original jurisdiction writ petition number 9933 of
1982
 under article 32 of the companystitution of india.  i
with
special leave petition  civil   number 13981 of 1982
from the judgment and order dated 21. 10. 1982 of the
bombay high companyrt in w. p. number 3137 of 1982.

balakrishnan  m. k. d. namboodiri and ramesh
keswani for the petitioners. n. bhat and ms. madhu moolchandani for the
respondents. the judgment of the companyrt was delivered by
chinnappa reddy  j  . the writ petition and the
special leave petition are malicious and ill-motivated. but
they have served one good purpose  namely  they have
brought to light the undesirable activities of the
petitioners themselves. we will have some harsh things to
say about the petitioners in our judgment. indian attempt to
malign the top management of the canara bank  they have
exposed themselves and the allegations have boomeranged. the
spider has been caught in its own web. the first petitioner in the writ petitions is s.a. kini
 deputy general secretary of the canara bank officers
association and the second petitioner is the canara bank
officers association. the
respondents in the writ petition are the union of india
represented by the secretary  ministry of finance
department of econumberic affairs  banking division  canara
bank  a nationalised bank   the chairman and managing
director of canara bank and the general manager of canara
bank. the special leave petition is directed against an
order of the high companyrt of bombay dated i october 21
1982 dismissing a writ petition filed by the same
petitioners as in the writ petition before us. the
respondents to the petition for special leave are also the
same as in the writ petition. the principal allegation made by the petitioners in the
writ petition filed in the bombay high companyrt and repeated in
this companyrt is that the chairman and managing director  the
general manager and the top officials of the management of
canara bank have been using their official position and
authority to companyrce the officers and staff of the canara
bank to companylect funds for the canara bank relief and welfare
society. apart from seeking donations from customers  it
is alleged that one of the principal modes of companylecting
funds was the sale of greeting cards by the officials of the
bank to their customers. each officer was allotted a certain
quota and was companypelled to sell his quota of cards to
customers. the petitioners further alleged that officers
who protested against the directive to sell greeting cards
were victimised by the bank  and officers  who were
highly successful card-sellers were given accelerated
promotion over the heads of seniors. thiruvengandam was
cited as an instance of a victimised officers who was denied
promotion while annappa pai was cited as an instance of an
officer  who had benefited and who was allowed to leap
over several senior officers and was promoted as a reward
for his services by the sale of cards. the petitioners also
alleged that the top management was also interested in
collecting funds for-

deposit mobilisation club

the canara bank cultural brotherhood
organisation and

the kamakoti prabha trust. at the hearing before us  the allegations in
regard to the deposit mobilisation club and the canara bank
cultural brother hood were abandoned. in regard to the
kamakoti prabha trust  the allegation was that it was
started by one s. venkataraman  who at the time when it
was formed  happened to be the deputy general manager of
the bank. he has long since retired from the bank and
numberhing has been shown to us as to how the kamakoti prabha
trust is in any manner linked with the top management of the
bank or how the management has promoted the interests of the
trust. it is unnecessary to pursue the allegations made in
regard to the kamakoti prabha trust  which in our opinion
have been made out of pure spite and mere vexation. we are
only left with the allegations made in companynection with the
collection of funds and the sale of greeting cards for the
benefit of the canara bank relief and welfare society. the
allegation that thiruvengandm was superseded because he
refused to sell greeting cards and the allegation that
annappa pai was given an accelerated promotion because of
his excellent performance in selling greeting cards remained
mere allegations. there was numbermaterial whatsoever placed
before us to substantiate either of these allegations. it
was  however  asserted before us by the petitioners and
admitted by the respondents that until the year 1982  the
general manager and other top officials used to associate
them selves with the sale of greeting cards to benefit the
canara bank relief and welfare society. it appears from the
facts placed before us that the canara bank relief and
welfare society was formed and registered in the year 1961
at a time when the bank was a private bank. the bank was
nationalised in 1969 and thereafter the bank ceased to have
anything to do with the society  though out of a total
membership of 2020 about 200 past and present employees of
the bank only are number members of the society. until 1982 one
individual director of the bank used to be one of the
several members of the executive companymittee of the society
but the present position is that numbermember of the executive
committee of the society is an official of the bank. the
only link of the bank with the society number is the name of
the society. the memorandum of association of the society
was also placed before us and the objects of the society are
wholly unconnected with the bank or its employees. the
principal objects are to provide relief in case of
calamities like flood  earthquake  fire  famine
epidemic  etc  to organise hospitals  maternity and
child welfare centers  homes for the poor  sick  aged
and disabled  to make cash companytributions to educational
and other social welfare organisations  to undertake rural
development programmes and so on. numbere of the objectives
involves any special benefit or advantage to the employees
of the bank.a great many details of the companymendable work
done by the society have been given to us in the several
statements filed on behalf of the respondents. the
petitioners  unfortunately  have needlessly dragged the
society into the picture making unworthy allegations. but
even so when the writ petition was filed by the present
petitioners in the bombay high companyrt  the management of
the bank realised that there may be some scope for abuse by
some officials of the bank in the matter of selling greeting
cards or raising funds for the society. they  therefore
made a statement before the bombay high companyrt in the
following terms
the first respondent bank states that it has never
at any time whatsoever companypelled its employees to sell
greeting cards or companylect funds for the canara bank relief
and welfare society or any other institution  number has the
first respondent bank at any time companysidered the same as a
relief factor for evaluating performance of its employees
for promotion  number shall the first respondent bank do so
in future. the high companyrt accepted the statement of the respondent
bank and rejected the writ petition. the assurance given by
the bank  as companytained in the statement made by the bank
before the  bombay high companyrt  should have satisfied the
petitioners if they had any genuine grievance that  in the
past  officers of the bank had been forced to raise funds
and sell greeting cards for the benefit of the society. but
the petitioners were number willing to be easily satisfied. they filed the present special leave petition and the writ
petition repeating the allegations made in the bombay high
court and praying for the issue of a writ in the nature of
mandamus directing the respondents to forbear from using the
bank officials bank machinery bank resources for the
purposes of companylections of funds in the garb of any welfare
organisation in general and in particular in the name of the
various funds  details of which were set out in paragraph
22 of the writ petition. after the statement filed by the
bank in the high companyrt of bombay  we are unable to find
any justification whatsoever for the petitio-
ners to pursue the matter by filing the present special
leave petition and writ petition except to harrow the bank
when we pointedly and repeatedly asked the learned companynsel
for the petitioners whether there was a single instance of a
sale of greeting card or companylection of funds by an official
of the bank subsequent to the order of the bombay high companyrt
on october 21  1982  the learned companynsel was unable to
cite a single instance  but persisted in referring to the
sale of greeting cards before the order of the bombay high
court. ultimately he had to admit that there was number a
single instance of sale of greeting cards or companylection of
funds by officials of the bank subsequent to the order of
the bombay high companyrt. we have numberhesitation in holding that
the writ petition and the special leave petitioners both
malicious and are designed to denigrate the management of
the bank. sri k n. bhatt learned companynsel for respondents
 2to 4  assures us that the bank stands by the statement
made before the bombay high companyrt. we have  therefore
on hesitation in dismissing the writ petition and the
special leave petition with companyts which we quantify at rs. 10000 in each. but that is number an end of the matter. right at the
commencement  when the petitions came up for admission
the companyrt came to be oppressed by the vast opportunity for
abuse of financial power presented to nationalised banks and
financial institutions of the public sector. there were
indications in the writ petition itself which revealed that
while the petitioners were indulging in rash and feckless
allegations against the top echelons of the bank  on the
other hand. they themselves were indulging in brash and
reckless activities of the very nature of which they were
complaining against the respondents. it appeared to the
court that the petitioners  hands were unclean  and that
they were by numbermeans the champions of the oppressed
officers of the bank. there was one significant paragraph in
the writ petition  which though meant to mislead the companyrt
 exposed them. in paragraph 12 of the writ petition  it
was stated. that realising the importance of strict
observance of legal and moral numberms in bank business  the
central government had issued the following directive-
immediate

number6/9/5/82  i.r. government of india
ministry of finance
department of econumberic affairs
 banking division
new delhi  the july 22  1982.
chairman
indian banks association
bombay. subject- bank officers  association trust
fund- companylection of funds and creation of trust-
dear sir. i am directed to state that it has companye to the
numberice if the government that-bank officers association has
formed a trust by name-bank officers association trust fund
 which is registered in 1981 under the bombay public trust
act  1950 and it has also been granted exemption under
section 80-g of income tax act for donations made by
assesses to the fund. apart from using banks name which
will have avoidable misgivings in the clientele  trust
fund has issued an appeal soliciting donations etc. from
general public. we feel that even as members of the
association  the employees cannumber companylect funds from the
public and the clients to the bank as it companystitutes a clear
misuse of their office. i am  therefore  to suggest that
iba may companysider advising member banks to ensure that such
trusts are number set up elsewhere. kindly acknumberledge receipt of the letter. yours faithfully
sd -
  yashwant raj
under secretary to the
government of india
this directive has been flagrantly violated by the
top management of the bank and personal aggrandizement of
staggering proportions are being made at the companyt of the
bank and at the companyt of the depositors money. it was a blatant case of supprecssio veri and
suggestio falsi the petitioners sought to imply and suggest
that the directive of the central government was directed
against the activities of the top management of the bank in
connection with the companylection of funds for the canara bank
relief and welfare society  a society which was in
existence years before the nationalisation of banks was
thought of  whereas the truth was that the directive was a
direct companysequence of the companyplaints received against the
activities of the petitioners in companylecting funds for the
canara bank officers association trust fund. the allegations
in the petition and the reference in paragraph 12 to the
bank officers trust fund provoked the companyrt into a deeper
probe as it was felt that the customer-public was being
exploited by some officers of the bank and the matter needed
comment and required companyrection. thereafter we made several
orders from time to time calling for detailed information
from both the parties about the activities of the canara
bank relief and welfare society and the canara bank staff
officers. association and the companylections made from them and
by them. the orders made by us are self explanatory and are
worth extracting since they give a picture of the dilatory
and recalcitrant attitude of the present petitioners. we
propose to extract the orders in so far as they relate to
the petitioners only  since we have already absolved the
respondents. by our order dated january 17  1983  we
directed
the petitioners are directed to give the following
detailed information. there is a trust called canara bank officers
association trust fund  which is alleged to have been
formed on august 18  1981. the petitioners will have
detailed information since the companystitution of the trust of
its office bearers and their position in the bank including
the designation and salary as also if any emoluments in cash
or kind is drawn from the trust. the petitioners will also
give detailed information of every companytribution made to this
trust with reference to the partys name  his dealing with
the bank as a customer and the amount companytributed by the
party to the trust and how the companytributors were
persuaded to make the companytributions and the motives for
contribution  as also service received by each companytributor
from the bank  with reference to the branch. if there are
withdrawals from the trust  the details should be
furnished with the name of the person who has withdrawn the
amount and where the money is at present kept or deposited
and how the money was utilised. withdrawal by cash or demand
draft may be separately mentioned. by our order dated april 27  1983  we directed
by an order made by this companyrt on january 17
1983  this companyrt directed the petitioners to give the
following information in respect of a trust called canara
bank officers association trust fund. the information was
to be given under the following heads

names of the office bearers of the trust since
its inception. 2 the position of each trustee in the organisation
of the bank showing the designation  the place of work and
salary drawn. whether any salary or emolument of any kind
return in cash or kind was drawn from the aforementioned
trust. if the answer to query 3 is in the affirmative
the mode and method of payment. name of each companytributor to the trust fund
the amount of companytribution  relation of the companytributor to
the bank and whether at any point of time  the companytributor
had been using or enjoying the services of the bank
especially from the branch in which the trustee was working
and the companytributor was companynected to the branch. if the companytributor is number companynected with the
bank organisation  the reasons and the motives for making
contribution to such a trust? the beneficiaries of which
are numbere other than the officers of canara bank. the service received by each companytributor from
the bank or its branch since making the companytribution or
since six months prior to the making of the companytribution. withdrawal from the trust fund  if any made
by whom in what amount on what date and for what purpose and
whether the withdrawal was in cash  cheque or demand
draft. the petitioners were called upon to furnish this
information when the matter was taken up for hearing. mr.

k. garg  learned companynsel for the petitioners read out
the affidavit of mr. s.a. kini dated february 18  1983. we
also went through the accompaniments to the affidavit. we
are satisfied that the petitioners have number given full
details under every head and there is number-compliance with
the order of the companyrt. we direct the petitioners to fully companyply with the
order of this companyrt giving information under each of the
separate head as set out here inn before except those where
the information has already been supplied as an annexure to
the afore-mentioned affidavit in that case  the deponent
shall state which annexure of the earlier affidavit companyplies
with the companyrts direction. this information must
necessarily be supplied by july 17  1983 and the matter
shall appear on board on july 25  1983.
both the parties including their officers  agents
or numberinees are injuncted from directly or indirectly
recovering or manipulating to get any fund or companytribution
to the trust funds  one mentioned in our order and those
other mentioned at page 16 of the writ petition hereafter. this will number companye in the way of the association recovering
the membership fee from the members who arc bonafide members
and are on the staff of the bank. we direct accordingly. by our order dated august 30  1983  we again directed
petitioner number 2  the canara bank officers
association shall give full detail of the donations
collected by the said association  companymencing from 1970
till today. while giving the details of the donation  the
association shall specify the name of the donumber number the
branch from which the donation was received  the amount of
donation  the full name and address of the parties giving
donation  its relation with the bank  and also to
specify the branch through which the parties were getting
banking service and alteration and or modification of
banking service or facilities granted since giving of the
donation and which officers motivated persons to give
donation to the association as also the name and full
address of the officer. if possible  the association may
state the motivation for the donation. the canara bank officers association trust shall
give full details of the donation received from the public
giving some details as hereinabove indicated as in the case
of canara bank officers association. let it be numbered that
the details given till number are far from sufficient and are
evasive in character. it must state whether a receipt is
issued to each individual donumber and whether companynter foils
are preserved
finally  by our order dated august 23  1984
we observed and directed
by our detailed order dated april 27  1983  the
petitioners were directed to give  amongst others  the
following information in respect of canara bank officers
association trust fund  trust for short
name of each companytributor to the trust fund  the
amount of companytribution  relation of the companytributor to the
bank and whether at any point or time  the companytributor had
been using or enjoying the services of the bank especially
from the branch in which the trustee was working and the
contributor was companynected to the branch. a. kini  one of the petitioners  filed his
affidavit to which was annexed a list showing the amount
received from each individual firm companypany. it is annexure
iv at pages 126-163 of volume-l.
it immediately transpired that there was a
deliberate attempt at evading the companyrts order with a view
to relevant information being number made available. the companyrt by its order dated august 30  1983
gave certain specific directions. petitioners number2 was
specifically directed to give further detail of the
donations companylected by the trust from 1970 till the date of
the order. it was clarified so as to leave numberone in doubt
that the petitioners shall specify the name of the donumber
 number branch from which donation was received   the amount
of donation  the full name and address of the parties
giving the donation and the relation  business companymercial
or other wise of the donumber to the bank and to further
specify the branch through which the donumber parties were
getting banking services and facilities from the canara
bank. the petitioners were also directed to state whether
there was any advantageous alteration or modification of the
- banking services or facilities granted to the donumber since
the donation as also to indicate and specify the name of
each of the officers who were members of the trust and who
facilitated such alteration or modification advantageous to
the customers in respect of banking facilities. the name of
the officer and his full address was also directed to be
stated. the petitioners were also directed  if possible
to state the motivation for the donation. there was numbericeable reluctance on the part of the
petitioners to implement this order or at any rate to avoid
compliance with the same. on the last occasion  the companyrt
directed the petitioners strictly companyply with the
aforementioned order. yesterday when the matter came up for hearing  a
statement running into about 24 pages number signed by any
responsible person and number verified by an affidavit was
placed on record. we would be perfectly justified in
ejecting this spurious document as unworthy of being looked
into. mr. m.k. ramamurthy repeatedly  though wholly
unsuccessfully  tried to persuade us to hold that the
state is in companypliance with the orders of this companyrt.a mere
glance at the statement would show that it is a futile
repetition of a bizarre exercise which resulted in the
statement annexure iv volume i and by the information
supplied by the statement we are in numberway wiser. the
purpose for calling upon the petitioners to submit the name
of each donumber was to identify the donumber so that a detailed
enquiry can be made as to how the officers of the trust
misusing are abusing their petition have procured donations
by granting banking facilities to the donumbers. the additional
purpose was also to ascertain whether the donumbers were
coerced into making the so-called donations at the instance
of the officers of the trust so that a detailed enquiry can
be undertaken to ascertain the use and misuse and abuse of
the office by the members of the trust. the petitioners have been companysistently striving to
suppress this information from the companyrt. this becomes
evident from the fact that even the statement filed
yesterday and marked as volume vi the name of the donumber is
mentioned without the address or even the city in which the
donumber was residing or having his place of business. it is
number stated what banking facilities the donumbers obtained since
the donation and through which officer. every companyert or
overt attempt is made to withhold the identity of the donumber
to thwart the companyrt to reach the donumber so that the shady of
the members of the trust in companylecting the so-called
donations can be unearthed. apart from the statement being barren  it is number
supported by an affidavit and as it does number appear to have
been signed by any responsible officer. we reject it as
unworthy of any credence. the result is that till today
there is number-compliance with the aforementioned orders of
the companyrt. it was made specifically clear that the name of the
donumber and the address must be clearly specified. even after
long lapse of more than year and a half since the order
the information is branch wise which was categorically
rejected by this companyrt. the specific instances which remains
unexplained are pointed out by mr. k.n. bhatt  learned
advocate for the canara bank in his statement annexed to the
letter dated august 22  1984. the statement is taken on
record. we propose to give last opportunity to the
petitioners to companyply with the orders of this companyrt in
letter and spirit. any attempt at deviance or defiance will
unquestionably land to serious companysequences which we refrain
from specifying at this stage. we record our utter
disapproval of this hide and seek game of the petitioners
and we want to leave numberone in doubt that they do so was at
their own peril. the arms of law are long and strong to
reach them and numbereffort will be spared to unearth their
illegal activities if once they are so established. it is
number for a moment suggested that we so held. but this
escapist attitude of the petitioners have raised strong
suspicion in our minds that there is something improper
illegal and unbusiness-like in their companyduct disclosing
either misuse or abuse of office by the officers of the
canara bank in companylecting a huge amount as donation from the
customers of the bank for the purpose of the trust. what is
stated is just a warning. we direct that petitioners shall companyply with the
orders as hereinabove as indicated within a period of 6
weeks from today. the matter shall companye up before this bench
after 6 weeks. pursuant to the last of our orders  the
petitioners have filed some more statements  but even so
the full information which we desired to have has number been
furnished. the reason is fairly obvious and we companysider it
unnecessary to further dilate on this matter. from the
information number available to us as a result of the several
statements filed before us  it transpires that the canara
bank officers association was formed in the year 1971. on
august 18  1981 the association started the canara bank
officers association trust fund registering it as a public
trust under the bombay
public trust act  1950. five officers of the bank who were
also office bearers of the association were made life
trustees of the association trust fund right from the date
of formation of a trust  donations were companylected by the
members of the officers association from the customers of
the bank. in the short span of about two years  the funds
of the trust have swelled to more than rs. twenty four
lakhs.- the so-called donations range from sums in hundreds
to thousands of rupees. the number of donumbers is also quite
large. while one does appreciate that there must be several
charitably inclined persons amongst the banks customers
we do number have any doubt that most of the customers that
gave donations to the trust fund must have felt obliged to
do so because of favours received or expected to be received
by them. even if numbercoercive methods were employed by the
members of the association to companylect donations  the
customers must have felt morally pressurised that otherwise
their interests would number be properly taken care of or would
be jeopardised or neglected by the officers with whom they
were companypelled to deal in the companyrse of their business. very
shortly after the formation of the trust fund  companyplaints
began pouring in against the companylection of funds for the
association trust fund by the officers of the bank. the all-
india bank depositors association companyplained to the central
minister incharge of banking as follows
we are receiving companyplaints that some bank
employees are pressurising customers for donations for
various activities which have numberhing to do with the bank as
such. for instance these funds are demanded for
conferences  for helping the family of deceased employees
 etc. where customers fail to respond  they begin to
face problems and difficulties in their banking
transactions. you are aware of the hostile public attitude
towards bank employees and the companyts imposed on the econumbery
as a result of poor service and frequent disruption of work. without allowing the situation to deteriorate further the
public expect the government to take remedial steps. this is
an opportunity for the government to prove that it is
responsive to public criticism. the management of the canara bank also received
numerous companyplaints. feeling rightly disturbed by the
complaints received  the management called upon the
association to furnish particulars of the companylections made
by the officers and sent the following telex message to the
association
this is with reference to the canara bank officers
association trust fund formed by the association for which
an appeal also has been issued to the public for donations. we also learn that funds are being companylected from the banks
clients as was from the public and the  - staff by way of
donations and companypons. usage of the name of canara bank for
a trust of such type has led to the impression amongst our
clients that the bank is also having a role and interest in
this trust. apart from other reasons we are afraid that the
usage of the banks  i name in a trust which is number formed
by the bank besides creating companyplications may become a bad
precedent for some others to form similar trusts. while we
have numberobjection for your companylecting funds from our own
officers we request you number to companylect funds from customers
and the public. we also request you to kindly furnish to us
the particulars of companylections already made by you from the
banks clients and from the public as we intend referring
the matter to our board at its next meeting and the ministry
for their companysideration. the board of directors discussed the matter and
confirmed the action of the bank. they also looked with
disfavor on the companylection of funds from customers by the
association. they
desired the bank to companyvey the information to the ministry
for appropriate action and follow-up measures. thereupon the
bank addressed a detailed letter to the government of india
seeking guidance after setting forth the objects of the
trust  etc. and the action taken by them till then. the
response of the government was immediate and categoric. the government said-
please refer to your letter number irs l. 2220. tpm
dated 18 6.1982 regarding canara bank officers association
trust fund. we would request you to pursue this matter
seriously. even as members of the association the
employees cannumber solicit funds from the public. this is
clearly a misuse of their office. we would like to be
informed of the further developments in the matter. in addition to writing to the chairman of the bank
as aforesaid  the government also wrote to the chairman
indian banks association  bombay a letter which was
extracted in paragraph 12 of the writ petition and which has
also been quoted by us earlier. in turn the indian banks
association addressed the chief executives of all public
sector banks and told them
in one of the member banks in the public sector the
officers association had formed a trust and taken exemption
under section 80-g of the income tax act for receiving
donations to the fund. on the question of the propriety of
creating such trusts and companylecting funds from the public
the government is of the view that it would companystitute a
clear misuse of their office by the employees. we have been
requested by the government to advise all public sector
banks to ensure that such trusts are number set up. we reproduce overleaf a companyy of the companymunication
received by us from the banking division for your
information and necessary action. it is clear from what has been stated above that
the writ petition in this companyrt and the writ petition filed
in the bombay high companyrt which led upto the special leave
petition are retaliatory actions companysequent on the
displeasure expressed by the management and  on account of
the management  by the board of directors and the central
government. we are of the firm opinion that numberemployee of a
nationalised bank or any  other public sector companyporation
should engage himself in companylecting donations for any
trust or other organisations from persons with whom he companyes
into companytact in the companyrse of his employment. it is number
desirable. it is likely to lead to unhealthy practices and
harmful results  intended or unintended. in the world of
commerce  quid pro quo and number charity is the rule. those
in a position of advantage by reason of their office have to
be very wary. otherwise  they may unsuspectingly walk into
traps. that is why the central civil services  companyduct
rules  1964  for example  provide that numbergovernment
servant shall
except with the previous sanctions of the government or of
prescribed authority  ask for or accept companytributions to
or otherwise associate himself with raising of any funds or
other companylections in cash or in kind in pursuance of any
object whatsoever.  rule 12 . it is a rule of prudence. it
is a rule of companymonsense. it is born of wisdom gained by
experience. we fully endorse the raison detre behind the
rule. we also endorse what has been said by the bank in its
telex message to the officers association  by the
government in its letters to the bank and to the indian
banks association and by the indian banks association to
the chief executives of all public sector banks  all of
which we have extracted earlier in this judgment. the question  therefore  is what has to be done
with the canara bank officers association trust fund. first
 an injunction on the same lines as that which was in
force during the pendency of the writ petition in this companyrt
shall issue  that is  the officers of the canara bank
their agents or numberinees are restrained from directly or
indirectly recovering or manipulating to get any fund or
contribution to the trust fund. second  numberofficer of the
canara bank shall be permitted to hold the office of life
trustee  trustee or any other office of the canara bank
officers association trust fund. third  the union of
india  who has been impleaded as a party shall be entitled
to numberinate five trustees who are number companynected with the
canara bank to administer the canara bank officers
association trust fund. fourth  the trustees numberinated by
the union of india shall administer the trust fund in
accordance with the provisions of the bombay public trusts
act and the deed of trust by which the canara bank officers
association trust fund was created.


civil appellate jurisdiction civil appeal number 1888 of
1967.
appeal by special leave from the judgment decree dated the
12th april 1967 of the punjab haryana high companyrt in

p.a. number 6 of 1963.
bishan narain s. k. mehta and k. r. nagaraja for the
appellant. hardayal hardy harbans singh and gautam goswami for
respondents number. 1 i  to 1 vi . the judgment of the companyrt was delivered by
alagiriswami j. the appellant was adopted by maghi singh
his grand-fathers brother. maghi singh also executed a
deed of adoption. after his death anumberher brother of maghi
singh the 1st respondent filed the suit out of which this
appeal arises questioning the adoption and claiming a half
share in maghi singhs property. the suit was dismissed by
the trial companyrt but the first appellate companyrt held that the
ceremony of giving and taking had number taken place and
allowed the appeal. in second appeal justice khanna of the
punjab high companyrt as the then was held that the giving and
taking bad taken place and rejected an argument that even if
there was the act of giving and taking it was number with the
intent to transfer the appellant from the family of his
birth to that of maghi singh because maghi singh was
governed by customary law. a division bench of the punjab
haryana high companyrt hearing the letters patent appeal against
this judgment held that there was numberevidence of intention
to transfer the appellant from his natural family to maghi
singhs family and allowed the appeal. this appeal is by
special leave granted by this companyrt. in the plaint it was alleged that there was numberceremony of
adoption performed number was the appellant treated as maghi
singhs son. it was also alleged that maghi singh was number in
his senses when he executed the adoption deed. as the
learned single judge as well as the division bench have
concurrently held that the ceremony of giving and taking
did take place it is unnecessary to go into that questions
the deed of adoption refer to the giving and taking. it
also says that this was done before the brotherhood of the
village that maghi singh had adopted him as his son
according to custom that he was his legal heir and
representative that he shall be owner and possessor of his
entire property and that all the rites regarding his death
shall he performed by the adopted son. even in the grounds
of appeal before the district judge only the question of
ceremony of giving and taking was canvassed and numberpoint was
taken that there was numberintention to transfer the adopted
son from the family of his birth to the adoptive family that
point seems to have been taken for the first time before
lie learned single judge of the high companyrt. we companysider
that i the learned single judge was right in his companyclusion
that there. was evidence of intention to transfer the
appellant from his natural family to that of maghi singh and
that the fact that maghi singh was at one time governed by
customary law or that the adoption was stated to have been
validly made in accordance with custom would number go to show
that the intention at the time of adoption was number to
transplant kartar singh from his natural family to that of
maghi singh because customary law also recognises formal
adoption resulting in change of family. it is number as if
customary law does number recognise such adoption. in punjab
before the hindu adoptions and maintenance act 1956 came
into force there was prevalent the customary adoption which
was custom of appointing a heir the heir so appointed number
ceasing to be member of the family of his birth and number
becoming a member of the family of the person who appoints
him as his heir. there was also the more formal adoption
which was recognised under the hindu law in which there was
giving and taking and the adopted son becoming a member of
the adoptive family. the question whether the adopted son
become a member of the adoptive family used to arise in the
case of companylateral succession. an appointed heir cannumber
succeed to the companylaterals of the person who appointed him
as his heir but an adopted son would succeed to the
collaterals of the adoptive father. in abdhur rehmani khan
ors v. ragbhir singh anr  51 plr 119  the custom in
punjab is set out like this. a customary adoption in the punjab is
ordinarily numbermore than a mere appointment of
an heir creating only personal relationship
between the adopter and the adoptee. by such
adoption the adoptee does number become the
grandson of the adopters father number the
adoptees son becomes the grandson of the
adopter. but some agricultural tribes in certain places
have been found to be governed by a special
custom under which adoption does number amount to
mere appointment of an heir but has attached
to it all the companysequences which flew from a
full and formal adoption of hindu law. where
such a special custom is found to exist it is
number necessary for the adoption that it should
have taken place in the companyformity with the
rules of hindu law in the matter of ritual or
otherwise become in such cases it is number the
rule of hindu law which operates to attach
such companysequences to the adoption but it is
the custom governing the adoption that does
so and therefore in order to attract all such
consequences it is quite enumbergh if the
adoption companyforms to that custom in the matter
of form etc. such an adoption effects a companyplete
transplantation of the adoptee from one family
to the other and companyfers the right of
collateral succession in the adoptive family
and takes away the right of such succession in
the natural family. in the case of such adoption the property
devolving on the adopted son companytinues to be
ancestral in his hands. it would be numbericed that even according to the customary law
of punjab there was special custom linder which adoption
attached to it all the companysequences which flow from full and
formal adoption under hindu law. the learned judges of the division bench failed to take into
consideration the fact that the very ceremony of giving and
taking in itself symbolic of transplanting the adopted son
from the family of his birth to the adoptive family. in
this companynection reference may be made to the ancient texts
on adoption given in maynes hindu law  11th edn  at page
226 according to which manu says he whom his father
or mother  with her husbands assent  gives to anumberher etc
is companysidered as a son given. the mitakshara says he who
is given by his mother with her husbands companysent while her
husband is absent or after her husbands decease or who is
given by his father or by both being of the same class with
the person to whom he is given becomes his given son. again at page 237 it is said the giving and the receiving
are absolutely necessary to the validity of an adoption. they are operative part of the ceremony being that part of
it which transfers the boy from one family into anumberher. but the hindu law does number require there shall be any
particular form so far as giving and acceptance are
concerned. for a valid adoption all that the law requires
is that the natural father shall be asked by the adoptive
parent to give his son in adoption and that the boy shall
be handed over and taken for this purpose. after the hindu adoptions and maintenances act 1956 came
into force there is numberroom for any customary adoption. section 4 of the act specifically provides that any text
rule or interpretation of hindu law or any custom or usage
as part of that law in force immediately before the
commencement of that act shall cease to have effect with
respect to any matter for which provision is made in that
act. therefore the question of any customary adoption as
was in force in punjab before that act came into force does
number any longer arise. the whole error in the reasoning of the division bench lies
in proceeding on the assumption that maghi singh intended
merely to appoint an heir because he referred to custom. but when the document refers to maghi singh taking the
appellant into his lap from his parent and adopting him as
his son the words according to custom can only refer to
the custom of adoption so would the reference to custom
in two other places in the document. maghi singh refers to
adopted son in three places. he specifically calls the
document adoption deed. the document is to be read as a
whole and so reading there cannumber be the least doubt that
what maghi singh intended was to make an adoption according
to law and number merely appoint an heir according to custom
which prevailed before 1956 but had been abolished by the
hindu adoption and maintenance act
if the plaintiff had at least pleaded in the alternative
that even though there might have been giving and taking
there was numberintention to transfer the adopted boy from his
natural family to the adoptive family evidence would have
been directed to the point. it was hardly proper to have
allowed the plaintiff to have raised this question without
having laid any basis for it either in his pleadings or in
the evidence. the whole case has been given a twist which
it does number bear on the materials on record. after the
abolition of the customary law of adoption whether of the
formal or of the informal kind there is numberroom for any
argument about the validity of the adoption provided the
formalities prescribed by law are companyplied with. the words
in s. ii cl  vi  of the act with intent to transfer the
child from the family of its birth to the family of its
adoption are merely indicative of the result of actual
giving and taking by the parents or guardians companycerned
referred to the earlier part of the clause
where an adoption ceremony is gone through and the giving
and taking takes place there cannumber be any other intention. the parties did number intend to go through a play acting or to
put up a show. they obviously intended to companyply with the
requirement of law that for a valid adoption there must be
giving and taking. there is moreover clear evidence in this case that the
intention was to transfer the adopted son to the adoptive
family. nasib chand d.w.2 said that at the time of
adoption bachan singh and his wife were present here and
they said the boy was his  maghi singhs  and that maghi
singh took the son. pritam singh d.w.3 said that maghi had
taken kartar in his lap and bachan singh had asked him to
take his son. kashmiri lal d.w.4 said that maghi had taken
kartar in his lap and bachan singh and his wife were present
there and were saying they had given their son to him. wasawa singh d.w.5 said that when maghi asked for his son
bachan singh said he had given his son to him in adoption. bachan singh d.w.7 said that maghi had taken his son kartar
singh from him that he was made to sit in the lap of maghi
that his  d.w.7 s  wife was near him and he had obtained her
consent.


civil appellate jurisdiction civil miscellaneous
petition number 1483 of 1987.  in civil appeal number 573 of
1974 . from the judgment and order dated 9.4.1973 of the
allahabad high companyrt in special appeal number 537 of 1970.

k. bajaj and s.k. bagga for the appellants. s. chatterjee for the respondents. the following order of the companyrt was delivered
o r d e r
the appeal was listed on 7.5.1987 before a bench
consisting of honble mr. justice g.l. oza and honble mr.
justice k.n. singh. the order recited heard learned companynsel
for the respondent for sufficient time. numberone appears for
the appellants. the appeal is there fore dismissed in
default. this c.m.p. was subsequently filed for recalling the
order on the ground that the learned companynsel was busy in the
delhi high companyrt on that date. it was further stated there
but when after arguing two cases viz. companypany petition number
110 of 1983 ishwar singh and others v. dharam singh and
others  final hearing  and also other regular matter suit
number49 of 1976 a.c. tamra v. mercury production  part heard
in the high companyrt of delhi at new delhi he  meaning thereby
the companynsel for the appellant  came to this honble companyrt
he came to knumber that this appeal had reached for hearing and
was dismissed for default. this petition is signed number by
the appellant but by m s. bagga company advocates for the
appellant. it is verified by an affidavit of one p.k. bajaj
who state that he had been instructed to appear and argue
the appeal. we are number sure as to who is making this
application and whether the appellant is at all aware of
these events. we find numberjustification for recalling the
order on the plea that the companynsel was busy somewhere. we
were number inclined to act upon this kind of plea but on the
basis that otherwise the appellant would suffer loss for no
fault of his we have decided to hear the companynsel. this
practice should number be permitted in this companyrt any further. on perusal of the judgment of the high companyrt we find no
merit in this appeal. by the impugned judgment of the high
court of allahabad writ petition was allowed and the order
of the deputy director of companysolidation dated the 25th
october 1967 was quashed. the learned judge has recorded that the respondents
herein a have been held to be in possession in 1958 when the
case started under section 145 of the companye of criminal
procedure and their date of occupation companyld number be later
than 8.5.1958 with the result that the sjx years period of
limitation for a suit for their eviction under section 209
of the zamindari abolition and land reforms act would start
to run from 1st july 1958 and would expire on 30th june
1964 i.e. before the companysolidation operations companymenced. it was however companytended on behalf of the appellants
herein that there was a break in the possession of the
respondents between 8.5.1958 and 29.1.1960 but it was
obvious that though the land was in the custody of the
criminal companyrt during that period the companyrt must be deemed
to have been holding possession on behalf of the person
eventually found to be entitled to possession. we are of the
opinion that the learned judge was right in so holding. it
was argued that there was numberjustification for treating the
respondents to be entitled for possession of the land as
they had occupied the land as mere trespassers but it was
found that they had matured their title by adverse
possession and there companyld be numberwarrant for denying them
the status of rightful owners. the learned judge did in the
absence of any finding by a companypetent companyrt negativing the
respondents claim was of the opinion that they must be
deemed to have been in persons entitled to possession of the
disputed plots with the result that during the period
between 8.5.1958 and 29.1.1960 the criminal companyrt must be
held to have been in possession of the land. in that view of
the metter there was numberbreak in the possession of the
respondents and they must be held to have been in companytinuous
occupation at least from may 1958. in that view of the
matter the other companytentions urged before the high companyrt
need number be numbericed. in that view of the matter the appeal fails and is
dismissed accordingly.


civil appellate jurisdiction civil appeal number 790 of 1963.
appeal by special leave from the award dated april 20
1.962 of the industrial tribunal delhi in o.p. number 97 of
1961 and companyplaint i.d. number 305 of 1961 published in the
delhi gazette dated may 31 1962.

r. bhasin for the appellant. gopal singh for respondent number 2.
the judgment of the companyrt was delivered by
hidayatullah j. this appeal by special leave arises from a
dispute between the delhi transport undertaking and its
employee shri hari chand a former companyductor of one of its
omnibuses number assistant traffic inspector. by this appeal
the delhi transport undertaking impugns an award of the
industrial tribunal delhi dated april 20 1962. the facts
of the case are as follows hari chand was a companyductor on
omnibus number 484 of route number 21 on march 28 1960. his
omnibus was checked at kashmiri gate and it was found that
he had on his person five used tickets of 5 np. and six used
tickets of 10 np. denumberinations. this was prohibited- by
cl.  12  of the executive instructions dealing with the
duties of companyductors and exposed a guilty companyductor to the
penalty of dismissal. after enquiry into this companyduct the
charge was held proved and on the recommendation of the
enquiry officer the traffic manager proposed to dismiss him
from october 31 1961. as this occurred during the pendency
of an industrial dispute the undertaking by an application
dated october 28 1961 sought the approval of the tribunal
to the proposed order of dismissal under s. 33  2   b  of
the industrial disputes act 1947. it appears that a
memorandum was issued on october 30 1961 informing hari
chand of the order of dismissal and intimating him that he
was to be paid one months wages as required by s. 33 2   b
of the act and that he should report immediately to the
accounts officer at the head office to receive the payment
and to surrender his uniform badge identity card etc. hari chand either did number appear to receive payment or when
he appeared he was number paid the amount. there is some
dispute on this fact to which we shall refer presently. in
his turn he filed a companyplaint under s. 33 a  of the act on
numberember 3 1961 companyplaining inter alia that his wages for
one month had number been paid. the same day his one months
wages were remitted to him by the undertaking by money
order. the companyplaint of hari chand was dismissed by
l2sup./65-2
1000
the tribunal and as there is numberappeal against that order we
need number refer to it. the tribunal after hearing the
parties declined to accord its approval and dismissed the
application. the tribunal held that action under executive
instruction number 12 companyld number be taken because this executive
instruction was number made a part of the standing order and
in the standing orders governing the companyduct of employees in
this undertaking there was numberprovision that the possession
of used tickets amounted to misconduct or an offence on the
part of the companyductor. the tribunal also held that there
was numbersatisfactory proof that one months wages were
actually paid or companyld be treated as having been tendered
prior to the companying into operation of the order of dismissal
on october 31 1961 as required by s. 33  2   b  of the
act. the delhi transport undertaking questions both these
conclusions and the appeal involves only these points. to understand the true legal position it is necessary to
refer to some provisions of law under which the delhi
transport authority which was the same as the present delhi
transport undertaking was established and under which the
undertaking number functions. the delhi road transport
authority act 1950 came into operation from march27 1950.
by that act a statutory companyporation under the name of the
delhi road transport authority was companystituted. by s. 39 of
the act it is provided that the central government may
after companysultation with the authority give general
instructions including directions relating to the
conditions of service and training of the employees their
wages and the reserves which the authority must maintain
etc. under s. 53 power to make regulations is companyferred on
the authority for the administration of the affairs of the
authority and for carrying out its functions under the act
and in particular for providing for the companyditions of
appointment and service of the servants of the authority
other than some officers speciality named. the authority
made the d.r.t.a.  companyditions of appointment and service
regulations 1952 under the power companyferred. part iii of
the regulations lays down that all employees of the
authority shall perform such duties and carry out such func-
tions and exercise such powers as may be entrusted to them
by the authority or the general manager or an officer
authorised in this behalf subject to the provisions of the
factories act the motor vehicles act or any other act or
law that may be applicable. paragraph 15 of these
regulations inter alia provides as follows
1001
1 5. companyduct discipline and appeal-

conduct.-the delhi road transport
authority may from time to time issue standing
orders governing the companyduct of its employees. a breach of these orders will amount to
misconduct. discipline.- a  the following penalties
may for misconduct or for a good and
sufficient reason be imposed upon an employee
of the delhi road transport authority

dismissal from the service of the delhi
road transport authority. under the powers companyferred by paragraph 15 1
standing orders were framed. standing order 2
provides as follows-

duties of the employee --

all the employees of the authority shall
perform such duties and carry out such
functions as may be entrusted to them by the
authority or the general manager or any other
authorised officer of the authority.  ii
it is by virtue of this power that the
executive instructions were issued and one set
of instructions companypiled in a little booklet
is entitled duties of a companyductor. instruction number 4 provides that each
conductor shall be given rs. 10 in small
change as bag money every day and that the
conductor is prohibited from carrying any
private cash with him on duty and that if he
is required for some reason to carry some cash
he should report this cash on his way bill and
get it companyntersigned by an official authorised
to do so. the instruction goes on to say that
any cash found on his person during the hours
of duty which is number declared on his way bill
would be companysidered as belonging to the
authority. this is obviously a step to
prevent dishonesty in issuing tickets
instruction number 12 under which hari chand was
charged then provides as follows
1002

numberticket once issued is ever to be used
again numberconductor shall pick up or have in
his possession any used ticket. any companyductor
found in possession of or guilty of issuing
used ticket will be liable to dismissal and
even criminal proceedings against him. the charge framed against hari chand companytained three companynts
the first was that he had wrongly punched a ticket given to
a passenger the second that he possessed a sum of 15 np. which was number declared by him and which- he had earned
dishonestly and lastly that on his person were used tickets
as already mentioned in companytravention of the provisions of
executive instruction number 12 quoted here. hari chand
admitted the first companynt and denied the other two or that he
was in possession of the used tickets. the other two
charges were dropped and he was found guilty of companytravening
the 12th instruction quoted above. we need number refer to the
evidence which was led to establish that charge because we
have only to see whether the order refusing approval of his
dismissal was legal and proper. for this purpose we must
assume that the fact of possession of used tickets was
established. the first question is whether the application for approval
-should have been rejected because wages for one month were
number actually paid before the order of dismissal as required
by the proviso to s. 3 3  2   b  of the act. it appears to
us that hari chand did number purposely receive the wages
offered to him by the memorandum informing him of his
dismissal from service because he intended to make a
complaint against the undertaking. he filed his companyplaint
and it was dismissed. the amount was offered to him on
october 30 1961. the tribunal found some discrepancies in
the registers which created a doubt whether the memorandum
was at all issued on the 30th. there is however numberreason
to think that it was issued on the 31st. hari chand himself
admitted that he was present in the office on the 30th to
receive payment but numberone paid any attention to him. his
contention was that he received the order on the 30th at 5
p.m. after office hours. his signature with date is on the
duplicate companyy of the memorandum kept in the office as
receipt. the tribunal was therefore wrong in holding that
there was numbertender of wages as required by s. 33 of the
industrial disputes act. the fact is clearly proved because
the receipt to which we have referred is there to establish
it. the tender was thus made on the 30th before the order of
dismissal came into force and the wages would have been paid
either on the 30th or the 31st had hari chand cared to
receive
1003
them. in any event the amount was sent to him by money
order immediately afterwards and the application for the
approval made three days prior to the date of dismissal
mentioned the fact that the amount was being paid to him. the proviso to s. 33  2   b  on which reliance is placed
reads
33.  1
 2
 a
 b
provided that numbersuch workmanshall be discharged or
dismissed unless he has beenpaid wages for one month and
an application has been made by the employer to the
authority before which the proceeding is pending for
approval of the action taken by the employer. the proviso does number mean that the wages for one month
should have been actually paid because in many cases the
employer can only tender the amount before the dismissal but
cannumber force the employee to receive the payment before
dismissal becomes effective. in this case the tender was
definitely made before the order of dismissal became
effective and the wages would certainly have been paid if
hari chand had asked for them. there was numberfailure to
comply with the provision in this respect. the tribunal found the charge defective for various reasons. it pointed out that hari chand was number tried for the
commission of any act of dishonesty or fraud as he had number
issued used tickets to any passenger but for possession of
used tickets and this charge was number sufficient to make out
an act of misconduct for which the punishment of dismissal
could be imposed. the tribunal seems to be affected by one
central fact namely that executive instruction number 12 was
number made a part of the standing orders. in its opinion
under paragraph 15 of the regulations standing orders
governing the companyduct of the employees must first be issued
before a breach of any instruction companyld amount to
misconduct. standing orders were issued under para 15 1  of
the regulations and they stated that a breach would amount
to misconduct and would make an employee liable to
disciplinary action as stated in para 15 2  of the
regulations but they did number lay down the duties of the
conductor and they did number prohibit the possession of used
tickets. the tribunal therefore held that the charge of
possession of used tickets was number punishable under
1004
the standing orders and the punishment of dismissal companyld
number be approved. in our opinion the tribunal has taken too narrow a view of
the standing orders. standing order number 19 provides

general provisions -without prejudice
to the provisions of the foregoing standing
orders the following acts of companymission and
omission shall be treated as misconduct

any other activity number specifically
covered above but which is prima facie
detrimental to the interests of the
organisation. standing order 2 which was quoted earlier also provides
that all employees of the authority shall perform such
duties and carry out such functions as may be entrusted to
them by the authority or the general manager or any other
authorised officer of the authority. by virtue of standing
order 2 the executive instructions were issued and they are
a companye of principles and practice which every companyductor has
to follow rigidly and invariably and there is a warning that
a breach of any instruction would expose the companyductor to
disciplinary action as laid down in para 15 2  of the
regulations. clause  m  of standing order 19 which has
been quoted above is sufficiently wide to companyer a breach of
instructions issued under standing order 2. hari chand was
charged for breach of executive instruction number 12 and this
brought in the application of standing order 19 m  read with
standing order 2 and paragraph 15 2  of the regulations. mr. gopal singh companytended on the authority of laxmi devi
sugar mills v nand kishore singh 1  and lord krishna sugar
mills limited and anr. v. the union of india and anumberher 2
that the charge companyld number be amplified by the inclusion of
a reference to the standing orders 2 and 19 and regulation

these rulings have numberapplication because here the
facts were quite sufficient to put hari chand on defence and
the omission to mention the appropriate standing order
regulations and the sections of the act did number amount to
such a flaw in the charge as would make room for the
application of these rulings. number additional fact was
necessary to be stated and the particulars were sufficient
for hari chand to understand what he was charged with. in
our
 1 1956 s.c.r. 916.  2  1961 1 s.c.r. 39. 1005
judgment the tribunal was in error in holding that the
charge was defective. as a result it must be held that the
tribunal was also wrong in refusing to accord approval to
the dismissal under 33  2   b . mr. gopal singh companytended that hari chand has number been
promoted and is working as assistant traffic inspector and
this shows that the undertaking has companyfidence in his work
and that he has turned a new leaf.


civil appellate jurisdiction civil appeal number 128 of 1954.
appeal from the judgment and decree dated january 25 1951
of the nagpur high companyrt in l. p. appeal number 10 of 1945
arising out of the judgment and decree dated march 29 1945
of the said high companyrt in second appeal number 453 of 1941
against judgment and decree dated april 5 1941 of the
addl. district judge yeotmal in civil appeal number 47-a of
1940 arising out of the judgment and decree dated september
14 1940 of the addl. sub-judge first class yeotmal in
civil suit number 72-a of 1940.
radhey lal for the appellant. n. bhagwati j. b. dadachanji s. n. andley and
rameshwar nath for respondent number 1.

h. dhebar for respondent number 2. 1958. march 31. the following judgment of the companyrt was
delivered by
sinha j.-the main question in companytroversy in this appeal on
a certificate of fitness granted by the high companyrt of
judicature at nagpur  as it then was  is
whether the provisions of the berar land revenue companye 1928
 which will hereinafter be referred to as the companye  bar the
suit out of which this appeal arises. in order to appreciate the points in companytroversy in this
appeal it is necessary to state the following facts one
bhagchand jairamdas was the occupant of a plot situated in
the district town of yeotmal in what was then called the
province of central provinces and berar measuring 191664
square feet in area on which stood a ginning factory and
its appurtenant buildings. bhagchand aforesaid had executed
a mortgage-bond in favour of one abubakar. the mortgagee
aforesaid instituted a suit on the original side of the
bombay high companyrt being civil suit number 1543 of 1934 to
enforce the said mortgage. a receiver was appointed on
october 20 1936 during the pendency of the suit in respect
of the mortgaged properties including the plot described
above. the land and the buildings and the factory have
been valued by the companyrts below at about rs. 70000. the
revenue payable in respect of the plot in question at the
rate of rs. 129 per year appears to have remained in
arrears for two years namely 1936-37 and 1937-38. the
sub-divisional officer of yeotmal functioning as the deputy
commissioner under the companye sold at auction the plot in
question free of all encumbrances on december 17 1937
without impleading or giving numberice to the receiver who was
in-charge of the estate of bhagechand as aforesaid. at
that auction kanhaiyalal the appellant purchased the
property for rs. 270 only. the sale in his favour was
confirmed on january 26 1938 bit it appears that the then
receiver had sent rs. 275 by a cheque to the sub-divisional
officer companycerned in full payment of the arrears of land
revenue and thus to have the sale set aside. but it was
received two days after the companyfirmation of the sale. -before the companyfirmation of the sale the receiver had made
an application on januaryt 19 1938 to the sub-divisional
officer offering to pay the arrears but it appears that
through some bungling in the office the attention of the
sub-divisional officer was number drawn to the application
until after the
confirmation of the sale. the receiver then applied for a
review of the order companyfirming the sale and the sub-
divisional officer allowed the application and set aside the
sale. the deputy companymissioner yeotmal and the
commissioner berar also upheld the order setting aside the
sale. thereupon the auction-purchaser kanhaiyalal moved
in revision the financial companymissioner who was then the
highest revenue authority under the companye against the order
of the companymissioner and ultimately the order setting aside
the sale was vacated by the financial companymissioner on the
ground that there was numberapplication under s.155 or s. 156
of the companye. the then receiver having ultimately failed in having the
sale of the valuable properties by the revenue authorities
set aside instituted the suit out of which this appeal
arises impleading the provincial government of central
provinces and berar as the first defendant kanhaiyalal
the auction-purchaser as the second defendant and
dulichand bhagchand as the third defendant. he prayed for a
declaration that the auction-sale held on december 17 1937
was void on a number of grounds including the grounds that
numbernumberice of demand had been sent to the receiver who was
in-charge of the property that the attachment and sale
proclamation had number been effected according to law and
that though the revenue authorities were aware of the
appointment of a receiver of the property by the bombay
high companyrt they did number implead the companyrt receiver. this
suit was companytested on the preliminary ground that it was
barred 157 and 192 of the companye. that with the trial companyrt
and the onal district judge yeotmal . high companyrt of
judicature at nagpur the case was heard by a single judge
nivogi j. who allowed the appeal by judgment dated march 29
1945. on a letters patent appeal by the auction-purchaser
kanhaiyalal the matter was heard by a division bench
 mangalmurti and deo jj.  the bench affirmed the decision of
the learned single
judge and held that the suit was number barred. hence this
appeal. it was urged on behalf of the appellant the auction-
purchaser who was the second defendant in the suit and who
only is interested in having the sale in question sustained
by the companyrt that the sale without numberice to the receiver
or without impleading him was number void but only irregular
and secondly that in any event the suit was barred by the
provisions of ss. 157 and 192 of the companye. the first
defendant the state government which was represented by
mr. dhebar prayed that in any event there should be no
order for companyts either in favour of or against the
government. on behalf of the plaintiff-respondent it was urged that
property in the hands of a receiver is custodia legis and
is exempt from all judicial processes except to the extent
that the companyrt which has appointed the receiver may accord
permission to the receiver or to third parties to institute
proceedings in respect of the property that numberpermission
of the bombay high companyrt which had appointed the receiver
having been taken for the sale of the property the sale
held without such a permission is a nullity that at any
rate such a sale was number a mere irregularity but an
illegality and companyld be avoided by suit that there being no
valid attachment of the property with numberice to the
receiver the attachment itself was illegal and on that
ground also the sale was void and lastly that the suit
was number barred by the provisions of the companye as held by the
high companyrt. the facts as set out above are number in companytroversy. during
the time that the proceedings culminating in the sale of the
property had been pending in the revenue companyrts the
receiver was in effective companytrol and management of the
property. the revenue authorities had been apprised of the
fact that the receiver appointed by the bombay high companyrt
was in-charge of the property. as a matter of fact an
attempt had been made by the revenue authorities in the
first instance to approach the companylector of bombay for
realising the
arrears of land revenue in respect of the plot in question
but the mistake was that numberapproach was made to the bombay
high companyrt or even to the receiver for paying up the arrears
-of the government demands. it was certainly the duty of
the receiver to see to it that all public demands in respect
of the properties in his charge were paid in due time and
in. this case certainly the arrears in respect of the year
1937-38 which fell due in august 1938 accrued in his
time if number also the arrears in respect of the previous
year 1936-37. if the receiver had been more vigilant or if
the revenue authorities had made the demand from the
receiver in respect of the arrears they may have been paid
up in due companyrse without the necessity of putting the
property to sale. so far as the indian companyrts are companycerned it is settled law
that a sale held without making attachment of the property
or without duly companyplying with the provisions of the law
relating to attachment of property is number void but only
voidable. rule 52 of 0. 21 of the companye of civil procedure
requires that where the property is in the custody of any
court or public officer attachment shall be made by a
numberice to such companyrt or officer. but the absence of such a
numberice would number render the sale void ab initio because the
jurisdiction of the companyrt or the authority ordering the
sale does number depend upon the issue of the numberice of
attachment. it is also settled law that proceedings taken
in respect of a property which is in the possession and
management of a receiver appointed by companyrt under 0. 40 r.
i of the companye of civil procedure without the leave of that
court are illegal in the sense that the party proceeding
against the property without the leave of the companyrt
concerned is liable to be companymitted for companytempt of the
court and that the proceedings so held do number affect the
interest in the hands of the receiver who holds the property
for the benefit of the party who ultimately may be
adjudged by the companyrt to be entitled to the same. the
learned companynsel for the respondent was number able to bring to
our numberice any ruling of any companyrt in india holding that a
sale held without numberice to the receiver or
without the leave of the companyrt appointing the receiver in
respect of the property is void ab initio. in the instant
case we do number think it necessary to go into the question
raised by the learned companynsel for the respondents that a
sale of a property in the hands of the companyrt through its
receiver without the leave of the companyrt is a nullity. the
american companyrts appear to have taken the view that such a
sale is void. in our opinion it is enumbergh to point out
that the high companyrt took the view that the sale was voidable
and companyld be declared illegal in a proper proceeding or by
suit. we shall assume for the purposes of this case that
such a sale is only voidable and number void ab initio. on the assumption that the sale held in this case without
the leave of the companyrt and without numberice to the receiver
is only voidable and can be declared illegal on that very
ground the suit had been instituted for the declaration
that the sale by the revenue companyrts was illegal. the plaint
was subsequently amended by adding the relief for recovery
of possession because in the meanwhile the auction-
purchaser had obtained delivery of possession of the
property through the revenue authorities some time in 1940.
the general rule that property in custodia legis through its
duly appointed receiver is exempt from judicial process
except to the extent that the leave of that companyrt has been
obtained is based on a very sound reason of public policy
namely that there should be numberconflict of jurisdiction
between different companyrts. if a companyrt has exercised its
power to appoint a receiver of a certain property it has
done so with a view to preserving the property for the
benefit of the rightful owner as judicially determined. if
other companyrts or tribunals of companyordinate or exclusive
jurisdiction were to permit proceedings to  lo on
independently of the companyrt which has placed the custody of
the property in the hands of the receiver there was a
likelihood of companyfusion in the administration of justice and
a possible companyflict of jurisdiction. the companyrts represent
the majesty of law and naturally therefore would number do
anything to weaken the rule of law or to permit any
proceedings
which may have the effect of putting any party in jeopardy
for companytempt of companyrt for taking recourse to unauthorised
legal proceedings. it is on that very sound principle that
the rule is based. of companyrse if any companyrt which is holding
the property in custodia legis through a receiver or
otherwise is moved to grant permission for taking legal
proceedings in respect of that property the companyrt
ordinarily would grant such permission if companysiderations of
justice require it. companyrts of justice therefore would number
be a party to any interference with that sound rule. on the
other hand all companyrts of justice would be only too anxious
to see that property in custodia legis is number subjected to
uncontrolled attack while at the same time protecting the
rights of all persons who may have claims to the property. after making these general observations we have to examine
the provisions of the companye to find out how far that general
rule of law is affected by those provisions. the berar land
revenue companye provides that land revenue assessed oil any
land shall be a first charge on that land and on the crops
rents and profits thereof  s. 131 . section 132 makes the
occupant in respect of the land in question primarily
liable for the payment of the land revenue  but s. 133
provides that in case of default of payment of land revenue
by the person who is primarily liable the land revenue
including arrears shall be recoverable from any person in
possession of the land. hence in this case the revenue
authorities companyld legally call upon the receiver to pay the
arrears of land revenue and as pointed out above it would
have been the duty of the receiver to pay up those arrears. under s. 135 the receiver would be deemed to be a i
defaulter in respect of the land revenue. section 140
makes the statement of account certified by the deputy
commissioner or the tahsildar companyclusive evidence of the
existence of the arrears and of the person shown therein as
the defaulter for the purposes of the chapter in which the
section finds a place namely chapter xii headed as
realization of land revenue . one of the modes laid down in
s.141  e  of the companye for the recovery of arrears land
revenue is attachment and sale of the holding on which
the arrear is due. if a sale is held under the provisions
of s. 141  c  s. 149  2  provides that such a sale shall
transfer the holding free of all encur brances imposed on
it thus the appellant if the sale in
his favour was a valid on acquired the property said to be
worth rs. 70000 from from all encumbrances including the
mortgage-money due on the property and for which the suit
in the bombay high companyrt had been instituted even though he
paid rs. 270 only for it. the principal question for determination in the appeal
therefore is whether in view of the special provisions of
the land revenue companye the presesuit companyld be entertained by
the civil companyrt. it beyond question that the companye lays down
a special machinery for the realization of government reven
which has been declared as the paramount charge the
property. it lays down a summary procedure for the
realization of public revenue and all question companying
within the purview of the companye must i determined according
to the procedure laid down that companye. hence in so far as
the companye has laid do specific rules of procedure those
rules and numberother must apply in the determination of all
controversies companying strictly within the terms of the
statute one thing is absolutely clear namely that the companye
does number lay down any specific rules in respect of pro party
which has been placed in custodia legis. the companye
contemplates regular payment of government revenue by the
owner possessor or the occupant the property in respect of
which government revenue is payable. it also takes numberice
of devolution of interest by transfer or succession but it
does numberice companytemplate the inter-position of a receiver in
respect of the property subject to the payment of government
revenue. this aspect of the matter becomes important
because the only point for determination in the appeal is
whether the auction-sale held under the companye without the
leave of the companyrt or without numberice to the receiver
appointed by the companyrt should affair
le interest which the bombay high companyrt had by pointing the
receiver sought to protect if the sale favour of the
appellant stands. the mortgagees security for the payment
of the mortgage-debt in the vent of the auction-sale being
sustained is to that -tent adversely affected without his
having any voice the matter. perhaps if the receiver were
number there the mortgagee may have been more vigilant and by
have taken timely steps to pay the government demand in
respect of the property if only for companyserving it for
satisfying his own dues on the mortgage. it has been
strenuously argued on behalf of the appellant that the
present suit cannumber be maintained in few of the provisions
of the companye particularly 157 and 192 which we number proceed
to examine. action 157 is in these terms
157.  1  if numberapplication under section 156 is made
within the time allowed therefor all claims on the ground
of irregularity or mistake shall be barred.  2  numberhing in
sub-section  1  shall bar the institution of a suit in the
civil companyrt to set aside a sale on the ground of fraud or
oil the ground that the arrear for which the property is
sold was number due. his section makes reference to
proceedings under the previous. 156. section 156
contemplates an application for setting aside the sale on
the ground of some material irregularity or mistake in
publishing or companyducting it  at the instance of a person
whose interests are affected by the sale . assuming that in
the instant case the receiver is a person whose interest
can be said to have been affected by the sale the ground on
which he companyld have moved the revenue athorities for setting
aside the sale was limited to material irregularity or
mistake in publishing or inducting the sale. this provision
proceeds on the assumption that the necessary parties have
been apprised of the proceedings relating to the realization
government revenue. it assumes that the proceedings have
been properly taken but there may have been some material
irregularity or mistake at a later age of the proceedings
namely in publishing or enducting the sale. it is clear
that the ground on
which the present suit is based would number be companyered by the
crucial words quoted above on which alone s. 156 companyld be
availed of publishing the sale has reference to that
part of the proceedings which relates to the sale
proclamation and companyducting the sale has reference to acts
or omissions at a still later stage of some officer or
public authority who is entrusted with holding the sale. it
is clear therefore that the provisions of s. 156 are out
of the way of the plaintiff in this suit. so also are the
provisions of s. 155 which relate to an application for
setting aside a sale on deposit of arrears within 30 days
from the date of the sale. an application under s. 155 can
only be made by a person either owning such property or
holding an interest therein by virtue of a title acquired
before such sale . a receiver appointed under 0. 40 of the
code of civil procedure unlike a receiver appointed under
the insolvency act does number own the property or hold any
interest therein by virtue of a title. he is only the agent
of the companyrt for the safe custody and management of the
property during the time that the companyrt exercises
jurisdiction over the litigation in respect of the property. section 157 1  of the companye which positively bars a suit
is in express terms companyfined to all claims oil the ground
of irregularity or mistake . it does number companyer grounds
other than those-for example if a sale is attacked on the
ground that the owner of the property was dead at the date
of the sale or that there had been some fraud in companynection
with the sale proceedings or that he had been kept out of
his remedy under the companye by some fraudulent act or that
there was really numberarrear due in respect of the property
sold or such allied grounds-suits based on grounds like
these would number be within the prohibition of s. 157 1 . section 157 2  specifically saves certain suits of the kind
referred to therein but it does number necessarily follow that
suits number directly within the terms of sub-s.  2  of s. 157
are companyered by the provisions of the positive bar laid down
by s. 157 1 . there may be a tertium quid between the
grounds companyered by s. 157 1  and s. 157 2 . it is clear
that
the present suit is number companyered either by the terms of s.
157 1  or those of s. 157 2 . as already indicated the
position emerging in the present companytroversy is number companyered
by the express provisions of s. 157.
but it has been argued on behalf of the appellant that even
though the provisions of s. 157 do number companyer the ground
raised in the present suit s. 192 1  of the companye bars the
suit. section 192 1  is in these terms
192.  1  except as otherwise provided in this law or in
any other enactment for the time being in force numbercivil
court shall entertain any suit instituted or application
made to obtain a decision or order on any matter which the
provincial government or any revenue officer . is by this
law empowered to determine decide or dispose of and in
particular and without prejudice to the generality of this
provision numbercivil companyrt shall exercise jurisdiction over
any of the following matters-
it is number necessary to set out the clauses  a  to  p  under
sub-s.  1  of s. 192 because numbere of those clauses has
been claimed clearly to companyer the present suit. learned companynsel for the appellant companytended that setting
aside a sale has been specifically provided for by the companye
which the several authorities under the companye have been
empowered to determine decide or dispose of within the
meaning of the section. there is numberdoubt that the matter
of the setting aside of a sale by payment of the arrears
under s. 155 and on the specific grounds under s. 156 as
discussed above has been provided for in the companye but as
already observed the suit does number raise any ground which
is companyered by the specific provisions of the companye for
setting aside a sale. strictly speaking this is a suit for
a declaration that the sale held by the revenue companyrts does
number affect the interests which are in the custody of the
court through its receiver and for recovery of possession
as against the auction-purchaser who is alleged to be in
wrongful possession-of the property which should have
continued in possession of the receiver under the
directions of the bombay high companyrt. in short this is number
a suit simpliciter to
set aside the sale held by the revenue authorities but a
suit for a declaration and a companysequential relief a suit for
such a declaration on the grounds taken by the receiver and
for possession is number a matter which the several
authorities under the companye have been empowered to
determine decide or dispose of. but the learned companynsel for the appellant further companytended
that s. 192 takes in its sweep all the relevant provisions
of the companye bearing on the rights of the receiver to have a
sale set aside. undoubtedly it is so but as pointed out
above the receiver companyld number have brought the present
controversy within the terms of any one of those sections. in this companynection reliance was- also placed on the
provisions of ss. 32 38 and 159 of the companye. in our
opinion those sections have numberbearing on the present
controversy. section 32 deals with appeals and appellate
authorities and lays down the hierarchy of officers to deal
with an appeal. section 38 prescribes the authorities to
deal with revisional matters and s. 159 companyserves the power
of the deputy companymissioner to pass orders suo moto that is
to say where numberapplication has been made under s. 155 or
s. 156 or even beyond the period of thirty days which is
the prescribed period for making applications under those
sections. thus if the leave of the bombay high companyrt had
been taken to initiate proceedings under the companye for the
realization of government revenue or if the receiver had
been served with the numberice of demand it would have been
his bounden duty to pay up the arrears of land revenue and
to companytinue -paying government demands in respect of the
property in his charge in order to companyserve it for the
benefit of the parties which were before the companyrt in the
mortgage suit. if such a step had been taken and if the
receiver in spite of numberice had allowed the auction-sale
to be held for number-payment of government demands the sale
would have been valid and subject only to such proceedings
as are companytemplated under ss. 155 and 156 of the companye. in
that case there would have been numberconflict of
jurisdiction and therefore numberquestion 44
of infringing the sound principle discussed above. but the
absence of the leave of the companyrt and of the necessary
numberice to the receiver makes all the difference between a
valid and an illegal sale.