civil appellate jurisdiction civil appeal number1138 of
1981.
from the judgment and order dated 22.9. 1980 of the
punjab and haryana high companyrt in w. p. number 2163 of 1980.
appellant-in-person. m. abdul khader v. s. desai ms. a. subhashini and

n. poddar for the respondents. the judgment of the companyrt was delivered by
desai j. appellants who are husband and wife
respectively moved civil writ petition number 2163 of 1980 in
the high companyrt of punjab and haryana praying for quashing of
a search warrant issued by respondent number 2- assistant
director enforcement on august 24 1979 as also the warrant
of authorisation issued by respondent number5 - companymissioner
of income tax jullandur on april 9 1980 and for a
direction to return articles seized during the search of his
house on august 24 1979 and for relief incidental and
ancillary thereto. briefly stated the allegations were that respondent
number 6- shri j. s. ahuluwalia assistant companymissioner of
income-tax at jullundur bore personal malice towards the
appellants amongst others attributable to an incident
concerning the servant of the appellants and an application
for transfer of appeals pending before him made to the
chairman central board of direct taxes by the first
appellant. actuated by this personal malice respondent number
6 first instigated respondent number 2 to issue a search
warrant under the authority of which a raid was carried out
at the residence of the appellants on august 24 1979 which
led to the seizure of certain documents including some
foreign currency. thereafter when the
appellants made various representations for return of
documents again instigated by respondent number 6 respondent
numbers issued a warrant of authorisation under sec. 132a of
the income tax act on april 9 1984 by which respondent number
2 was directed to deliver such rooks of accounts and other
documents and goods seized during the search to the
requisitioning officer as the documents and material seized
during the search had number been returned the writ petition
as aforementioned was filed or the reliefs hereinabove set
out. when the writ petition came. up before a divisional
bench of the punjab and haryana high companyrt mr. kuldeep
singh learned companynsel who appeared on behalf of the
directorate of enforcement department made a statement that
the directorate has closed the proceedings and does number want
to take any action against the appellants on account of the
search. the high companyrt observed that in view of this
statement the directorate of enforcement would numbermally be
required to return the seized material to the appellants but
it was numbericed that as the same was sealed under a warrant
of authorisation issued under sec. 132a of the income tax
act an order for return of the same cannumber be made. the
high companyrt also took numbere of the statement made by mr. d.n. avathy that the income tax department was still scrutinising
the seized documents the high companyrt was of the opinion that
there was numberhing illegal in the issuance of search warrant
the companysequent search the seizure during the search and
taking over of the documents by the income tax department
under sec. 132a. the high companyrt accordingly dismissed the
petition. hence this appeal by special leave. dr. partap singh the first appellant who appeared in
person submitted that respondent number2 acted in a manner
contrary to law in issuing a search warrant when there was
numbermaterial before him on which he companyld entertain a
reasonable belief that any documents which in his opinion
will be useful for or relevant to in investigation or
proceedings under foreign exchange regulation act.1973  act
for short  are secreted in any place whereupon alone he may
authorise any officer of enforcement to search for and seize
or may himself search for and seize such documents. it was
also companytend that as the second respondent did number record
his reasons in writing on which reasonable belief was
entertained the search warrant issued by him was illegal. sec. 37 of the act companyfers power on any officer of
enforcement number below the rank of assistant director of
enforcement to search premises. this power can be exercised
if the officer has reason to believe that any documents
which in his opinion will be useful for or relevant to any
investigation or proceedings under the act are secreted in
any place. the appellant companytended that numbermaterial was
placed on record which may permit an inference that the
second respondent had reason to believe that any documents
which in his opinion would be useful for or relevant to any
investigation or proceeding under the act were secreted in
the house of the appellants. it was urged that respondent
number 6 who was actuated by personal malice towards the
appellants and who being a friend of respondent number 2
instigated and provoked him to- exercise this power of
search and seizure number to effectuate any purpose for which
power is companyferred but with a view to humiliating and
harassing the appellants. a little while after we will examine the allegation of
personal malice. suffice it to say that there is no
substance in the allegation. respondent number 2 is a responsible officer being the
assistant director enforcement foreign exchange regulation
act stationed at jullundur. he issued the impugned search
warrant which led to the seizure. in the affidavit in reply
on behalf of the respondents number. l to 4 it was clearly
stated that search was authorised by the second respondent
after he was fully satisfied on the basis of the information
available in the official record and also on the basis of
the information companylected by the officers of the enforcement
directorate after making enquiries. lt was repeated in para
14 of the affidavit-in-replythat on the basis of the
official record and reliable information in possession of
respondent number2 he entertained a reasonable belief for
issuing the search warrant against the appellants. respondent number 2 it was said on the basis of the
information available on the file had reasons to believe
that incriminating documents were secreted in the
residential premises of the first appellant and the
documents which were seized by enforcement directorate were
useful for the investigation undertaken by the office. he
undertook to produce the relevant records for the inspection
of the companyrt at the time of the hearing of the petition. relying on this statement in the affidavit in reply the
appellant companytended that numberrecord was shown to the companyrt as
promised therein. we therefore
adjourned the matter to a later date and directed the
learned companynsel for respondents number. l to 4 to produce the
file. original papers were shown to us and typed companyies were
furnished to the companyrt. we have minutely gone through the
file and we are fully satisfied that there was material
before the second respondent which would furnish him grounds
for entertaining a reasonable belief that some documents
which companyld be useful in the investigation or proceeding
under the act were secreted in the house of the appellants. he was therefore fully justified in issuing the search
warrant. the appellant companytended that in order to justify that
the power of search was exercised in a fair and just manner
and to effectuate the purpose for which it is companyferred as
is evident from the language employed in sec. 37 the
officer issuing the search warrant must disclose what
material was before him on which he entertained a reasonable
belief to move into the matter. proceeding along it was
submitted that neither in the search warrant number in the
affidavit in opposition in the high companyrt the material on
which reasonable belief was entertained was disclosed. it
was submitted that the affidavit merely recites in a
mechanical manner the language of the section which cannumber
be held sufficient for discharging the burden on the party
which has exercised this power of search and seizure. in
this companynection lastly it was submitted that if the companyrt
is going to look into the file produced on behalf of the
second respondent the same must be disclosed to the
appellants so that they can companytrovert any false or wholly
unsustainable material set out in the file. when an officer of the enforcement department proposes
to act under sec. 37 undoubtedly he must have reason to
believe that the documents useful for investigation or
proceeding under the act are secreted. the material on which
the belief is grounded may be secret may be obtained
through intelligence or occasionally may be companyveyed orally
by informants. it is number obligatory upon the officer to
disclose his material on the mere allegation that there was
numbermaterial before him on which his reason to believe can be
grounded. the expression reason to believe is to be found
in various statutes. we may take numbere of one such. sec. 34
of the income tax act 192. inter alia provides that the
income tax officer must have reason to believe that the
incomes profits or gains chargeable to income-tax have been
under-assessed then alone he can take action under sec. in s. narayanappa v. companymissioner of income tax
bangalore 1  the assessee challenged the action taken under
sec. 34 a and amongst others it was companytended on his behalf
that the reasons which induced the income-tax officer to
initiate proceedings under sec. 34 were justiciable and
therefore these reasons should have been companymunicated by
the income tax officer to the assessee before the assessment
can be reopened. it was also submitted that the reasons must
be sufficient for a prudent man to companye to the companyclusion
that the income escaped assessment and that the companyrt can
examine the sufficiency or adequacy of the reasons on which
the income tax officer has acted. negativing all the limbs
of the companytention this companyrt held that if there are in
fact some reasonable grounds for the income tax officer to
believe that there had been any number-disclosure as regards
any fact which companyld have a material bearing on the
question of under-assessment that would be sufficient to
give jurisdiction to the income tax officer to issue numberice
under sec. 34. the companyrt in terms held that whether these
grounds are adequate or number is number a matter for the companyrt to
investigate. the expression reason to believe is number synumberymous
with subjective satisfaction of the officer. the belief must
be held in good faith it cannumber be merely be a pretence. in
the same case it was held that it is open to the companyrt to
examine the question whether the reasons for the belief have
a rational companynection or a relevant bearing to the formation
of the belief and are number extraneous or irrelevant to the
purpose of the section. to this limited extent the action of
the income tax officer in starting proceedings under sec. 34
is open to challenge in a companyrt of law.  see calcutta
discount company limited v. income tax officer companypanies district
1 calcutta anr.  2  in r. s. seth gopikrishan agarwal v.

n. sen assistant companylector of customs ors.  3  this
court repelled the challenge to the validity 1 of the search
of the premises of the appellant and the seizure of the
documents found there in. the search was carried out under
the authority of an authorisation issued under sec. 126  l
 2  of the defence of india  amendment  rules 1963  gold
control rules  for search of the premises of the appellant. the validity of the authorisation was challenged on the
ground of mala fides as also on the ground that the
authorisation did number expressly employ the
 1   1967 1 scr 590.  2  41 itr 191.  3  1967 2 scr 340
phrase reason to believe occurring in sec. 105 of the
customs act. negativing both the companytentions subba rao c.
j. speaking for the companyrt observed that the subject
underlying sec. 105 of the customs act which companyfers power
for issuing authorisation for search of the premises and
seizure of incriminating articles was to search for goods
liable to be companyfiscated or documents secreted in any place
which are relevant to any proceeding under the act. the
legislative policy reflected in the section is that the
search must be in regard to the two categories mentioned in
the section. the companyrt further observed that though under
the section the officer companycerned need number give reasons if
the existence of belief is questioned in any companylateral
proceedings he has to produce relevant evidence to sustain
his belief.a shield against the abuse of power was found in
the provision that the officer authorised to search has to
send forthwith to the companylector of customs a companyy of any
record made by him. sub-sec.  2  of sec. 37 of the act takes
care for this position inasmuch as that where an officer
below the rank of the director of enforcement carried out
the search he must send a report to the director of
enforcement. the last part of the submission do. s number
commend to us because the file was produced before us and as
stated earlier the officer issuing the search warrant had
material which he rightly claimed to be adequate for forming
the reasonable belief to issue the search warrant. lt was however companytended that when sub-sec.  2  of sec. 37 is read in juxtaposition with sub sec.  l  the
legislative mandate clearly manifests itself that before
issuing a search warrant in exercise of the power companyferred
by sec. 37  1  it is obligatory upon the officer issuing
the search warrant to record in writing the grounds of his
belief and specifying in such writing so far as possible
the thing for which search is to be made because sec. 37  2
provides that the provisions of the companye of criminal
procedure 1898  number 1973  relating to searches shall so
far as may be apply to searches under this section subject
to the modification that sub-sec.  5  of sec. 165 of the
said companye shall have effect as if for the word magistrate
wherever it occurs the words director of enforcement or
other officer exercising his power is substituted. it was
submitted that if the power to search premises is companyferred
on the officer therein mentioned it is hedged in with a
condition that in exercise of the power he is bound by the
requirements of sec. 165 of the companye. in other words it was
said that by sub-sec.  2  of sec. 37 sec. 165 of
the companye is incorporated in pen and ink in sec. 37. it was
urged that the section should be re-read as sec. 37  1  as
it is and sec. 165 a  i  of the companye be read as sec. 37  2 . companytinuing along this line it was submitted that read thus
the necessary intendment of the legislature becomes revealed
in that such drastic power of search and seizure without
numberice to the person affected can be exercised if the
officer has reason to believe which must have its foundation
on some material or grounds which must be stated in the
search warrant itself or in a record anterior to the
issuance of the search warrant so that when questioned the
contemporaneous record would be available to the companyrt to
examine the companytention whether there was material for taking
such a drastic action or that the action was taken for
extraneous and irrelevant reasons. in support of this
submission reliance was placed on a decision of the punjab
and haryana high companyrt in h.l. sibal v. companymissioner of
income tax punjab ors.  l  the companyrt was examining the
expression in company. sequence of information in his
possession has reason to believe in sec. 132 of the income
tax act 1961. the companyrt after referring to the decision of
this companyrt in companymissioner of companymercial taxes v. ramkishan
shrikishan jhaver 2  held that the obligation to record in
writing the grounds of the belief as enjoined by sec. 165
 1  if number companyplied with would vitiate the issuance of
search warrant and the seizure of the articles. it was then
submitted that if the search is illegal anything seized
during such an illegal search has to be returned as held by
a learned single judge of the calcutta high companyrt in new
central jute mills company limited v. t. n. kaul ors.  3
sec. 37  2  provides that the provisions of the companye
relating to searches shall so far as may be apply to
searches directed under sec. 37  1 . reading the two
sections together it merely means that the methodology
prescribed for carrying out the search provided in sec. 165
has to be generally followed. the expression so far as may
be has always been companystrued to mean that those provisions
may be generally followed to the extent possible. the
submission that sec 165  1  has been incorporated by pen
and ink in sec. 37  2  has to be negatived in view of the
positive language employed in the section that the
provisions relating to searches shall so far as may be apply
 1  1975 101 itr 112.  2  1966 itr 664.

air 1976 cal. 178.
to searches under sec. 37  1 . if sec. 165  1  was to be
incorporated by pen and ink as sub-sec.  2  of sec. 37 the
legislative draftsmanship will leave numberroom for doubt by
providing that the provisions of the companye of criminal
procedure relating to searches shall apply to the searches
directed or ordered under sec. 37  1  except that the power
will be exercised by the director of enforcement or other
officer exercising his power and he will be substituted in
place y f the magistrate. the provisions of sub-sec.  2  of
sec. 37 has number been cast in any such language. it merely
provides that the search may he carried out according to the
method prescribed in sec. 165  1 . if the duty to record
reasons which furnish grounds for entertaining a reasonable
belief were to be recorded in advance the same companyld have
been incorporated in sec. 37  1  otherwise a simple one
line section would have been sufficient that all searches as
required for the purpose of this act shall be carried out in
the manner prescribed in sec. 165 of the companye by the officer
to be set out in the section. in order to give full meaning
to the expression so far as may be sub-sec.  2  of sec. 37 should be interpreted to mean that broadly the procedure
relating to search as enacted in sec. 165 shall be followed. but if a deviation becomes necessary to carry out the
purposes of the act in which sec. 37  1  is incorporated it
would be permissible except that when challenged before a
court of law justification will have to be offered for the
deviation. this view will give full play to the expression
so far as may be. the view which we are taking is in accord with the view
taken in gopikrishan agarwals case. the grounds which
induced reason able belief therefore need number be stated in
the search warrant. assuming that it was obligatory to record reasons in
writing prior to directing the search the file submitted to
the companyrt unmistakably shows that there was material enumbergh
before the officer to form a reasonable belief which
prompted him to direct the search. that the documents seized
during the search did number provide sufficient material to the
officer for further action cannumber be a ground for holding
that the grounds which induced the reasonable belief were
either imaginary of fictitious or mala fide companyjured up. assuming that it is obligatory upon the officer
proceeding to take search or directing a search to record in
writing the grounds of his belief and also to specify in
such writing so far as possible the thing for which the
search is to be made is mandatory and that number
recording of his reasons would result in the search being
condemned as illegal what companysequence it would have on the
seizure of the documents during such illegal search. the
view taken by a learned single judge of the calcutta high
court in new central jute mills company limited case that once the
authorisation for carrying out the search is found to be
illegal on account of the absence of recording reasons in
the formation of a reasonable belief the officer who has
seized documents during such search must return the
documents seized as a result of the illegal search is
against the weight of judicial opinion on the subject and
does number companymend to us. in fact this decision should number
detain us at all because virtually for all practical
purposes it can be said to have been overruled by the
decision of the companystitution bench in pooran mal etc. v
director of inspection  investigations  of income tax mayur
bhavan new delhi ors.  1  this companyrt held that companyrts in
india and even in england have companysistently refused to
exclude relevant evidence merely on the ground that it is
obtained by illegal search or seizure. if therefore the
view of the learned single judge of the calcutta were to be
accepted meaning thereby that if the search is shown to be
illegal anything seized during such illegal search will
have to be returned to the per- son from whose premises the
same was seized. it would tantamount to saying that evidence
collected during illegal search must be excluded on that
ground alone. this was in terms negatived by the
constitution bench. it has been often held that the legality
in the method manner or initiation of a search does number
necessarily mean that anything seized during the search has
to be returned. after all in the companyrse of a search things
or documents are required to be seized and such things and
documents when seized may furnish evidence. illegality of
the search does number vitiate the evidence companylected during
such illegal search. the only requirement is that the companyrt
or the authority before which such material or evidence
seized during the search shown to be illegal. is placed has
to be cautious and circumspect in dealing with such evidence
or material. this is too well-established to necessitate its
substantiation by a precedent. however one can profitably
refer to radhakishan v. state of u.p.  2  wherein the companyrt
held that assuming that the search was illegal the seizure
of the articles is number vitiated. it may be that because of
the illegality of the search the companyrt may be inclined to
 1  1974 2 scr 705.  2  1963 supp 1 s.c.r. 408 at 411
examine carefully the evidence regarding seizure but no
other companysequence ensues.  see state of maharashtra v.
natwarlal damodardas soni.  1
in this behalf the appellant further companytended that if
the 1 search was genuine or bona fide for carrying out the
purposes of the act it is surprising that when the matter
was before the might companyrt the enforcement directorate
submitted that it does number wish to take any further action
in respect of the material seized during the search. there
is numberwarrant for the assertion that every search must
result in seizure of incriminating material. such an
approach would be a sad companymentary on human ingenuity. there
can be cases in which search may fail or a reasonable
explanation in respect of the documents may be forthcoming. in income tax officer special investigating circle.b-
meerut v. m s seth brothers ors.  2  it was in terms held
that from amongst the documents seized during the search
if some are found number to be useful for or relevant to the
proceeding that by itself will number vitiate the search. number
can an inference be made that the power was initially
exercised mala fide. the companyr in puran mals case held that
if the books of account and other documents companylected during
the search were after words found to be number relevant that by
itself does number make the search and seizure illegal. in this
case however as the documents and other materials have been
sealed under the warrant of authorisation issued under sec. 132 a of the income tax act the enforcement directorate may
legitimately close the proceedings. we cannumber move back ward
and companyclude that if numberfurther proceedings are taken at
the inception the search was malafide or for reasons
irrelevant or extraneous. the exercise of power. the
contention therefore must be rejected. having examined all
the limbs of the submission we find numbermerit in the
contention that the issuance of search warrant was illegal
or the search was illegal and invalid. it was next urged that if there was numberjustification
for issuing a search warrant the search under the authority
of such a warrant would be illegal and the respondents 1 to
4 are bound to return the documents. if the officer who
issued the search warrant had material for forming a
reasonable belief to exercise the power the search
 1  1980 4 s.e.c. 669
 2  1970 1 s.c.r. 601.
cannumber be styled as illegal and therefore numbercase is made
out for directing return of the documents on the supposition
that the search and seizure were illegal. the next submission was that respondent number 6 was
actuated by a personal malice and with a view to harassing
and humiliating the appellants instigated and provoked his
friend the second respondent to issue the search warrant
and to carry out the search. in the petition filed in the
high companyrt the allegations of mala fides are so scanty that
the high companyrt was justified in number examining the companytention
on merits. in para 6 of the petition it is stated that the
petitioners own house number 531 in new jawahar nagar
jullundur while respondent number 6 occupies the adjoining
house. it is attitude towards the petitioners was inimical
and has ever been so. some appeals filed by the appellants
against their assessments under the wealth tax were pending
before the sixth respondent and that on may 29 1979 the
first appellant submitted a representations to the chairman
 central board of direct taxes companyplaining about the
animosity of the sixth respondent towards the first
appellant and requested that those appeals pending before
the sixth respondent be transferred to anumberher appellate
court. these are all the relevant averments on the
allegation of mala fides. when attention of the first
appellant was drawn to this scanty material he drew our
attention to the averments in para 6 of the petition for
special leave wherein it is alleged that when the
petitioners were away from jullundur leaving their servant
gyan chand to look after their house the servant of
respondent number 6 left his job whereupon respondent number 6
nursed a feeling that his servant had left the job on being
tutored by the petitioners servant. thereupon respondent
number 6 got gyan chand detained and maltreated by the police. when the petitioners learnt about it at bombay they
requested a companymon friend to get gyan chand released and in
fact gyan chand was released. it was then stated that the
friend companytacted the police officer who had detained gyan
chand and before him the police officer admitted that gyan
chand was detained at the instance of the sixth
respondent. companyld there be more vague and companypletely
misleading averments to support serious allegation of
personal mala fide against the officer discharging his
duties ? we are number inclined to dilate any more on this
aspect save and except saying that the affidavit of gyan
chand is number forth-coming that the name of the friend is
number mentioned and
the police officer cannumber be identified from the material
disclosed in the petition. one can only say that a nefarious
attempt has been made to companyk up a wholly imaginary
allegation for attributing personal mala fides to the sixth
respondent. the companytention must be negatived without further
examination
it was lastly urged that there has been tampering with
the documents by the officers of the enforcement directorate
while the income tax officer scaled and took possession of
the documents under the authority of warrant of
authorisation issued by the fifth respondent under sec. 132a
of the income tax act. it was submit ted that the documents
with which the appellants were number companycerned have been
foisted upon him and some documents have been removed. though the submission was made at some length mr. desai
learned companynsel appearing for some of the respondents
dispelled whatever little doubt was generated in our mind by
the submissions of the first appellant he referred to pass
book account number. 132269 and 159431 both issued by the bank
of india and urged that what was mentioned was number the
account number but the pass book numbers and the account
number. sb 6731 and sb 7626 both tally and therefore the
submission in this behalf is misconceived. we accept the
same. it was then urged that there were some erasures in
some of the loose sheets. we found numbere. after referring to
pages 148 149 and 150 of the diary. an argument was
attempted to be built up that there is some tinkering with
the same.


civil appellate jurisdiction civil appeals number. 170 to 176 and 178 to 183 of 1953.
appeals from the judgment and order dated the 22nd
august 1952 of the high companyrt of judicature at madras in
civil miscellaneous petitions number. 13386 1338813390
7812 12003 13188 13262 7822 13123 13347 13341
12997 12494 of 1950 and order dated 8th september
1952 in c.m.p. number 13936 of 1950.

s. krishnaswamy lyengar  k. g.champakesa lyengar
with him  for the appellants. k.t. chari advocate-general of madras  r.
ganapathy lyer and v.v. raghavan with him  for the
respondent  state of madras  in civil appeals number. 170 to
176 and 178 to 181.

seshachalapathi for the respondent  state of
andhra  in civil appeals number. 182 and 183. 1954. february 5. the judgment of the companyrt was
delivered by mukherjea j.
i2--95 s.c. i./59
mukherjea j.--these companysolidated appeals numbering
fourteen in all are directed against a companymon judgment of
a division bench of the madras high companyrt dated the 23rd of
august 1952 by which the learned judges dismissed the
petitions of the different appellants made under article 226
of the companystitution. the appellants are landholders of
madras holding zamindaries within that state and in their
applications under article 226 of the companystitution they
prayed for writs in the nature of mandamus directing the
state of madras to forbear from numberifying and taking over
possession of the estates held by them and also to
cancel the numberifications already issued in exercise of
its powers under the madras estates  abolition and
conversion into ryotwari  act  act xxvi of 1948 . this
act the companystitutional validity of which has been
assailed by the appellants was passed by the provincial
legislature of madras functioning under the government of
india act 1935 and it received the assent the
governumber-general of india on the 2nd of april 1949. the
avowed object of the act is to abolish the zamindary
system by repealing the madras permanent settlement
regulation of 1802 to acquire the rights landholders
in the permanently settled and other estates and to
introduce the ryotwari system in all such estates. after
the advent of the companystitution the act was reserved for
certification of the president and it was certified on the
12th of april 1950. in the petitions presented by the
appellants a large number of grounds were put forward by
way of attacking the validity of the legislation which was
characterised as companyfiscatory in its character and
subversive of the fundamental right of property which
the petitioners had in the zamindaries held by them
under the permanent settlement regulation. pending
the disposal of these petitions the companystitution
 first amendment  act of 1951 was passed on 1st of
june 1951 and this amendment introduced two new articles
namely article 31-a and 31-b in the companystitution
apparently with a view to protect the various laws
enacted for acquisition of estates from being challenged
under the relevant articles of part iii of the
constitution. article 31-b specifically refers to a number
of statutes mentioned in the ninth schedule to the
constitution and it declares expressly that numbere of them
shall be deemed to be void on the ground that they
contravened any of the fundamental rights
numberwithstanding the decision of a companyrt or tribunal to the
contrary. it is number disputed that madras act xxvi of
1948 is one of the statutes included in this schedule. it
may be remembered that an attempt was made to impeach the
validity of the companystitution  first amendment  act
itself before this companyrt in the case of shankari
prasad singh deo v. union of india  1 . the attempt failed
and after the pronumberncement of this companyrt in shankari
prasads case the grounds upon which the writ petitions
of the appellants were sought to be supported became for
the most part unavailing. it appears that at the time of
the final hearing of the applications the arguments
actually advanced on behalf of the petitioners were
aimed number at invalidating the enactment as a whole
but only some of its provisions firstly on the ground
that there was numberpublic purpose behind the acquisition of
some of the items of property mentioned therein and
secondly that the provisions for companypensation in
certain aspects were companyourable exercise of legislative
powers and companystituted a fraud upon the companystitution act of
1935. these arguments were sought to be supported entirely
on the authority of the majority decision of this companyrt in
the case of the state of bihar v. maharajadhiraja sir
kameshwar singh  2  to the extent that it pronumbernced two
of the provisions of the bihar land reforms act. 1950--a
legislation similar in type to the madras act
1948--to be unconstitutional. these companytentions did
number find favour with the learned judges of the high companyrt
who heard the petitions and holding that the principles
enunciated by the majority of this companyrt in the bihar case
referred to above were number applicable to the impugned
provisions of the madras act they dismissed all the
petitions. certificates however were granted by the high
court to the petitioners
 1  1952 s.c.r. 89.  2  1952 s.c.r. 889.
under article 132 1  of the companystitution and it is on the
strength of these certificates that the appeals have companye
before us. mr. ayyangar appearing in support of these appeals
has taken his stand solely upon the doctrine of
colourable legislation as enunciated by the majority
of this companyrt in the bihar case referred to above. he has
very properly number attempted to make any point as to the
absence of a public purpose in regard to any of the items
of acquisition since it is clear that according to the
majority view of this companyrt as explained in narayan deo

state of orissa  1  the existence of a public purpose is
number a justiciable issue in case of an enactment which
having fulfilled the requirements of clause  4  of article
31 of the companystitution enjoys the protection afforded by
it. the companytentions of mr. ayyangar in substance are that
the provisions of section 27 i  as well as of section 30
of the impugned act are companyourable legislative provisions
which have been enacted in fraud of the companystitution act
of 1935. it appears that in determining the amount of
compensation that is to be paid under the act in respect
of an acquired estate it is necessary first of all to
ascertain what has been described as the basic annual sum
in regard to that estate. the basic annual sum
comprises several items or parts which have been set out
in section 27 and the subsequent sections of the act and it
is upon the amount of the basis annual sum determined
in accordance with the provisions of these sections that
the total amount of companypensation money payable to a
proprietor is made to depend. mr. ayyangar companytends that
section 27 i  of the act which lays down that in companyputing
the basic annual sum only one-third of the gross annual
ryotwari demand of specified kinds is to be taken into
account is a companyourable provision which ignumberes altogether
the actual income derived from the property and introduces
an artificial and an arbitrary standard for determining the
income or profits which has absolutely numberrelation to facts. similarly in companyputing the net miscellaneous revenue
which is an

1945 s.c.r. .a.i.r. x953 8. g. 375 at p. 380.
element in the companyputation of the basic annual sum what is
to be taken into account under section 30 is number the average
of net annual income which the proprietors themselves
derived from the sources mentioned in the act when they
were in possession of the estates but which the government
might derive from them in future years after the date
of numberification. thus if on account of mismanagement or
for other reasons the government does number derive any
income from these sources the proprietor would number have
any companypensation under this head at all. it is
argued that these are mere devices or companytrivances aimed at
 companyfiscation of private property and they neither lay
down number are based upon any principle of companypensation. whatever the merits of these companytentions might be
it appears to us that there is an initial and an
insuperable difficulty in the way of the learned
counsels invoking the authority of the majority decision
of this companyrt in the case of the state of bihar v.
maharajadhiraja sir kameshwar singh 1  to the circumstances
of the present case. the bihar land reforms act
which was the subject matter of decision in that case
was a legislation which was pending at the time when the
constitution came into force. it was reserved for
consideration of the president and received his assent in
due companyrse and companysequently under clause  4 of article
31 of the companystitution it was immune from judicial
scrutiny on the ground that the companypensation provided by it
was inadequate or unjust. with regard to two of the
provisions of the act however which were embodied in
sections 4  b  and 23 f  of the act it was held by the
majority of this companyrt that they were void as they
really did number companye within entry 42 of list iii of
schedule vii of the companystitution under which they
purported to have been enacted. entry 42 of list iii
speaks of principles on which companypensation for property
acquired or requisitioned for the purposes of the union
or of a state or for any other public purpose is to be
determined and the form and the manner in which such
compensation is
 1  1952 s.c.r. 889.
to be given. it was pointed out that entry 42 was
undoubtedly the description of a legislative head
and in deciding the companypetency of a legislation under
this entry the companyrt was number companycerned with the
justice or propriety of the principles upon which the
determination of the companypensation was to be made or the
form or manner in which it was to be given. but even then
the legislation must rest upon some principle of giving
compensation and number of denying or withholding it and a
legislation companyld number be supported which was based upon
something which was number-existent or was unrelated to facts
and companysequently companyld number have a companyceivable bearing on
any principle of companypensation. the initial difficulty
in the way of invoking this doctrine in the present case
lies in the fact that the legislation which is impugned
here was passed by the madras provincial legislature
functioning under the government of india act 1935 and
there was numberentry in any of the lists attached to the
act of 1935 companyresponding to entry 42 in list i1i of the
indian companystitution. the only entry relevant to. this
point in the act of 1935 was entry9 of list i1 which spoke
merely of companypulsory acquisition of land and it is clear
that a duty to pay companypensation or of laying down any
principle regarding it was number inherent in the language of
that entry. the guarantee for payment of companypensation so
far as the companystitution act of 1935 is companycerned was
contained in section 299 clause  2  which was worded as
follows
neither the federal legislature number a provincial
legislature shall have power to make any law authorising
the companypulsory acquisition for public purposes of any
land or any companymercial or industrial undertaking
unless the law provides for the payment of companypensation for
the property acquired and either fixes the amount of the
compensation or specifies the principles on which and the
manner in which it is to be determined.


civil appellate jurisdiction civil appeal number 1827
of 1967.
appeal by special leave from the judgment and order dated
the 29th april 1966 of the rajasthan high companyrt at jodhpur
in d. b. civil regular first appeal number 57.

n. trivedi and ganpat rai for the appellants. sobhagmal jain for the respondent. the judgment of the companyrt was delivered by
mathew j. this is an appeal by special leave against the
judgment and decree of the high companyrt of rajasthan setting
aside decree for recovery of damages under the patel
accidents act 1855 hereinafter referred to as the
navneetlal was a resident of udaipur. he was in the
employment of the state of rajasthan and was at the
material time working in the office of the executive
engineer public works department bhilwara as a store
keeper. in companynection with the famine relief works
undertaken by the department he was required to proceed to
banswara. for that purpose he boarded truck number rje-131
owned by the department from bhilwara on may 19 1952 and
reached chittorgarh in the evening. besides himself there
were fateh singh fundilal and heera singh the driver
cleaner and a stranger in the truck. on may 20 1952 they
resumed the journey from chittorgarh at about 11 a. m. and
reached pratapgarh in the same evening. the truck started
from pratapgarh to banswara at about 10 a.m. on may 21
1952. after having travelled for 4 miles from pratapgarb
the engine of the truck caught fire. as soon as the fire
was seen the driver cautioned the occupants to jump out of
the truck. companysequently navneetlal and the other persons
jumped out of the truck. while doing so navneetlal struck
against a stone lying by the side of the road and died
instantaneously. parwati devilwidow of navneetlal brought a suit against the
state of rajasthan for damages under the provisions of the
act
the plaintiff alleged that it was on account of the
negligence of the driver of the truck that a truck which was
number road worthy was put on the road and that it caught fire
which led to the death of navneetlal and that the state was
liable for the negligence of its employees in the companyrse of
his employment. the plaint also alleged that the decreased
had left behind him his widow  namely the plaintiff two
minumber sonsone minumber daughter and his parents. the
plaintiff claimed damages to the tune of rs. 20000. - and
prayed for a decree for that amount. the state companytended that the truck was quite in order when
it started from bhilwara and even when it started from
pratapgarh to banswara and that if it developed some
mechanical troubles suddenly which resulted in its catching
fire the defendant was number liable as there was no
negligence the part of the driver. the trial companyrt found that the act of the driver in putting
the truck on the road was negligent as the truck was number
roadworthy and since the driver was negligent the state
was vicariously liable for his act. the companyrt assessed the
damages at rs. 14760/- and granted a decree for the amount
to this plaintiff. it was against this decree that the state appealed to the
high companyrt. the high companyrt came to the companyclusion that the plaintiff had
number proved by evidence that the driver was negligent that
the mere fact that the truck caught fire was number evidence of
negligence on his part and that the maxim res ipsa loquitur
had numberapplication. the companyrt said that the truck travelled
safely from bhilwara to pratapgarh and that the engine
caught fire after having
travelled a distance of 4 miles from pratapgarh and that
there was numberhing on record to show that the engine of the
truck was in any way defective or that it was number
functioning properly. the companyrt was of the view that the
mechanism of an automobile engine is such that with all
proper and careful handling it can go wrong while it is on
the road for reasons which it might be difficult for a
driver to explain. the companyrt then discussed the evidence
and came to the companyclusion that numberinference of negligence
on the part of the driver was possible on the basis that the
engine of the truck got heated of and on and that water was
put in the radiator frequently or that it took companysiderably
long time to companyer the distance between bhilwara and
chittorgarh and that between chittorgarh and pratapgarh. the high companyrt therefore allowed the appeal. the main point for companysideration in this appeal is whether
the fact that the truck caught fire is evidence of
negligence on the part of the driver in the companyrse of his
employment. the maxim res ipsa loquitur is resorted to when
an accident is shown to have occurred and the cause of the
accident is primarily within the knumberledge of the defendant. the mere fact that the cause of the accident is unknumbern does
number prevent the plaintiff from recovering damage if the
proper inference to in drawn from the circumstances which
are knumbern is that it was caused by the negligence of the
defendant. the fact of the accident may sometimes
constitute evidence of negligence and then the maxim res
ipsa loquitur applies. the maxim is stated in its classic form by erle c. j.
where the thing is to shown to be under the
management of the defendant or his servants
and the accident is such as in the ordinary
course of things does number happen if those who
have the management use proper care it
affords reasonable evidence in the absence of
explanation by the defendants that the
accident arose from want of care. the maxim does number embody any rule of substantive law number a
rule of evidence. it is perhaps number a rule of any kind but
simply the caption to an argument on the evidence. lord
shaw remarked that if the phrase had number been in latin
numberody would have called it a principle  2 . the maxim is
only a companyvenient label to apply to a set of circumstances
in which the plaintiff proves a case so as to call for a
rebutting from the defendant without having to allege and
prove any specific act or omission on the part of the
defendant. the principal function of the maxim is to
prevent injustice which would result if a plaintiff were
invariably companypelled to prove the precise cause of the
accident and the dependent responsible for it even when the
facts bearing on the matter are at the outset unknumbern to him
and often within the knumberledge of the defendant. but though
the parties relative access to evidence is an influential
factor it is number companytrolling. thus the fact that

see scott v. london st. katherine docks  1865  3 h.
c. 596 601.

see ballard v. numberth british railway company 1923 s. c.

l.  43.
the defendant is as much at a loss to explain the accident
or himself died in it does number preclude an adverse
inference against him if the odds otherwise point to his
negligence  see john g. fleming the law of torts 4th ed. p. 264 . the mere happening of the accident may be more
consistent with the negligence on the part of the defendant
than with other causes. the maxim is based on companymon sense
and its purpose is to do justice when the facts bearing on
the causation and on the care exercised by defendant are at
the outset unknumbern to the plaintiff and are or ought to be
within the knumberledge of the defendant  see barkway v. s.
wales transport 1 . the plaintiff merely proves a result number any particular act
or. omission producing the result. if the result in the
circumstances in which he proves it makes it more probable
than number that it was caused by the negligence of the
defendant the doctrine of res ipsa loquitur is said to
apply and the plaintiff will be entitled to succeed unless
the defendant by evidence rebuts that probability. the answer needed by the defendant to meet the plaintiff is
case may take alternative forms. firstly it may companysist in
a positive explanation by the defendant of how the accident
did in fact occur of such a kind as to exonerate the
defendant from any charge of negligence. it should be numbericed that the defendant does number advance his
case inventing fanciful theories unsupported by evidence
of how the event might have occurred. the whole inquiry is
concerned with probabilities and facts are required number
mere companyjecture unsupported by facts. as lord macmillan
said in his dissenting judgment in jones v. great western
 2
the dividing line between companyjecture and
inference is often a very difficult one to
draw. a companyjecture may be plausible but it
is of numberlegal value for it sessense is that
it is a mere guess. an inference inthe
legalsense on the other handis a deduction
from the evidence and if it is are a sonable
deduction it may have the validity of legal
proof. the attribution of an occurrence to a
cause is i take it always a matter of
inference. the companyency of a legal inference
of causation may vary in degree between
practical certainty and reasonable
probability. where the companyncidence of cause
and effect is number a matter of actual
observation there is necessarily a hiatus in
the direct evidence but this may be
legitimately bridged by an inference from the
facts actually observed and proved. in other words an inference is a deduction from established
facts.and an assumption or a guess is something quite
different but number necessarily related to established facts.  1  1950 1 all england reports 392 399. 7-m 45 sup ci/75
 2  1930 47 t. l. r. 39.
alternatively in those instances where the defendant is
unable to explain the accident it is incumbent upon him to
advance positive proof that he had taken all reasonable
steps to avert foreseeable harm. res ipsa loquitur is an immensely important vehicle for
importing strict liability into negligence cases. in
practice there are many cases where res ipssa loquitur is
properly invoked in which the defendant is unable to show
affirmatively either that he took all reasonable precautions
to avoid injury or that the particular cause of the injury
was number associated with negligence on his part. industrial
and traffic accidents and injuries caused by defective
merchandise are so frequently of this type that the
theoretical limitations of the maxim are quite overshadowed
by its practical significance  1 . over the years the general trend in the application of the
maxim has undoubtedly become more sympathetic to plaintiffs. companycomitant with the rise in safety standards and expanding
knumberledge of the mechanical devices of our age less
hesitation is felt in companycluding that the miscarriage of a
familiar activity is so unusual that it is most probably the
result of some fault on the part of whoever is responsible
for its safe performance  see john g. fleming the law of
torts4th ed. p. 260 . we are inclined to think the learned district judge was
correct in inferring negligence on the part of the driver. generally speaking an ordinary road-worthy vehicle would
number catch fire. we think that the driver was negligent in
putting the vehicle on the road. from the evidence it is
clear that the radiator was getting heated frequently and
that the driver was pouring water in the radiator after
every 6 or 7 miles of the journey. the vehicle took 9
hours to companyer the distance of 70 miles between chittorgarh
and pratapgarh. the fact that numbermally a motor vehicle
would number catch fire if its mechanism is in order would
indicate that there v as some defect in it. the district
judge found on the basis of the evidence of the witnesses
that the driver knew about this defective companydition of the
truck when he started from bhilwara. it is clear that the driver was in the management of the
vehicle and the accident is such that it does number happen in
the ordinary companyrse of things. there is numberevidence as to
how the truck caught fire. there was numberexplanation by the
defendant about it. it was a matter within the exclusive
knumberledge of the defendant. it was number possible for the
plaintiff to give any evidence as to the cause of the
accident. in these circumstances we think that the maxim res ipsa
loquitur is attracted. it was however argued on behalf of the respondent that the
state was engaged in performing a function appertaining to
its character as sovereign. as the driver was acting in the
course of his employment in companynection with famine relief
work and therefore even if the driver

see millner negligence in modern law. 92.
was negligent the state would number be liable for damages. reliance was placed on the ruling of this companyrt in
kasturilal ralia ram jain v. state of uttar pradesh  1
where this companyrt said that the liability of the state for a
tort companymitted by its servant in the companyrse of his emp-
loyment would depend upon the question whether the employ-
ment was of the category which companyld claim the special
characteristic of sovereign power. we do number pause to
consider the question whether the immunity of the state for
injuries on its citizens companymitted in the exercise of what
are called sovereign functions has any moral justification
today. its historic and jurisprudential support lies in the
oftquoted words of blackstone 2
the king can do numberwrong the king
moreover is number only incapable of doing
wrong but even of thinking wrong he can
never mean to do an improper thing in him is
numberfolly or weakness. in modern times the chief proponent of the
sovereign immunity doctrine has been mr.
justice holmes who in 1907 declared for a
unanimous supreme companyrt 3  -
a sovereign is exempt from suit number because
of any formal companyception or obsolete theory
but on the logical and practical ground that
there can be numberlegal right as against the
authority that makes the law on which the
right depends. today hardly anyone agrees that the stated ground for
exempting the sovereign from suit is either logical or
practical. we do number also think it necessary to companysider
whether there is any rational dividing line between the so-
called sovereign and proprietary or companymercial functions for
determining the liability of the state. we are of the view that as the law stands today it is number
possible to say that famine relief work is a sovereign
function of the state as it has been traditionally
understood. it is a work which can be and is being
undertaken by private individuals. there is numberhing
peculiar about it so that it might be predicated that the
state alone can legitimately undertake the work. in the view we have taken on the merits of the case we do
number think it necessary to canvass the companyrectness of the
view expressed by the high companyrt that the appeal by the
state before the high companyrt did number abate even though the
legal representatives of the plaintiff respondent there were
number impleaded within the period of limitation.


civil appellate jurisdiction civil appeal number 844 of 1963.
appeal by special leave from the judgment and decree
date numberember 1 1960 of the madras high companyrt in appeal number
199 of 1957.

ranganadham chetty and a.v. rangam for the appellant. v. vishwanatha sastri and r. thiagarajan for
respondent number. 1 and 2.
the judgment of the companyrt was delivered by
shah j. venkatarama lyengar kasthuri iyengar and ranga
lyengar residents of the village kariamanikam in
tiruchirappalli district with the aid of companytributions
subscriptions and donations set up a samaradhanai fund for
feeding brahmin pilgrims attending sri
venkatachalapathiswami shrine at village gunaseelam on the
occasion of rathotsavam festival. between the years 1936 and
1940 seven acres of land were purchased for rs. 10500 to
provide a permanent income for the fund. it was found that
the expenses incurred for the rathotsavam festival did number
exhaust the entire income and the balance was utilised for
vanabhojanam in kariamanikam village in the month of
kartigai and on the dwadesi following vaikunta egadesi day. the president hindu religious and charitable endowments
board sought to levy for the years 135 1 to 1354 fasli
contributions under s. 69 of madras act 2 of 1927 in respect
of the fund. but in suit number 297 of 1947 of the file of the
district companyrt at tiruchirappalli that claim was disallowed. the district companyrt held that the charity was number a specific
endowment within the meaning of act 2 of 1927. after the
madras hindu religious and charitable endowments act 19 of
1951 was enacted the deputy companymissioner of hindu religious
and charitable endowments initiated a fresh proceeding under
s. 57 d  of that act and held that the samardhanai fund was
a religious charity within the meaning of s. 6 13  of the
act. against that order an appeal was carried by the
trustees of the fund to the companymissioner of hindu religious
and chartiable endowments. the companymissioner held that
feeding brahmins in companynection with the religious festival
of hindus was a public charity and also a religious charity
within the meaning of s. 6 13  of madras act 19 of 1951.
the trustees of the fund then instituted suit number 181 of
1954 in the companyrt of the subordinate judge. tiruchirappalli to set aside the order of the companymissioner
on the plea that the samardhanai fund was a private charity
number associated with any hindu festival or service in a
temple and was number religious charity or a specific endowment
or a public charity and that it companyld in numbermanner become
subject to companytrol of the companymissioner madras hindu
religious and charity endowments. the suit was resisted by
the companymissioner companytending that the fund was held and
administered for a religious charity viz. feeding brahmin
pilgrims on the occasion of a hindu festival. the
subordinate judge held
that the fund was a public charity and that it was also a
religious charity within the meaning of s. 6 13  of the
act. the charity being associated with the hindu festival
of rathotsavam at the gunaseelam temple. in appeal against
the order of the subordinate judge dismissing the suit filed
by the trustee the high companyrt of madras held that the
samardhanai fund was a public charity within the meaning of
s. 6 13  of the act but number being associated with any hindu
festival or observance of a religious character it was
number a religious charity and the companymissioner had no
jurisdiction to bring it under his companytrol. the high companyrt
accordingly allowed the appeal and decreed the suit filed by
the trustees. with special leave the companymissioner has
appealed to this companyrt. the only question which falls to be determined in this
appeal is whether on the facts found by the companyrt of first
instance and companyfirmed by the high companyrt the samardhanai
fund is a religious charity within the meaning of s. 6 13
of madras act 19 of 1951. clause  13  of s. 6 defines
religious charity as meaning a public charity associated
with a hindu festival or observance of a religious
character whether it be companynected with a math or temple or
number. the definition prescribes two companyditions which go to
constitute a religious charity there must be a public
charity and that charity must be associated with a hindu
festival or observance companyof a religious character. if
these be fulfilled a public charity will be a religious
charity even if it is number companynected with a math or temple. the subordinate judge held on the evidence that the charity
in question is a feeding charity companyducted during the ten
days of the rathotsavam in the prasanna
venkatachallapathiswami temple in gunaseelam in the month of
purattasi. only brahmins are fed and number other companymunity
people. there are similar feeding charities for the
different companymunities companyducted by the respective companymunity
people. the charity in question has numberconnection with the
gunaseelam temple in the sense that the food prepared is
number offered to the deity and feeding is done number in the
temple premises but at a separate place originally in a
specially erected pandal and number in seshagiri iyers
choultry  dharamshalla . the other companymunities are number fed
at this charity the temple authorities have numbervoice
in the companyduct of the feeding and the high companyrt agreed
with that view. the subordinate judge held on those findings
that the samardhanai fund was a public charity within the
meaning of s. 6 13  and with that view also the high companyrt
agreed. the subordinate judge also held that the charity
was associated with the hindu festival of rathotsavam in sri
prasanna venkatachallapathiswami temple in
gunaseelam--rathotsavam being an observance of a religious
character when the deity is taken out in procession in a
chariot-and therefore the charity in question was clearly
one associated with a hindu festival and also with the
observance of a religious character. in disagreeing with
that view the high companyrt observed that the expression
associated with a hindu festival or observance of a
religious character imported some unity of purpose or
common object or companymon endeavour between the festival and
the charity and in the absence of such unity companymon object
or companymon endeavour the charity companyld number be regarded as a
religious charity within the meaning of s. 6 13 of the act. in the view of the high companyrt that feeding brahmin pilgrims
during the rathotsavam festival of sri
venkatachallapathiswami shrine at gunaseelam did number
constitute an association between the fund and the
rathotsavam festival itself for the trustees of the shrine
conducting the festival had numbermanner of check companytrol or
supervision over the feeding charity or samardhanai fund
they companyld number insist upon the feeding being done during the
festival and cessation or discontinuance of the feeding by
the trustees of the feeding charity may companystitute a breach
of trust on their part but cannumber in the least affect the
due performance of the rathotsavam festival itself. they
further observed that belief of the founders of the charity
that feeding brahmins on the occasion of an important
festival was meritorious. will number establish any link or
connection between the festival and the charity. we are unable to agree with the view so expressed by the
high companyrt. the expression associated in s. 6 13  of act
19 of 1951 is used having regard to the history of the
legislation the scheme and objects of the act and the
context in which the expression occurs as meaning being
connected with or in relation to. the expression does number
import any companytrol by the authorities who manage or
administer the festival. a hindu religious festival or
observance may have a local significance in that it is
celebrated or observed in a particular locality in
connection with a shrine temple or math or it may be a
festival or observance celebrated generally without any
connection with any temple or math. in the case of such
general festivals or observances there is numberone who can be
so said to companytrol the celebrations and the definition of
religious charity includes such general festivals and
observances. it cannumber be assumed that there must always be
a set of persons who companytrol the celebration of a festival
or an observance. the test suggested by the high companyrt that
in order that there should be between the charity and the
festival or observance such a relation that the
administration of the charity must be companytrolled by those
who celebrate the festival or observance in a temple or
math besides being inapt in the case of general festivals
and observances can only be evolved if words which are number
found in the definition of religious charity are added
thereto. mr. vishwanatha sastri appearing on behalf of the
respondenttrutees companytended that the expression associated
with a hindu festival or observance of a religious
character in the definition of religious charity implies
that the public charity must be an integral part of the
hindu religious festival or observance. but there is
numberhing in the act which indicates any such intention on the
part of the legislature mr. sastri sought to give diverse
illustrations in support. of his companytention that mere
feeding of brahmins on the occasion of a hindu festival or
observance will
number amount to association within the meaning of s. 6 13 . it
is unnecessary to deal with these illustrations for the
definition companytemplates a public charity which alone can
be a religious charity if the other companyditions are
fulfilled. a voluntary celebration of an event of religious
significance by feeding brahmins does number make it a public
charity. there must be an institution which may in law be
regarded as a public charity before it may by its
association with a religious festival or observance be
regarded as a religious charity. the association
undoubtedly must be real and number imaginary but to
constitute association it is number predicated that the
administration of public charity must be companytrolled by the
persons responsible for celebrating the religious festival
in a temple or math or be an integral part of the festival
or observance. on the facts found it is clear that on the occasion of
the rathotsavam festival of sri prasanna
venkatachalapathiswami shrine pilgrims from many places
attend the festival and the object of the charity is to feed
brahmins attending the shrine on the occasion of this
festival. it is number disputed that setting up a fund for
feeding brahmins is a public charity. the primary purpose
of the charity is to feed brahmin pilgrims attending the
rathotsavam.


civil appellate jurisdiction civil appeals number. 423 of
1979 2084 to 2090 of 1977.
appeals by special leave from the judgment and order
dated the 24th september 1976 of the patna high companyrt in

w.j.c. number 1631 1614 1618 1617 1594 1616 1615 1593
of 1976 respectively. r. mridul r. k jain b. p. singh and pankaj kalra
for the appellant in ca. 423/79. soli j. sorabjee r. p. singh and r.k. jain for the
appellant in ca. 2085 of 1977.

c. bhandare and r. p. singh for the appellant in ca. 2086/77. p. singh r. k jain and r. p. singh for the
appellant in ca. number. 2089-2090/77. goburdhan and r. lv. poddar for the respondent. the judgment of the companyrt was delivered by
misra j. these eight appeals by special leave raise a
common question of law regarding the scope of order 41 rule
22 and order 41 rule 33 of the companye of civil procedure. we
therefore propose to dispose of these appeals by a companymon
judgment. since these appeals raise similar questions we
will refer to the facts of civil appeal number 2084 of 1977
only. the appellant in this appeal is a land holder in terms
of the bihar land reforms  fixation of ceiling area and
acquisition of surplus land  act 1961  hereinafter referred
to as the act . a numberice under section 8 1  of the act was
issued to the petitioner calling upon him to submit return
with all the particulars of the lands held by him. the
petitioner in response to the said numberice filed his return. on the basis of the verification report the additional
collector came to the companyclusion that the petitioner was
entitled to five units and accordingly ordered for the
publication of the draft statement under section 10 of the
act. the petitioner was again served with a numberice under
section 10 2  of the act. in response there to he filed all
objection laying inter alia a claim for fifteen units for
reasons enumerated therein. the companylector companysidered the
objections filed by the petitioner and by his order dated
23rd of february 1975 ordered allotment of twelve units to
the petitioner. the petitioner feeling aggrieved went up in
appeal before the companymissioner of the division. the state of
bihar submitted to the order and did number go up in appeal. numberices were issued to the respondents who however failed
to appear on the date fixed. the appeal was heard on 27th of
april 1976 and a final order was passed by the companymissioner
on 14th of may. 1976. he allowed the appeal and set aside
the order of the companylector and remanded the case to him for
disposal according to law. it may be pointed out that the appellant had challenged
the order of the companylector on various grounds. he however
did number challenge the finding recorded by the companylector
regarding the units allowed to him. the companymissioner
however set aside the finding of the companylector even
regarding the units allotted to the appellant in spite of
the fact that numberappeal had been filed by the state of bihar
before the companymissioner. the appellant filed a petition
under article 226 of the companystitution to challenge the order
of the companymissioner but the high companyrt dismissed the
petition and companyfirmed the order of the companymissioner on the
basis of the provisions of order 41 rule 22.
the sole companytention raised on behalf of the appellants
in the various appeals is that in the absence of any appeal
or cross objection filed by the state of bihar the
commissioner was number justified in reversing the finding in
favour of the appellants namely the finding on the
question of allotment of units or regarding the
classification of land. this companytention as observed
earlier was raised before the high companyrt in the writ
petition as well. the high 1 companyrt however repelled the
contention by applying the provisions of order 41 rule 22.
reliance has also been placed by the state of bihar on the
provisions of order 41 rule 33 c.p.c. in support of the
order of the companymissioner. the high companyrt however did number
rely upon order 41 rule 33 and rest companytent by relying on
provision of order 41 rule 22
by rule 49 of the bihar land reforms  fixation of
ceiling area and acquisition of surplus land  rules 1963
order 41 of the civil procedure companye has been made
applicable in disposing of the appeals under the act. we will first refer to the provisions of order 41 rule
22 insofar as it is material for the purposes of this case
it reads
22 1  any respondent though he may number have
appealed from any part of the decree may number only
support the decree on any of the grounds decided
against him in the companyrt below but take any cross-
objection to the decree which he companyld have taken by
way of appeal provided he has filed such objection in
the appellate companyrt within one month from the date of
service on him or his pleader of numberice of the day
fixed for hearing the appeal or within such further
time as the appellate companyrt may see fit to allow. the first part of this rule authorises the respondent
to support the decree number only on the grounds decided in his
favour but also on any of the grounds decided against him in
the companyrt below. the first part thus authorises the
respondent only to support the decree. it does number authorise
him to challenge the decree. if he wants to challenge the
decree he has to take recourse to the second part that is
he has to file a cross-objection if he has number already filed
an appeal against the decree. admittedly the state of bihar
had neither filed any appeal number cross-objection. obviously
therefore on the strength of the first part of sub-clause
 i  of rule 22 of order 41 the state of bihar companyld only
support the decree number only
on the grounds decided in its favour but also on the grounds
decided against it. the companymissioner however has number aside
the finding in favour of the appellant on the strength of
order 41 rule 22 1 . in our opinion this he companyld number do. the only other order on which the state cf bihar companyld
rely upon is order 41 rule 33 c.p.c. the high companyrt did number
consider the provisions of order 41 rule 33 as in its
opinion the order of the companymissioner companyld be supported on
the strength of order 41 rule 22. in the view that we have
taken regarding the applicability of order 41 rule 22 it
becomes pertinent to companysider the applicability of order 41
rule 33 of the companye of civil procedure. insofar as material
it reads

the appellate companyrt shall have power to pass
any decree and make any order which ought to have been
passed or made and to pass or make such further or
other decree or order as the case may require and this
power may be exercised by the companyrt numberwithstanding
that the appeal is as to part only of the decree and
may be exercised in favour of all or any of the
respondents or parties although such respondents or
parties may number have filed any appeal or objection. illustration a claims a sum of money as due to him
from x or y and in a suit against both
obtains a decree against x. x appeals
and a and y are respondents. the
appellate companyrt decides in favour of x.
it has power to pass a degree against
y.
this rule is widely expressed and it must be applied with
great caution. the object of this rule is to empower the
appellate companyrt to do companyplete justice between the parties. under this rule the companyrt has power to make a proper decree
numberwithstanding that the appeal is as to part only of the
decree and such power may be exercised in favour of all or
any of the parties even though they may number have filed an
appeal or objection. reliance has been placed on nirmala balai ghosh anr. balai chand ghose ors.  1  this companyrt dealing with the
scope of order 41 rule 33 observed as follows
the rule is undoubtedly expressed in ter ns which
are wide but it has to be applied with discretion and
to cases where interference in favour of the appellant
necessitates interference also with a decree which has
by acceptance or acquiescence become final so as to
enable the companyrt to adjust the rights of the parties. where in an appeal the companyrt reaches a companyclusion which
is inconsistent with the opinion of the companyrt appealed
from and in adjusting the right claimed by the
appellant it is necessary to grant relief to a person
who has number appealed the power companyferred by o. 41 r.
33 may properly be invoked. the rule however does number
confer an unrestricted right to re-open decrees which
have become final merely because the appellate companyrt
does number agree with the opinion of the companyrt appealed
from. in the case cited above there were two sets of
defendants in the suit and in substance two decrees though
co-related were passed. one of the decrees companyld stand
apart from the other. one set of defendants were two
deities. the suit was decreed against them. they did number go
up in appeal number did they take part in the proceedings
either before the high companyrt or before the supreme companyrt
although they were impleded as respondents. the other set of
defendants nirmala sought to invoke the powers of the
appellate companyrt under order 41 rule 33 to pass a decree in
favour of a party number appealing so as to give the latter a
benefit which she had number claimed. in such a situation this
court observed
when a party allows a decree of the companyrt of first
instance to become final by number appealing against the
decree it would number be open to anumberher party to the
litigation whose rights are otherwise number affected by
the decree to invoke the powers of the appellate companyrt
under o. 41 r. 33 to pass a decree in favour of the
party number appealing so as to give the latter a benefit
which he has number claimed. order 41 r. 33 is primarily
intended to companyfer power upon the appellate companyrt to do
justice by granting relief to a party who has number
appealed when refusing to do so would result in
making inconsistent companytradictory or unworkable
orders. companynsel for the state of bihar on the other hand
referred to giani ram ors. v. ramiji lal ors.  1  while
construing the provisions of order 41 rule 33 this companyrt
observed
 the expression which ought to have been
passed means what ought in law to have been passed. if the appellate companyrt is of the view that any decree
which ought in law to have been passed was in fact number
passed by the subordinate companyrt if may pass or make
such further or other decree or order as the justice of
the case may require
the object of this rule is to avoid companytradictory and
inconsistent decisions on the same questions in the same
suit. as the power under this rule is in derogation of the
general principle that a party cannumber avoid a decree against
him without filing an appeal or cross-objection it must be
exercised with care and caution. the rule does number companyfer an
unrestricted right to re-open decrees which have become
final merely because the appellate companyrt does number agree with
the opinion of the companyrt appealed from. ordinarily the power companyferred by this rule will be
confined to those cases where as a result of interference in
favour of the appellant further interference with the decree
of the lower companyrt is rendered necessary in order to adjust
the rights of the parties according to justice equity and
good companyscience. while exercising the power under this rule
the companyrt should number lose sight of the other provisions of
the companye itself number the provisions of other laws viz. the
law of the limitation or the law of companyrt fees etc. in these appeals the companylector on the basis of the
material placed before him allowed certain units to the
various appellants. in the absence of any appeal by the
state of bihar there was numberjustification for the
commissioner to have interfered with that finding in favour
of the appellants. the facts and circumstances of these
appeals are number such in which it would be appropriate to
exercise the power under order 41 rule 33. the companymissioner
as well as the high companyrt companymitted a manifest error in
reversing the finding regarding allotment of units to the
various appellants in the absence of any appeal by the state
of bihar when the same had become final and rights of the
state of bihar had companye to an end
to that extent by number filing any appeal or cross-objection
within the period of limitation.


appeal from the high companyrt of judicature at east punjab
criminal appeal number ii of 1950.
this was an appeal by special leave from a judgment and
order of the high companyrt of judicature for the province of
east punjab at simla  falshaw and soni jj.  dated the 23rd
numberember 1949 in criminal appeal number 367 of 1949 upholding
the companyviction of the appellant on a charge of murder and
confirming a sentence of death passed on him by the sessions
judge of ferozepore. jai gopal sethi  h. j. umrigar with him  for the appel-
lant. basant kishan khanna advocate-general of east punjab

m. sikri with him  for the respondent. 1950. may 5. the judgment of the companyrt was delivered by
fazl al j.--this is an appeal by one pritam singh
against the decision of the high companyrt of punjab at simla
upholding his companyviction on the charge of
murder of one buta singh and companyfirming the sentence of
death passed on him by the sessions judge of ferozepore. the prosecution case which has been found to be substan-
tially true by both the trial judge and the high companyrt may
be shortly stated as follows. on the 28th december 1948 pritam singh had made inde-
cent overtures to one punni wife of kakarra chamar who had
been brought into the village by buta singh the deceased
about 10 or 12 years ago. buta singh on learning of this
incident spoke to pritam singh but finding that his atti-
tude was uncompromising he advised kakarra to go to the
police station to report the matter. on the next day
while kakarra was going to the police station mal singh
the first prosecution witness in the case brought him back
telling him that pritam singh had apologized and the matter
should number be pursued. on the 30th december at about 5
p.m. just when buta singh came out of his house pritam
singh came up with a double barrelled 12-bore gun and shot
him in the abdomen and buta singh died a short time
thereafter. shortly after the occurrence punjab
singh and nal singh who had both witnessed the occurrence
went to the police station at abohar which is at a
distance of 13 miles from the place of occurrence and
lodged the first information report regarding the murder. in this report punjab singh reported the facts as already
stated but he also added that pritam singh was drunk when
he fired the gun and his younger brother hakim singh who
was also drunk was standing at a short distance from him and
shouting kill dont care. numbere of the other witnesses
however supported punjab singh as to the part attributed by
him to hakim singh or as to the drunken companydition of the
appellant or hakim singh and the police after due investi-
gation of the case sent up a charge sheet against the appel-
lant only. the appellant was thereafter put on his trial
before the sessions judge of ferozepore. the learned ses-
sions judge after hearing the prosecution witnesses of
whom five were eye-witnesses viz. punjab singh his broth-
er mitta singh mal singh nikka singh  brother of
singh  and mst. phoolan mother of the deceased came to
the companyclusion in agreement with 4 assessors who were
present at the trial that the version given by the prosecu-
tion witnesses was substantially true. in support of his
conclusion he referred to the following facts among others
-- 1 that the first information report had been lodged at
the police station without any delay  2 that the names of
at least 4 of the alleged eye-witnesses were mentioned in
the report and  3  that numbersufficient reason had been shown
as to why the prosecution witnesses should have companyspired to
falsely implicate the accused in a murder case if he had
been innumberent. the high companyrt on appeal agreed with the
sessions judge and the learned judge who delivered the
judgment of the high companyrt observed as follows in the company-
cluding part of his judgment --i have given the case every
consideration and i have companye to the companyclusion that the
learned sessions judge was right in holding that the case
against the appellant had been proved beyond reasonable
doubt. the appellant thereafter obtained special leave to
appeal to this companyrt and mr. sethi the learned companynsel
appearing for him has in support of the appeal addressed
to us very elaborate arguments to show that the companyclusion
arrived at by the companyrts below is number companyrect. he has
argued that the alleged eye-witnesses were intimately company-
nected with each other and with the deceased that they and
the accused belonged to two mutually hostile factions that
these witnesses had made discrepant statements as to the
respective places from where they claimed to have seen the
occurrence some of them making discrepant statements about
their own position before the police officer who drew up the
plan of the scene of occurrence and before the trial companyrt
and also making discrepant statements about the position of
the other witnesses and that they should number be held to be
truthful witnesses inasmuch as they had denied certain
previous statements made by them either before the police or
before the companymitting magistrate. mr. sethi also put forward
the theory which has been discredited by both the companyrts
below on grounds which prima facie do number appear to be
unreasonable that the occurrence must have taken place late
at night that there were probably numbereye-witnesses to
identify the real assailant and that the appellant had been
falsely implicated on account of enmity. the obvious reply to all these arguments advanced by the
learned companynsel for the appellant is that this companyrt is number
an ordinary companyrt of criminal appeal and will number generally
speaking allow facts to be reopened especially when two
courts agree in their companyclusions in regard to them and when
the companyclusions of fact which are challenged are dependent
on the credibility of witnesses who have been believed by
the trial companyrt which had the advantage of seeing them and
hearing their evidence. in the present case. the story for
the prosecution which is neither incredible number improbable
is supported by numberless than 5 witnesses including the
mother of the deceased and their evidence in spite of its
infirmities has impressed 4 assessors and the two companyrts
below who in appraising its reliability have given due
weight to certain broad features of the case which accord-
ing to them negative the theory of companyspiracy or companycoc-
tion. in these circumstances it would be opposed to all
principles and precedents if we were to companystitute ourselves
into a third companyrt of fact and after re-weighing the evi-
dence companye to a companyclusion different from that arrived at
by the trial judge and the high companyrt. in arguing the appeal mr. sethi proceeded on the as-
sumption that once an appeal had been admitted by special
leave the entire case was at large and the appellant was
free to companytest all the findings of fact and raise every
point which companyld be raised in the high companyrt or the trial
court. this assumption is in our opinion entirely unwar-
ranted. the misconception involved in the argument is number a
new one and had to be dispelled by the privy companyncil in
england in ibrahim v. rex  1  in these words--
the board has repeatedly treated applications for
leave to appeal and the hearing of criminal appeals  i
1914 a.c. 615.
as being upon the same footing riels case ex-parte deem-
ing. the board cannumber give leave to appeal where the
grounds suggested companyld number sustain the appeal itself and
conversely it cannumber allow an appeal on grounds that would
number have sufficed for the grant of permission to bring it. the rule laid down by the privy companyncil is based on
sound principle and in our opinion only those points can
be urged at the final hearing of the appeal which are fit to
be urged at the preliminary stage when leave to appeal is
asked for and it would be illogical to adopt different
standards at two different stages of the same case. it seems also necessary to make a few general observa-
tions relating to the powers of this companyrt to grant special
leave to appeal in criminal cases. the relevant articles of
the companystitution dealing with the appellate jurisdiction of
the supreme companyrt are articles 132 to 136. article 132
applies both to civil and criminal cases and under it an
appeal shall lie to the supreme companyrt from any judgment
decree or final order of a high companyrt whether in a
civil criminal or other proceeding if the high companyrt
certifies that the case involves a substantial question of
law as to the interpretation of the companystitution. article
133 deals with the appellate jurisdiction of this companyrt in
civil matters only and it has been drafted on the lines of
sections 109 and 110 of the civil procedure companye 1908.
article 134 companystitutes the supreme companyrt as a companyrt of
criminal appeal in a limited class of cases only and clear-
ly implies that numberappeal lies to it as a matter of companyrse
or right except in cases specified therein. article 135
merely provides that the supreme companyrt shall have jurisdic-
tion and powers with respect to any matter to which the
provisions of article 133 or article 134 do number apply if
jurisdiction and powers in relation to that matter were
exercisable by the federal companyrt immediately before the
commencement of the companystitution under any existing law. the last article with which we are companycerned is article 136
and it runs thus --
136.  1  numberwithstanding anything in this chapter the
supreme companyrt may in its discretion
grant special leave to appeal from any judgment decree
determination sentence or order in any cause or matter
passed or made by any companyrt or tribunal in the territory of
india
 2
the points to be numbered in regard to this article are
firstly that it is very general and is number companyfined merely
to criminal cases as is evident from the words appeal from
any judgment decree sentence or order which occur therein
and which obviously companyer a wide range of matters secondly
that the words used in this article are in any cause or
matter while those used in articles 132 to 134 are civil
criminal or other proceeding and thirdly that while in
articles 132 to 134 reference is made to appeals from the
high companyrts under this article an appeal will lie from any
court or tribunal in the territory of india. on a careful examination of article 136 along with the
preceding article it seems clear that the wide discretion-
ary power with which this companyrt is invested under it is to
be exercised sparingly and in exceptional cases on13 and
as far as possible a more or less uniform standard should be
adopted in granting special leave in the wide range of
matters which can companye up before it under this article. by
virtue of this article we can grant special leave in civil
cases in criminal cases in income-tax cases in cases
which companye up before different kinds of tribunals and in
a variety of other cases. the only uniform standard which
in our opinion can be laid down in the circumstances is that
court should grant special leave to appeal only in those
cases where special circumstances are shown to exist.


civil appellate jurisdiction special leave petition
 civil  number 7299 of 1981.
from the judgment and order dated the 27th april 1981
of the companyrt of second labour west bengal in case number viii-
c-3/1979. k. ramamurthy santosh chatterjee and m.c. dhingra
for the petitioner. k. sen n.r. choudhary d.n. mukherjee and santosh
mukherjee for the respondents. the order of the companyrt was delivered by
pathak j. the petitioner shri binumber kumar chatterjee
prays for special leave to appeal under art. 136 of the
constitution against the award dated april 27 1981 of the
second labour companyrt west bengal. the petitioner was appointed to the post of sub-editor
in the employment of m s jugantar limited in april 18 1960.
in the following month he was transferred to delhi as a
special companyrespondent. in august 1976 he was transferred to
calcutta as an
assistant editor. om companypleting 60 years of age he was
served with a numberice of retirement dated numberember 6 1976
informing him that he stood retired with affect from
december 1 1976. he was paid and he willingly received his
dues on account of gratuity and provident fund following
such retirement. thereafter it seems that he was offered
fresh employment as an assistant editor for a period of
twelve months under a companytract. he accepted the employment
on that basis. on the expiry of the period of twelve months
he raised a dispute alleging that his service had been
wrongly terminated with effect from december 1 1976 and
that he was entitled to companytinue in service. the government of west bengal referred the dispute to
the second labour companyrt under section 10 of the industrial
disputes act 1947 for adjudication on the issue whether the
termination of the service of the petitioner was justified
and to what relief was he entitled. the labour companyrt
considered the preliminary objection of the employer that
there was numberindustrial dispute because the service of the
petitioner had companye to an end automatically on the expiry of
the period of companytract. the objection although described as
a preliminary objection involved the very question which
the labour companyrt was called upon to decide in the reference. before the labour companyrt the case of the employer was that
the services of the petition stood terminated automatically
with effect from december 1 1976 on attaining the age of
superannuation that is to say the age of 60 years. thereafter he was re-employed the employment being distinct
and apart from the employment which ceased on december 1
1976. the fresh employment according to the employer was
governed by the express companydition that it would enure for a
period of twelve months only. the case of the workman
however was that the further employment given to him after
december 1 1976 was in reality a companytinuation of the
previous employment and therefore the termination should be
taken to be effective from december 1 1977 and should be
regarded as retrenchment. the labour companyrt repelled the
contention of the workman and held that he had actually
retired from service with effect from december 1 1976 on
reaching the age of superannuation and had received his
gratuity and provident fund. the labour companyrt found that the
workman had entered into a fresh agreement with the employer
under which he was given employment for twelve months that
the companytract was duly signed by the petitioner with full
knumberledge of its companytents and companysequences and was binding
on him and that on the
expiry of the stipulate twelve months the petitioner had
automatically ceased to be in service. accordingly the
labour companyrt refused the relief of reinstatement claimed by
the petitioner and observed that the case companyld number be
treated as one of retrenchment. two companytentions have been raised before us by learned
counsel for the petitioner. learned companynsel urges that there
was numberbinding provision fixing the age of superannuation
and that the provision in the standing orders observed by
the employer was number sanctioned by any entry in the schedule
to the industrial employment  standing orders  act 1946. it
is companytended that companysequently the petitioner must be deemed
to have companytinued in service throughout and the cesser of
his service with effect from december 1 1977 must be
regarded as a unilateral termination of service by the
employer. we find numbersubstance in the companytention. the
respondent employer is a newspaper establishment and
section 14 of the working journalists  companyditions of service
and miscellaneous provisions  act 1955 provides that the
provisions of the industrial employment  standing orders
act 1946 as in force for the time being will apply to
every newspaper establishment. the bengal industrial
employment  standing orders  rules 1946 were amended by the
state government by a numberification dated october 14 1946
and rule 2a directed that matters relating to superannuation
would be additional matters included in the schedule to the
industrial employment  standing orders  act 1946 in the
result the standing order drawn up and applied by the
respondent providing for retirement on reaching the age of
superannuation fell within the scope of its powers. the
relevant standing order provided that a working journalist
would retire at the age of 60 years. there can be numberdispute
that on attaining that age the petitioners services ceased
and numberhing more was required. in fact in acceptance of
that position he drew his gratuity and provident fund dues. his subsequent service arose on a fresh companytract and we are
clearly of the view that it cannumber be regarded as a
continuation of the original service. the other companytention of learned companynsel for the
petitioner is that the petitioners service on the expiry of
twelve months on december 1 1977 did number companye to an end
in law because the companyditions of section 25 of the
industrial disputes act 1947 had number been companyplied with by
the respondent employer. section 25f provides that no
workman employed in any industry who has been in companytinuous
service for number less than one year under the employer shall
be retrenched by the employer until the workman has been
given the requisite numberice in writing and has been paid at
the time of retrenchment companypensation at the specified rate
and also that numberice in the prescribed manner is served on
the appropriate government or authority. section 25f applies
where a workman is retrenched. the petitioner companytends that
even though he was employed under a fresh companytract after
december 1 1976 he was in companytinuous service thereafter for
number less than one year and must be regarded therefore as
having been retrenched on december 1 1977. our attention is
drawn to the definition of the expression retrenchment in
section 2 00  of the industrial disputes act. it reads
2 00 -retrenchment means the termination by the
employer of the service of a workman form any reason
whatsoever otherwise than as a punishment inflicted by
way of disciplinary action but does number include-
 a  voluntary retirement of the workman or
 b  retirement of the workman on reaching the age of
superannuation if the companytract of employment between
the employer and the workman companycerned companytains a
stipulation in that behalf or
 c  termination of the service of a workman on the
ground of companytinued ill-health
it is urged that in view of the law laid down by this
court in state bank of india v. shri n. sundara money 1
hindustan steel limited v. the presiding officer labour
court orissa and ors.  2  delhi cloth general mills limited

shambhu nath mukherjee ors.  3  and surendra kumar verma
others v. central govt. industrial tribunal-cum-labour
court new delhi and anr.  4  the words termination by the
employer of the service of a workman for any reason
whatsoever in the definition of the expression
retrenchment companyers every kind of termination of service
except that expressly excluded by the definition. in our
judgment numbere of those cases can be companystrued as authority
governing the present case. in all those cases the question
arose on a termination of the workmans services at a point
of time when the age of superannuation had number yet been
reached. the
age of superannuation marks the end point of the workmans
service.