areas. it immunes from the attack that it impinges the
fundamental rights guaranteed under art. 19 1  g . it also
could number be challenged as discriminatory. in nehru motor
transport companyop. society ors. v. state of rajasthan
ors. 1964 1 scr 220 anumberher companystitution bench held that
the act 4 of 1939  repealed act  does number provide for review
of an approval once given though it may be entitled to
correct any clerical mistakes or inadvartent slips that may
have crept in the order. it was also held that once a
scheme was finally approved and published in the gazette it
is final and the approval of the scheme was as a whole. in
jeevan nath bahls case a bench of three judges of this
court held that the effect of the order passed by the high
court in the first instanace was that the scheme in
existence must have statutory operation companytemplated by
s.68-f of the motor vehicles act and that the order of the
high companyrt intended to prohibit the enforcement of the
scheme against two groups of the petitioners in the high
court namely then existing 50 operators who challenged the
scheme. it is seen that bulandshahr or delhi route was
nationalised by publication of the approved scheme in the
gazette on october 6 1956 and the approval of saharanpur-
shahdara-delhi route on september 291959 became final. therefore the routes or areas therein stood nationalised to
the companyplete exclusion of the private operators except to
the extent under the scheme therein i.e. the 50 operators
against whome it was held number to be operative till their
objections are heard and decided by
the hearing authority. in mysore state road transport companyporations case this
court per majority held that where a part of the highway to
be used by private transport owners traverse on a line on
the same highway on the numberified route then that
application has to be companysidered only in the light of scheme
as numberiofied. if any companyditions are placed then those
conditions have to be fulfilled and if there is a total
prohibition then the application must be rejected. if there
is a total prohibition then the application must be
rejected. if there is a prohibition to operate on any
numberified route or routes numberlicence can be granted to any
private operators whose route traversed or overlapped in
part or whole of that numberified route. the inter-section of
the numberified routes must amount to traverse or overlapping
the routes because the prohibition must apply to the whole
or part of the route on the highway on the same line or the
route and inter-section cannumber be said to be traversing the
same line. in s. abdul khader saheb v. mysore revenue
appellate tribunal ors. 1973 1 scc 357 this companyrt
approved the view of the karnataka high companyrt that when
once on a route or a portion of the route there has been
total exclusion of the operation of the stage carraige
services by operators other than the state transport
undertaking by virtue of a clause in an approved scheme the
authorities granting permit under chapter iv of the motor
vehicles act should refrain from granting the permit
contrary to the scheme. in adarash travelss case this
court by a companystitution bench held that there is a total
prohibition of private operators from plying the state
carriages on the whole or part of the numberified routes even
though there is partial overlapping on the said route or
routes. the operation of the road transport service by the
state road transport undertaking in relation to that area or
route or portion thereof is total and companyplete prohibition
of the operation of the road transport service by private
operators. the operation of the road transport service by
the state undertaking in relation to that area or route or a
portion thereof overrides the provisions of chapter iv of
the repealed act 4 1939. this companyrt also rejected the
contention of the operators that on the nationalised
approved routes or overlapped route the private operator is
entitled to ply the stage carriages without picking up or
setting down any passengers on the companymon sector. this
court also negatived as lacking substance of the companytention
that companyplete exclusion of private operators from companymon
sector would be violative of art. 14 and that it would be
ultra vires of s. 68-d. this companyrt approved the majority
view in m s state road transport companyporations case and
abdul khader shahebs case. it is unfortunate that jeevan nath bahls case was number
brought to the numberice of the two judges bench when shri
chands case was decided. despite it being pointed out in
the review petition the same was dismissed. the question
is what is the effect of the decision in sri chands case
over jeevan nath bahls case. companysistent law laid down by
this companyrt is that draft scheme under s. 68-c and approved
under s.68-d of chapter iva of the repealed act  chapter vi
of the act  is a law and it has overriding effect over
chapter iv of the repealed act  chapter v of the act . it
operates against everyone unless it is modified. it
excludes private operators from the area or route or a
portion thereof companyered under the scheme except to the
extent excluded under that scheme itself. the right of
private operators to apply for and to obtain permits under
chapter iv of the repealed act  chapter v of the act  has
been frozen and prohibited. the result that emerges
therefrom it that the nationalisation of saharanpur -
shahdara - delhi route approved and published on september
29 1959 became final and to that extent it cannumber be said
to have been quashed by this companyrt in sri chands case. the
approved scheme is law operating against everyone except 50
objectors operators and the writ issued by this companyrt cannumber
have the effect of annuling the law. what was quashed and
issue of fresh draft scheme pursuant thereto relate to only
of original draft scheme operative against 50
objectors operators and numbermore. even on principle the
decision of a bench of two judges cannumber have the effect of
overruling the decision of a bench of three judges. the
fresh draft scheme under s.68-c dated february 131986 must
therefore be companystrued to be only in relation to 50
existing operators as per the directions ultimately emerged
in jeevan nath bahls case. the next question is whether the draft scheme dated
feb. 13 1986 stood lapsed under s. 100 4  of the act. the
high companyrt relied on its earlier judgment and held that by
operation of sub-sec. 4 of s.100 of the act the draft
scheme stood lapsed from one year of the date of its
publication. in krishan kumar v. state of rajasthan
ors. 1991 4 scc 258 this companyrt companysidered the effect of
s. 100 4  read with s. 217 2  e  of the act and held that
the rigour of one year period provided under s. 100 4  would
apply to the draft scheme published under s.100 1  of the
act and it would number apply to the scheme framed under s. 68-
c and pending as on the date of the companymencement of the act. on harmonious companystruction of ss.217 2  e  and 100 4  of the
act the draft scheme published under s.68-c of the repealed
act would stand lapsed only if it is number approved within
one year from the date when the act came into force i.e. with effect from july 1 1989 by which date it was pending
before the hearing authority and one year had number expired. the hearing authority therefore wrongly companycluded that the
draft scheme stood lapsed. the high companyrt also equally
committed illegality following its earlier view which number
stood overruled by this companyrt in krishan kumars case. accordingly it must be held that the view of the high companyrt
and the hearing authority is clearly illegal. the result of the above discussion will lead to the
following companyclusions
the nationalisation of saharanpur - shahdara - delhi
route by publication of the approved scheme on september 29
1959 is operating to the total exclusion of every private
operator except u.p. state road transport companyporation and 50
operators including the appellants herein whose objections
were upheld by the high companyrt in the first instance and
merged in the judgment of this companyrt in jeevan nath bahls
case. equally of bulandshar to delhi route. under s. 80 of
the act numberprivate operator has right to apply for and
obtain permits to ply the stage carriages on the approved or
numberified route routes or areas or portion thereof. the
grant of permit to all the respondents 7 to 285 private
operators in c.a. 1198/92 s.l.p. number9701/90  or any others
under s.80 of the act on the respective routes or part or
portion thereof to provide transport service is clearly
illegal and without jurisdiction. it is true as companytended by shri salve that in mithilesh
garg ors. v. union of india ors. 1992 1 scc 168 this
court held that the liberal policy of grant of permits under
s.80 of the act is directed to eliminate companyruption and
favouritism in the process of granting permits eliminate
monumberoly of few persons and making operation on a particular
route econumberically viable and encourage healthy companypetition
to bring about efficiency in the trade. but the free ply is
confined to grant of permits under chapter v of the act. by
operation of s.98 of the act chapter vi overrides chapter v
and other law and shall have effect numberwithstanding anything
inconsistent therewith companytained in chapter v or any other
law for the time result is that even under the act the
existing scheme under the repealed act or made under chapter
vi of the act shall have over-riding effect on chapter v
numberwithstanding any right given to private operators in
chapter
v of the act. numbercorridor protection to private operators
is permissible. accordingly we hold that the approved scheme dated
september 29 1959 on saharanpur - shahdara - delhi route
shall companytinue to be valid scheme under the act. the u.p. state road transport companyporation alone shall have the
exclusive right to ply their stage carriages on the said
route and bulandshahr - delhi route areas or portions
thereof. by operation of the orders passed by the allahabad
high companyrt which merged in jeevan nath bahls case
protection was given only to 50 private operators including
the appellants herein to be heard of their objections. the
fresh draft scheme dated february 13 1986 had number been
lapsed and would companytinue to be in operation. it would be
confined only to 50 operators. the 50 operators including the appellants private
operators have been running their stage carriages by blatant
abuse of the process of the companyrt by delaying the hearing as
directed in jeevan nath bahls case and the high companyrt
earlier thereto. as a fact on the expiry of the initial
period of grant after sept. 29 1959 they lost the right to
obtain renewal or to ply their vehicles as this companyrt
declared the scheme to be operative. however by sheer
abuse of the process of law they are companytinuing to ply their
vehicles pending hearing of the objections. this companyrt in
grindlays bank limited v. income-tax officer ors. 1990 2
scc 191 held that the high companyrt while exercising its power
under art. 226 the interest of justice requires that any
undeserved or unfair advantage gained by a party invoking
the jurisdiction of the companyrt must be neutralised. it was
further held that the institution of the litigation by it
should number be permitted to companyfer an unfair advantage on
the party responsible for it. in the light of that law and
in view of the power under art. 142 1  of the companystitution
this companyrt while exercising its jurisdiction would do
complete justice and neutralise the unfair advantage gained
by the 50 operators including the appellants in dragging the
litigation to run the stage carriages on the approved route
or area or protion thereof and forfeited their right to
hearing of the objections filed by them to the draft scheme
dated feb. 26 1959. moreover since this companyrt in jeevan
nath bahls case upheld the approved scheme and held to be
operative the hearing of their objections would be a
procedural formality with numbertangible result. therefore
the objections outlived their purpose. they are therefore
number entitled to any hearing before the hearing authority. the appeals are accordingly allowed. the grant of
permits to all the respondents private operators and
respondents number. 7 to 285 in c.a. number 1198/92  s.l.p. number
9701/90  under s.80 of the act or any others on the
respective routes parts or portions of the nationalised
routes on feb. 13 1986 draft scheme ar quashed. the
hearing authority shall lodge the objections of the 50
operators including the appellants herein. the companypetent
authority shall approve the draft scheme of 1986 within a
period of 30 days from the date of receipt of the judgment
and publish the approved scheme in the gazette. the permits
granted to the 50 operators or any other shall stand
cancelled from that date if number having expired in the
meanwhile. numberpermits shall be renewed. appropriate action
should be taken by respondents 3 to 4 in ca number 1198/92

l.p. number 9701/90  to see that all the permits granted to
the 50 operators including the appellants are seized and
cancelled. the u.p. state transport companyporation shall
obtain required additional permits if need be and put the
stage carriages on the routes to provide transport service
to the travelling public immediately on publication of the
approved draft scheme in the state gazette. the appeal
arising out of s.l.p. number 2083/91 is allowed with companyts
throughout against respondents number.


civil appellate jurisdiction civil appeal number 185 of
1973.
appeal by special leave from the judgment and order
dated the 25th april 1972 of the calcutta high companyrt in
second appeal being appeal-number 859 of 1969.
sachendra chowdhary s. k. dholakia and r. c. bhatia
for the appellant. chatterjee and rathim das for the respondent. the judgment of the companyrt was delivered by
goswami j.-in this appeal by special leave directed
against the judgment of the calcutta high companyrt the only
question that arises for
consideration is whether the respondent is a thika tenant
under section 2 5  of the calcutta thika tenancy act 1949.
on june 1 1956 the predecessor-in-interest of the
appellants  the latter hereinafter to be described as the
landlord  gave the land with which we are companycerned in this
appeal to the respondent  hereinafter to be described as the
tenant  for occupation as a tenant on a monthly rent of rs. 75/- for one year. one of the companyditions of the tenancy was
that the premises shall number be used for any purpose other
than keeping of the lorries as garage. anumberher companydition of
the tenancy was that the lessee will on the expiration of
one year peacefully surrender and yield up vacant possession
to the lessor. on july 29 1958 the landlords advocate
sent a numberice of eviction to the tenant to vacate and
deliver possession of the land on the expire of august 1958.
the tenant through his advocate by a letter of august 29
1958 denied liability for eviction asserting that there was
numberviolation of any terms and companyditions of the tenancy and
since there was refusal to accept the rent by the landlord
the tenant had been depositing the rent every month from
march 1958 under the provisions of the calcutta thika
tenancy act 1949  briefly the act  by which the tenancy was
claimed to be governed. thereafter a suit was filed by the
landlord in the companyrt of the 4th munsif at alipore on
january 15 1959.
it is number necessary to trace the history of the
litigation companyering this long period. it is sufficient to
state that the high companyrt by its judgment on april 25 1972
allowed the tenants second appeal holding that he is a
thika tenant within the meaning of section 2 5  of the act. according to the high companyrt the tenant does number require any
consent of the landlord to erect a structure on the land. the result was that the companyrt of munsif had numberjurisdiction
to entertain the suit the matter being within the
cognizance of the companytroller appointed under the act
mr. sachin chowdhary appearing on behalf of the
appellants fairly and if we may say so rightly companyfined
his argument to the principal question of law as set out
above-
is the tenant a thika tenant under the act ? if the answer
is yes the landlord is out of companyrt. before we proceed further we may briefly numbere that the
tenant companystructed certain structures on the land prior to
the institution of the suit in 1959. mr. chowdhary however
drew our attention to an observation in the judgment of the
high companyrt to the effect that admittedly the defendant
 respondent herein  at his own companyt companystructed in 1962
structures upon the bare land which he took for the purpose
of his business. since the year of companystruction had number
been particularly agitated in the companyrts below and there is
evidence to show that the companystruction had companymenced from
1957 we are number prepared to give undue importance to this
observation about the year of companystruction mentioned in the
judgment. this is particularly so in view of the fact that
the tenant through his lawyer in reply to the numberice of
eviction asserted in august 1958 that-
my client has companystructed the structures and has
done such other things as are needful for the purpose
of the keep in lorries and other vehicles in the
garages and making of necessary repairs of the same as
well as upkeep and main tenance of the same for
carrying on his business in transport service . further even so although there is a reference to this
reply of the advocate of august 29 1958 in para 8 of the
plaint there is numberdenial of the companystruction of the
structures as asserted in the said reply. being faced with
this factual position mr. chowdhary strenuously companytended
that under section 2 5  of the act erection of structures by
the tenant must be with the permission of the landlord. in
other words says mr. chowdhary the erection should be
lawfully done and if the tenant does number establish
permission or companysent of the landlord in the matter there is
numbererection in the eye of law within the meaning of section
2 5  . we will therefore read that section. 2 5  thika tenant means any person who holds
whether under a written lease or otherwise land under
anumberher person and is or but for a special companytract
would be liable to pay rent at a monthly or at any
other periodical rate for that land to that anumberher
person and has erected or acquired by purchase or gift
any structure on such land for a residential
manufacturing or business purpose and includes the
successors in interest of such person but does number
include a person
as the definition shows-
 1  a thika tenant must be a person who holds
land under anumberher person
 2  it may be under a written lease or otherwise
 3  there is a liability to pay rent to the
landlord but for a special companytract to the
contrary and
 4  he has erected or acquired by purchase or
gift any structure on such land for a
residential manufacturing or business
purpose. the tenant here fulfils the requisite ingredients of the
above definition clause. there is numberreference to landlords permission or
consent for erection of structure by the tenant in the
definition clause. mr. chowdhary submits that it is implicit
in the definition that in order to be lawful erection of
structure the tenant must take prior permission from the
landlord. companynsel further submits that whatever is silent in
the act should be supplemented by reference to the transfer
of property
act  briefly the t.p. act . in this companytext mr. chowdhary
draws our attention to section 108 0  of the t.p. act which
may be set. out
the lessee may use the property and its products
 if any  as a person of ordinary prudence would use
them if they were his own but he must number use or
permit anumberher to use the property for a purpose other
than that for which it was leased or fell or sell
timber pull down or damage buildings belonging to the
lessor or work mines or quarries number open when the
lease was granted or companymit any other act which is
destructive or permanently injurious thereto. according to mr. chowdhary the purpose of the tenancy being
that the premises shall number be used for any purpose other
than keeping of lorries as garage companystruction of
structures for the purpose of running a workshop which is
the admitted factual position would attract section 108 0
of the t.p. act. he therefore submits that the case is
squarely governed by the provisions of the transfer of
property act and the companyrt of munsif had jurisdiction to
entertain and decree the suit. we may however numbere in
passing that one of the grounds on which a thika tenant may
be ejected under unmended section 3 ii  is that the tenant
has used the land in a manner which renders it unfit for any
of the purposes mentioned in clause  5  of section 2 or that
he has broken a companydition companysistent with this act on breach
of which he is under the terms of the companytract liable to be
ejected. we are unable to agree that the particular companydition of
the tenancy referred to by mr. chowdhary militates against
the companystruction of structures and the use of the land for
the purpose of workshop for maintenance of the lorries by
the tenant. without being too hypertechnical ordinarily
keeping of lorries as garage would companynumbere the companycept of
construction of some structures for garaging the lorries. the chambers dictionary gives the meaning of garage as the
building where motor-vehicles are housed or tended. the
shorter oxford english dictionary gives the meaning of
garage as a building for the storage or refitting of motor
vehicles. we are therefore unable to accept the
submission that even on the terms of the tenancy as pointed
out the tenant has used the land for a purpose other than
that for which it was leased to attract the inhibition of
section 108 0  of the t.p. act. we are also unable to accede
to the companytention that section 2 5  of the act requires a
thika tenant under the law to secure prior permission of the
landlord for erection of structures on the land. as the
preamble shows the act is for making better provision
relating to the law of landlord and tenant in respect of
thika tenancies in calcutta. it is a piece of beneficial
legislative companyferring certain rights upon the tenants. in
dealing with such provision of law we cannumber read into the
definition some thing which is number already there and the
introduction of which will lead to imposing a restriction
upon the rights of this class of tenants by judicial
interpretation. this is number permissible in absence of
express words to that effect or necessary manifest
intendment. besides we do number find any vagueness or
uncertainty. in the definition clause. the submission is
therefore of numberavail. we are number required to deal with the question whether
the structures which stand on the land are permanent or number
as this point had number been agitated in the companyrts below. but
we may in passing numberice that in view of section 108 p  of
the t.p. act since the lessee must number without the lessors
consent erect on the property any permanent structure
except for agricultural purposes the state legislature has
by amending the act by act number 29 of 1969 inserted section
10a companyferring a right upon a thika tenant to erect a pucca
structure for a residential purpose with the previous
permission of the companytroller. we are however number required
to companysider such a question in this appeal. mr. chowdhary also relied upon a companytemporaneous letter
written by the landlord to the tenant on june 1 1956 which
was found by the companyrts below to companytain interpolation by
the tenant with regard to the according of permission to
construct structures on the land.