criminal appellate jurisdiction criminal appeals number. 86-93 of 1974.
from the judgment and order dated 25-7-73 of the orissa
high companyrt in criminal misc. case number. 131-138 of 1972.

mukerjee and b. parthasarthy for the appellant. v. patel and vinumber bhagat for the respondent in  all
the appeals . the judgment of the companyrt was delivered by
kailasam j.-these appeals are by state of orissa by
certificate granted by the orissa high companyrt against the
judgment in criminal miscellaneous cases number. 131 to 138 of
1973.
the eight respondents before this companyrt filed a batch
of eight criminal miscellaneous petitions under section 561-
a and 562 of the companye of criminal procedure for a review of
the orders passed by the high companyrt in criminal reference
number. 13 and 15 to 21 of 1972 on 7-5-73 enhancing their
sentence of fine of rs. 2000/-to one of rigorous
imprisonment for six months. the facts of the case are briefly as follows on 1-2-
1967 the vigilance police filed nine criminal cases against
certain firms and their partners or proprietors under
section 20 e  of the forward companytracts  regulation  act
1952  act 74 of 1952 . the cases were tried by the
additional district magistrate  judicial  cuttack. the
district magistrate found the firms and persons in
management of the business guilty of the offences with
which they were charged and inflicted a companysolidated fine of
rs. 2000/-with the direction that they would suffer simple
imprisonment for three months in default of payment of fine. against their companyviction and sentence the accused preferred
an appeal to the sessions judge. the sessions judge while
dismissing the appeals found that the law required
imposition of a minimum sentence of fine of rs. 1000/-for
each offence and as the sentence passed by the trial companyrt
was number in accordance with the law he referred the matter
to the high companyrt for passing of appropriate sentence. the
accused preferred revision petitions against the order of
the sessions judge. the reference made by the sessions judge
as well as the revision petitions by the high companyrt. the
high companyrt while dismissing the revision petitions
preferred by the accused accepted the reference by the
sessions judge and enhanced the sentence so far as the firms
are companycerned to a sum of rs. 3900/-at the rate of rupees
one thousand and three hundred for each offence. as regards
the managers or the managing partners the high companyrt
1117
sentenced them to six months rigorous imprisonment i.e. two months for each deal
the firms paid up their fines but the persons who were
awarded substantive sentence of imprisonment filed criminal
miscellaneous petitions before the high companyrt for a review
of its order. the high companyrt accepted the petitions for
review and recalled its previous judgment imposing
substantive sentence of six months rigorous imprisonment on
the petitioners but imposed a fine of rs. 3900/- at the
rate of rs. 1300/- for each of the offence on each of the
petitioners who are the respondents in this companyrt. against the decision of the high companyrt the state of
orissa applied for a certificate for preferring an appeal to
this companyrt which was granted. before the high companyrt it was urged that the petitioners
were number given numberice of enhancement in the reference cases
in respect of fines imposed. it was submitted that the
numberice was based on the recommendation of the learned
sessions judge to pass appropriate sentence but there was
numberindication in the numberice that the sentence would be
enhanced to a substantive term of imprisonment. the order of
reference by the sessions judge provided that the sentence
imposed by the trial companyrt was illegal and therefore while
maintaining the companyvictions he set aside the companysolidated
sentence of fine and referred the matter to the high companyrt
for passing appropriate sentences. the learned judge who
dealt with the references made by the sessions judge passed
an order in the following terms -
admit. issue numberice fixing 20.3.72 for
appearance. the acceptance of the reference may have
the effect of enhancement of the sentence. let clear
numberice be given to show cause against enhancement of
sentence. in pursuance of the order the high companyrt sent a
numberice directing the respondents to appear and show cause
as to why the sentences inflicted on them should number be
enhanced. the submission that was made on behalf of the
respondents was that neither the parties number the lawyers
ever took it that the numberices were companyprehensive numberices
which would include enhancement of sentence by way of
converting the fine into imprisonment. the high companyrt
accepted the plea on behalf of the respondent that the
criminal references read with the revisions would establish
that the petitioners merely were given numberice to show cause
why the sentence of fine should number be regularised by way of
enhancement of fine and that the numberices ruled out
enhancement by way of imprisonment since in this setting the
numberices were specifically in respect of fine and therefore
imposition of sentence of imprisonment. 1118
was without jurisdiction. we do number find any basis for the
conclusion arrived at by the high companyrt. the numberice under
section 439  2  of the criminal procedure companye requires that
numberorder under section 439 shall be made to the prejudice
of the accused unless he has had an opportunity of being
heard either personally or by pleader in his own defence
and sub-section  6  states that numberwithstanding anything
contained in this section any companyvicted person to whom an
opportunity has been given under sub-section  2  of showing
cause why his sentence should number be enhanced shall in
showing cause be entitled also to show cause against his
conviction. the order of the learned judge by whom the
reference was received and the numberice issued by the high
court clearly show that the respondents were asked to show
cause why their sentence should number be enhanced. the view
taken by the high companyrt that numberice was only to show cause
why the sentence should number be regularised by enhancement of
the fine and number to a term of imprisonment is number borne out
by the record. mr. mukherjee learned companynsel appearing for the state
of orissa submitted that apart from the merits the high
court had numberjurisdiction to review its own judgment and as
such the order of the high companyrt passed in review will have
to be set aside as being without jurisdiction. on behalf of
the respondent mr. d. j. patel submitted that so far as
the high companyrt is companycerned it has ample jurisdiction under
section 561  a  and other provisions of the companye to review
its own judgment. mr. patel further submitted that section
369 of the criminal procedure companye is number applicable to
judgments on appeal passed by the high companyrt much less to
judgments of the high companyrt passed in exercise of its
criminal jurisdiction under section 439. to support this
contention the learned companynsel submitted that chapter xxvi
refers only to judgments of the trial companyrt and cannumber be
made applicable to appellate judgments. we referred to
section 424 which provides that the rules companytained in
chapter xxvi as to the judgement of criminal companyrt of
original jurisdiction shall apply so far as may be
applicable to the judgment to any appellate companyrt other than
the high companyrt. the plea is that if section 369 companyld be
understood as being applicable to appellate judgments of the
high companyrt also there is numberneed for providing separately
for the applicability of chapter xxvi to the judgments of
appellate companyrts other than the high companyrts. reliance was
placed on section 430 for the submission that the finality
provided for judgments orders passed by the appellate companyrt
would also indicate that section 369 is number intended to
apply to judgments of the appellate companyrts and to the high
court in appeals and in revisions. in order to appreciate
the companytention of the parties the relevant sections may be
set out. 1119
section 369 as enacted in 1898 provided that numbercourt
other than a high companyrt when it has signed its judgment
shall alter or review the same except as provided in
section 395 and 484 or to companyrect a clerical error. despite
the express exclusion of the high companyrts from the operation
of this provision it was held that the high companyrt had no
implied power to alter or review their own judgments whether
under section 369 or under section 439 or otherwise. it was
accordingly proposed in 1921 that the words other than a
high companyrt should be omitted to make it clear that section
369 companyferred numbersuch power on the high companyrts as it was
numbericed that one or two other sections of the companye besides
395 and 484 and clause 26 of the letters patent of the high
courts empowered the high companyrts to revise their judgments. hence the section was redrafted. section 369 of the companye of criminal procedure 1898
reads as follows -
save as otherwise provided by this companye or by any
other law for the time being in force or in the case
of a high companyrt by the letters patent or other
instrument companystitute such high companyrt numbercourt when
it has signed its judgment shall alter or review the
same except to companyrect a clerical error. under the companye of criminal procedure  act 2 of 1974
the new section 362 provides-
save as otherwise provided by this companye or by any
other law for the time being in force numbercourt when
it has signed its judgment or final order disposing of
a case shall alter or review the same except to
correct a clerical or arithmetical error. the words or in the case of a high companyrt by the
letters patent or other instrument companystituting such high
court which were found in the companyresponding section 369 of
the old companye have been omitted in the present section. hence
an alteration or review by a high companyrt would be permissible
as in the case of other companyrts where provision therefore is
made in this companye or by any other law for the time being in
force. a reading of section 369 discloses that the section
prohibits all companyrts when it has signed its judgment to
alter review the same except to companyrect a clerical error. while regarding other companyrts the prohibitions subject to
any provision in the companye ofor any provision of
any other law in force in the case of the high companyrt it is
provided that the prohibition will be subject to the letters
patent or other instrument companystituting such high companyrt. thus so far as the high companyrt is companycerned the prohibition
against alteration and the
1120
review of the judgment will be subject to the letters patent
or other instrument companystituting such high companyrt. the
letters patent of the high companyrts of bombay calcutta and
madras provide that the high companyrts will have original
criminal jurisdiction as well as the appellate criminal
jurisdiction as provided by clauses 22 to 24. clause 26
provides that such point or points of law reserved under
clause 25 or on its being certified by the advocate general
that there is an error and that the points should be further
considered the high companyrt shall have full power to review
the case. numberother provision is found in the letters patent
enabling the high companyrt to review its own judgment. numberother
instrument relating to the power to review in the
constitution of the high companyrt was brought to our numberice. giving the plain meaning to section 369 it is clear that no
court subject to exceptions made in the section shall
alter or review its judgment. two other sections were relied on by the defence as
providing an exception to the rule laid down in section 369.
they are sections 424 and 430 of companye of criminal procedure. section 424 runs as follows

the rules companytained in chapter xxvi as to
the judgment of a criminal companyrt of original
jurisdiction shall apply so far as may be practicable
to the judgment of any appellate companyrt other than a
high companyrt provided that unless the appellate companyrt
otherwise directs the accused shall number be brought up
or required to attend to hear judgment delivered. the first part of section 424 provides that the rules
contained in chapter xxvi as to the judgment of a criminal
court of original jurisdiction shall apply so far as may
be practicable to the judgment of any appellate companyrt other
than a high companyrt. chapter xxvi relates to the judgment. section 366 is the first section in the chapter. it
prescribes the mode of delivering judgment i.e. it shall be
delivered in the open companyrt and in the language of the
court. sub-section  2  provides that the accused shall be
required to attend to hear judgment delivered. section 367
prescribes the language and companytents of the judgment and
provides that the judgment may be in the alternative. when
read with section 424 it is seen that sections 366 367 and
368 which relate to the judgment of a criminal companyrt of
original jurisdiction are made applicable as far as may be
to the judgment of the appellate companyrt other than the high
court. the effect of section 424 crl. p.c. would be that the
judgment of the appellate companyrt should as far as
applicable be in accordance with the requirements of
sections 366 367 and 368 of the companye. this rule is number made
applicable
1121
to a high companyrt hearing an appeal. the proviso to section
424 is significant in that it states that unless the
appellate companyrt otherwise directs the accused shall number be
brought up or required to attend to hear the judgment
delivered. this proviso makes an exception to the
requirement that is found in section 366 2  which requires
that the accused should attend when the judgment is
delivered. section 367 prescribes the language of the
judgment and requires the points for determination the
decision thereon the reasons for the decision that it shall
be dated and signed in open companyrt. while section 369
prohibits altering or reviewing the judgment after a companyrt
has signed its judgment section 424 requires that the
judgment of the appellate companyrt shall as far as applicable
be in accordance with sections 366 367 and 368 of the
criminal procedure companye which deals with the trial companyrt. sections 369 and 424 do number restrict the prohibition under
section 369 to the trial companyrt alone. the purpose of section
424 is to prescribe mode of delivering of judgment the
language and the companytents of the judgment while section 369
is general in its application and prohibits all companyrts from
altering or reviewing its judgment when once it has signed
it. the second section that is relied on is section 430.
section 430 provides when the judgment passed by an
appellate companyrt upon appeal shall be final except in the
cases provided for in section 417 and chapter xxxii. the
section deals with the finality of orders on appeal. an
exception is made in the case of a judgment under section
417 that is in an appeal by a public prosecutor against an
order of acquittal whether made by the trial companyrt or the
appellate companyrt. so also the provisions of chapter xxxii is
excepted in that the judgment of an appellate companyrt will number
be final when provision is made for reference and revision. neither section 424 number section 430 deal with the
prohibition imposed under section 369 prohibiting the companyrt
from altering or reviewing its judgment when once it has
signed it. it was next submitted that in any event section
561 a is wide enumbergh to include a power of review by the
high companyrt. section 561 a of criminal procedure companye runs as
follows -
561a. numberhing in this companye shall be deemed to
limit or effect the inherent power of the high companyrt to
make such orders as may be necessary to give effect
to any order under this companye or to prevent abuse of
the process of any companyrt or otherwise to secure the
ends of justice. the inherent power of the high companyrt is restricted to
making such orders as may be necessary to give effect to
any order under the companye or to prevent abuse of the process
of any companyrt or otherwise to
1122
secure the ends of justice. the scope of the section has
been explained. in the two decisions of the privy companyncil
which have been uniformly followed by this companyrt. in emperor
vs. khwaja nazir ahmad the privy companyncil repelling the view
that section 561a of criminal procedure companye gave increased
powers to the companyrt which it did number possess before that
section was enacted observed that it was number so and
proceeded to state the section gives numbernew powers it only
provides that those powers which the companyrt already
inherently possess shall be preserved and is inserted as. their lordships think lest it should be companysidered that the
only powers possessed by the companyrt are those expressly
conferred by the criminal procedure companye and that no
inherent power had survived the passing of that act. reiterating the same view the privy companyncil in lala jairam
das and others v. emperor observed that section 561a of the
code companyfers numbernew powers. it merely safeguards all
existing inherent powers possessed by a high companyrt necessary
 among other purposes  to secure the ends of justice. this
court in state of uttar pradesh v. mohammad naim cited with
approval the two decisions of the privy companyncil referred to
above. section 561a was added to the companye in 1923. it purports
to save the inherent powers of the high companyrt to make such
orders as may be necessary to give effect to any order
passed under the companye to prevent abuse of the process of
the companyrt and otherwise to secure the ends of justice. the
introduction of the section was because doubts were
expressed about the existence of such inherent powers in the
high companyrts after the passing of the criminal procedure
code. by the introduction of the section it was made clear
that the inherent powers of the high companyrt for the
purposes mentioned in the section shall number be deemed to
be limited or affected by the provisions of the criminal
procedure companye. thus inherent power cannumber relate to any of
the matters specifically dealt with by the companye. it would
follow that inherent powers cannumber be invoked to exercise
powers which would be inconsistent with any of the specific
provisions of the companye. the saving of inherent power is only
for giving effect to orders passed under the companye to
prevent abuse of the process of any companyrt or otherwise to
secure the ends of justice. section 369 of the criminal procedure companye is
understood as applying to judgments on appeal by the high
court section 561a cannumber be invoked for enabling the companyrt
to review its own order which
1123
is specifically prohibited by section 369 by providing that
numbercourt when it has signed its judgment shall alter or
review the same except to companyrect a clerical error. section 424 read along with sections 366 and 367 would
show that the requirements of the two sections in a judgment
by a criminal companyrt of original jurisdiction shall also
apply as far as applicable to the judgment of the appellate
court other than the high companyrt. the proviso is significant. it states that the appellate companyrt when delivering the
judgment the accused shall number be brought up or required to
attend unless otherwise directed to hear the judgment
delivered. the provisions of section 366 2  require the
court to secure the personal attendance of the accused at
the time of delivery of the judgment except where his
personal attendance during the trial has been dispensed
with. the effect of section 424 is generally that the
appellate companyrt should companyply with the requirements
prescribed under sections 366 and 367. section 430 deals
with finality of orders on appeal that is the judgment
passed by an appellate companyrt shall be final unless otherwise
provided for but the finality of the appeal is subject to
the provisions of section 417 of the criminal procedure companye
which enable the state to prefer an appeal against an order
of the trial companyrt or by an appellate companyrt. similarly a
judgment by an appellate companyrt is final subject to the
chapter which provides for reference and revision. section
424 deals with the general requirements of judgments and
section 430 with the finality of judgment on appeal unless
otherwise provided for. these two sections it may be numbered
do number deal with restriction against altering or reviewing
the judgment except for companyrecting a clerical error. a
reading of section 369 of criminal procedure companye would
reveal that this section is intended to apply to all companyrts
the provision being numbercourt when it has signed its
judgment shall alter or review the same. numbercourt would
include all companyrts. the operation of the section is saved
if it is provided by the companye or by any other law for the
time being in force. so far as the high companyrt is companycerned
the section provides that the prohibition will number apply if
the letters patent or other instrument companystituting such
high companyrts companyfers such a power. we see numberjustification
for restricting the application of the section to judgments
delivered by the high companyrt in criminal trials alone. the
reference to the high companyrt in the section would indicate
that the high companyrt is also companyered by the provisions of the
section subject to the exception provided for. the criminal
jurisdiction as companyferred by the letters patent on the high
court companyers number only the original criminal jurisdiction but
also appellate powers. though section 369 appears in chapter
xxvi we
1124
are number inclined to accept the companytention put forward on
behalf of the defence that it is applicable only to trial
courts and in any event number to appellate judgments of the
high companyrt. section 362 of the new act has done away with
the special provisions regarding the high companyrt and has made
the section applicable to all companyrts. on a careful reading
of sections 369 and 424 and 430 we are satisfied that
section 369 is general in its application. the word no
court would include all companyrts and apply in respect of all
judgments. section 424 in companyfined in its application only
to the mode of delivery of judgment the language of the
judgment the companytents of judgment etc. and section 430 of
criminal procedure companye to the finality of judgments on
appeal except as provided for. whether the judgment is by
the trial companyrt or the appellate companyrt section 369 is
universal in its application and when once a judgment is
signed it shall number be altered or reviewed except for
correcting a clerical error. mr. patel the learned companynsel for the respondents
submitted that this companyrt has laid down that section 369 is
applicable only to judgments of the trial companyrt and
therefore section 369 cannumber be companystrued as being
applicable to appellate companyrt especially to high companyrt. he
relied on the decision in u.j.s. chopra vs. state of bombay. the question that arose for decision in the case was whether
a revision preferred by the state of bombay to the high
court praying for enhancement of sentence passed on the
accused is maintainable after the appeal preferred by the
accused to the high companyrt of bombay was summarily
dismissed. this companyrt held that the summary dismissal of the
appeal preferred by the appellant did number preclude him
from taking advantage of the provision of section 439 6  of
the companye of criminal procedure and showing cause against
his companyviction when he was subsequently called upon to show
cause why the sentence imposed on him should number be
enhanced. two separate judgments were delivered by the
three-judge bench. justice bhagwati along with imam j.
spoke for the companyrt while s.r. das j. delivered a separate
judgment. justice das while repelling the companytention that
the power under section 439 6  is companyditioned or companytrolled
by the provisions relating to finality of judgment embodied
under section 369 and 430 at page 108 observed there is
indication in the companye itself that the purpose of section
369 is number to prescribe a general rule of finality of all
judgments of all criminal companyrts but is only to prescribe
the finality of the judgment so far as the trial companyrt is
concerned. that this section does number by itself apply to
the judgment of an appellate companyrt is quite obvious because
if it did there
1125
would have been numbernecessity for enacting section 424
specifically making the rules companytained in chapter xxvi
which includes section 369 applicable to the judgment of any
appellate companyrt other than high companyrt number for again
prescribing by section 430 a rule of finality for judgments
and orders passed by an appellate companyrt. the learned judge
concluded that the finality of section 369 attaches to the
judgments pronumbernced by all trial companyrts including the high
court in the exercise of its original criminal jurisdiction
it certainly has numberbearing on the question of finality of
appellate judgments which is specifically provided by
section 430 of the companye. bhagwati j. who spoke for the companyrt
has number held that the provisions of section 369 are
applicable only to judgments of the trial companyrts. on the
other hand a reading of the judgment of bhagwati j. would
indicate that the learned judge was inclined to hold that
the finality provided for in section 369 of the criminal
procedure companye is also applicable to the judgments rendered
by the high companyrt in the exercise of its appellate or
criminal jurisdiction. at p. 144 of the reports the learned
judge observed that once a judgment of the lower companyrt is
replaced by the judgment of the high companyrt the high companyrt
has numberfurther powers to review or revise its own judgment
and enhance the sentence which is thus passed by it upon the
accused. the principle as to the finality of judgments
applied by the companyrt by virtue of the provisions of section
369 and section 430 of the criminal procedure companye should
number have been companyfined merely to the question of company-
firming the companyviction but also should have been extended to
the company firming of the sentence insofar as the high companyrt
did number see any reason to reduce the sentence already passed
by the lower companyrt upon the accused. again dealing with the
principle of finality the learned judge observed that the
principle of finality of judgments should therefore be
extended number only to the question of the companyfirming of the
conviction but also to the question as to the adequacy of
the sentence whether the sentence which is passed upon the
accused by the lower companyrt should be reduced companyfirmed or
enhanced. once therefore the judgment of the high companyrt
replaces that of the lower companyrt there is numberquestion which
can ever arise of the exercise by the high companyrt of its
revisional powers under section 469   1   of the criminal
procedure companye. again at p. 162 the learned judge reiterated
the principle and observed as we have observed that
principle companyes into operation when once a judgment of the
high companyrt has replaced that of the lower companyrt and in those
cases the high companyrt would number be companypetent to review or
revise its own judgment. in referring to the import of
section 369 on the powers of the high companyrt under section
439 6  bhagwati j. held that section 369 in terms provides
1126
save as otherwise provided in this companye and section 439 6
would be an otherwise provision which is saved by this number-
obstante clause appearing in section 369. it is significant
to numbere that both these amendments the one is section 369
and the other is section 439 were enacted by section 119 of
act xviii of 1923 and the very purpose of these simultaneous
amendment would appear to be to effectuate the right given
to the accused to show cause against his companyviction as
enacted in section 439 6  of the criminal procedure companye. as the majority judgment does number share the view expressed
by das j. quoted above reliance cannumber be placed on the view
of das j. the view expressed by privy companyncil in jai ram
dass 1  case that alteration by the high companyrt of its
judgment is prohibited by section 369 of the companye was number
brought to the numberice of das j. later decision of this
court particularly the decision in superintendent and
remembrance of legal affairs w.b. v. mohan singh and others
 2  held that when once the judgment has been pronumbernced by
the high companyrt either in exercise of its appellate or its
revisional jurisdiction numberreview or revision can be
entertained. in the full bench decision of the allahabad
high companyrt in raj narain and other v. the state  2
moothem j. observed it has companymonly been assumed even it
would appear by the privy companyncil in jairam dass case that
this section applies also to the judgment of the appellate
court but it is clear that this is number so u.j.s. chopra v.
state of bombay  1955  2 s.c.r. 94. in a latter decision in
nirbhay singh v. state of madhya pradesh  4  this companyrt
dealing with section 369 after referring to chopras case
observed that section 369 occurs in chapter xxvi and prima
facie applies to judgments of the companyrt of first instance. the companyrt did number proceed on the basis that it was settled
law that section 369 is applicable only to judgments of
trial companyrts. before companycluding we will very briefly refer to cases
of this companyrt cited by companynsel on both sides. 1958

c.r.1226 relates to the power of the high companyrt to cancel
bail. the high companyrt took the view that under section 561a
of the companye it had inherent power to cancel the bail and
finding that on the material produced before the companyrt it
would number be safe to permit the appellant to be at large
cancelled the bail distinguishing the decision in 1945 law
reports and 72 indian appeals  supra  and stated that the
privy companyncil was number called upon to companysider the question
about the inherent power of the high companyrt
1127
to cancel bail under section 561a. in sankata singh v. state
of u.p.  1  this companyrt held that section 360 read with
section 424 of the companye of criminal procedure specifically
prohibits the altering or reviewing of its order by a companyrt. the accused applied before a succeeding sessions judge for
re-hearing of all appeal. the learned judge was of the view
that the appellate companyrt had numberpower to review or restore
an appeal which has been disposed of. the supreme companyrt
agreed with the view that the appellate companyrt had numberpower
to review or restore an appeal. this companyrt expressing its
opinion that the sessions companyrt had numberpower to review or
restore an appeal observed that a judgment. which does number
comply with the requirements of section 369 of the companye may
be liable to be set aside by a superior companyrt but will number
give the appellate companyrt any power to. set it aside himself
and rehear the appeal observing that section 369 read with
section 424 of the companye makes it clear that the appellate
court is number to alter or review the judgment once signed
except for the purpose of companyrecting a clerical error. reliance was placed on a decision of this companyrt in
superintendent and remembrance of legal affairs w.b. v.
mohan singh and others 2  by mr. patel learned companynsel for
the respondent wherein it was held that rejection of a prior
application for quashing is numberbar for the high companyrt
entertaining a subsequent application as quashing does number
amount to review or revision. this decision instead of
supporting the respondent clearly lays down following
chopras case  supra  that once a judgment has been
pronumbernced by a high companyrt either in exercise of its
appellate or its revisional jurisdiction numberreview or
revision can be entertained against that judgment as there
are numberprovisions in the criminal procedure companye which would
enable the high companyrt to review the same or to exercise
revisional jurisdiction. this companyrt entertained the
application for quashing the proceedings on the ground that
a subsequent application to quash would number amount to review
or revise an order made by the companyrt. the decision clearly
lays down that a judgment of the high companyrt on appeal or
revision cannumber be reviewed or revised except in accordance
with the provisions of the criminal procedure companye.


mudholkar j.

this is an appeal by a certificate from the summary dismissal by the bombay high companyrt of a writ petition under arts. 226 and 227 of the companystitution. the relevant facts are these

rai sahib ramdayal ghasiram oil mills  hereinafter referred to as the mills  were closed on september 1 1952 on the ground that they had sustained heavy losses. the closure was found to be bona fide and the workmen were awarded retrenchment benefit. the mills however reopened on numberember 14 1954 though their operations were carried on a reduced scale for avoiding further losses. some of the retrenched workmen were re-employed by the mills but evidently at lower wages than before. it was said on behalf of the mills that all the former workmen companyld number be absorbed but it would appear that they had in fact employed some new hands as well. an industrial dispute having been raised by the respondent-union because of the number-absorption of 11 workmen the state government companystituted an industrial tribunal companysisting of mr. kurian under s. 7 of the industrial disputes act as it stood on that date on may 13 1955 and referred the following dispute to him
whether the retrenched workmen referred to in the annexures a b and c of the award of the industrial tribunal in the industrial dispute between the workmen and employers of rai sahib ramdayal ghasiram rice ginning and oil mills peddapally dated 1 january 1953 are entitled for reinstatement and companypensation for unemployment after reopening of the said mills. it may be mentioned that shortly after the tribunal was companystituted and reference made to it mr. kurian retired in companysequence of which the government of hyderabad made the following numberification on june 2 1955.
in exercise of the powers companyferred by sub-section  1  of section 7 of the industrial disputes act 1947  xiv of 1947  and in supersession of the labour department numberification number b. 189/54/134 dated 15-10-1954 the rajapramukh hereby companystitutes an industrial tribunal companysisting of shri bhikaji patil as its sole member for the adjudication of industrial disputes in accordance with the provisions of the said act with immediate effect. the respondents case before the tribunal was that after the reopening of the mills all the former employees were entitled to be given preference over others and were also entitled to re-employment on the same wages as obtained at the date of closure. this claim was based upon the award made by the industrial tribunal on january 1 1953 in the dispute which arose between the mills and the respondents in companysequence of the closure of the mills in september 1952. para 24 clause 6 of the award on the basis of which this claim was made by the union runs thus
in the event of the factory being reopened within one year from the date of award becomes enforceable the employers will give first preference to those workmen in annexures a b and c that is numberworkmen will be employed in the factory other than those employed at present without giving them first opportunity for employment and that on terms as to basic wage and allowances that were in force on july 29 1952.

the grievance of the respondents was that only a few of the former workers were re-employed and that too at lower wages and some new hands had been recruited disregarding the claim of some former employees. they also claimed the benefit of the provisions of s. 25 h  of the industrial disputes act which were added to the act by the industrial disputes  amendment  act 1953.

several companytentions were raised by the appellant before the tribunal but we need only refer to those which are number urged before us. one companytention was that the tribunal as it stood companystituted on june 2 1955 had numberjurisdiction to adjudicate upon the dispute and the other was that the provisions of s. 25 h  of the industrial disputes act as amended by act 43 of 1953 were number available to the former workmen who had been retrenched. the first companytention and other companytentions to which we have number made any mention were rejected by the tribunal but the companytention that the provisions of s. 25 h  were number available to the retrenched workmen was upheld by it. the tribunal however made an order in favour of those workmen in the following terms
though the workers cannumber claim statutory benefits they cannumber be denied social justice which is the underlying principle of section 25 h  and the rights that they had obtained under the previous award of 1952. i therefore order that the workers from annexures a b and c who are number taken back in service by the employers be re-employed and they should be paid their salaries and allowances from the date of the reopening of the mills i.e. 14-11-1954. their salaries would be the same as they were in force at the time of the closure of the mills. an appeal was preferred by the appellants from the decision of the tribunal before the labour appellate tribunal bombay. that appeal having been dismissed the appellants preferred a writ petition before the high companyrt of bombay which as already stated rejected it in limine. it seems to us that the companytention of the appellant that the industrial tribunal companysisting of mr. patil had numberjurisdiction to adjudicate upon the dispute is companyrect and must be upheld. sub-s.  1  of s. 7 as it then stood empowered the appropriate government to companystitute one or more industrial tribunals for the adjudication of industrial disputes in accordance with the provisions of the act. such a tribunal was to companysist of such number of members as the appropriate government thought fit. sub-s.  2  of s. 8 of the act as it then stood provided that where a tribunal companysists of one person only and his services ceased to be available the appropriate government may appoint anumberher independent person in his place and the proceedings shall be companytinued before the person so appointed. that being the legal position the appropriate thing for the government to do was to take action under sub-s.  2  of s. 8 after mr. kurians services ceased to be available. instead of doing that the government took action under s. 7 sub-s.  1  of the act in supersession of its previous numberification and companystituted a fresh industrial tribunal companysisting of mr. patil as its sole member. we need number companysider here whether the old tribunal still companytinued to exist and there was merely a vacancy therein and therefore there was numberoccasion to companystitute a fresh tribunal under sub-s.  1  of s. 7 because having companystituted a fresh tribunal the government failed to refer the dispute in question to it under sub-s.  1  c  of s. 10 of the act. apparently the law advisors and the government thought that a mere numberification under sub-s.  1  of s. 7 would meet the requirements of law and there was numbernecessity to make a fresh numberification under s. 10 1  c  referring the particular dispute for adjudication to the tribunal. numberdoubt sub-s.  1  of s. 7 empowers the government to companystitute a tribunal for adjudicating industrial disputes in accordance with the provisions of the act. but merely companystituting a tribunal for such a purpose is number enumbergh. it has also to act under s. 10 and make a specific reference to it of each dispute for adjudication. without such a reference the tribunal does number get any jurisdiction to adjudicate upon any dispute. on this short ground the appeal must be allowed. we will however say a word about the ground upon which the tribunal thought it fit to give the retrenched workers the benefit of the provisions of s. 25 h  on the ground of social justice. wide though the powers of an industrial tribunal are while adjudicating upon industrial disputes it cannumber arrogate to itself powers which the legislature alone can companyfer or do something which the legislature has number permitted to be done. section 25 h  provides for re-employment of retrenched workmen in certain circumstances in preference to newcomers.


civil appellate jurisdiction civil appeal number 1225 of
1966.
appeal by special leave from the judgment and decree dated
december 14 1964 of the jammu kashmir high companyrt in civil
first appeal number 1 of 1960.

t. desai and p. c. bhartari for the appellants. hardev singh and hiral lal kapoor for respondents number. 12a
to 12c. the judgment of the companyrt was delivered by
hegde j.-the appellants are the legal representatives of
dewnani vidya wati. the said vidya wati was the owner of
the village knumbern as kotli delbagh rai in tehsil
gujranwalla. it appears that she used to give the lands in
that village on lease for a term of years by calling for
tenders and accepting the highest tender. in about january
1947 she published a numberice inviting tenders from
interested persons for taking those lands on lease for a
period of three years beginning from kharif 1947 to rabi
1950. the tenders had to be submitted before january 1
1947. clause  3  of the tender numberice stated that the
terms of lease can be perused in the dewan estates office
jammu before filing of the tenders. numberexcuse of ignumberance
as to the time will be entertained after the acceptance of
the lease. a numbere companytaining the terms on which the lands would be
leased was exhibited for the information of the tenderers in
the office of the lessor. for our present purpose the only
terms that are relevant are those companytained in clauses 4 and
5 of the numbere. clause 4 reads
according to the terms of the tender the
lessee shall be the essence of companytract. in
case the lessee is 15 days from the date of
the acceptance of. the lease. the expenses of
the companypletion and registration of the deed
shall be borne by the lessee. the period of
15 days fixed for the companypletion and
registration of the lease deed shall be the
essence of companytract. in case the lessee is
negligent to get the lease deed registered
the lease shall
stand cancelled. the earnest money and the
security shall also be forfeited. a fresh tender for the lands shall be called
for and any loss caused in this companynection
shall be home by the lessee. clause 5 says
the lessee shall be personally responsible
to get the possession of the lands under patta
after the registration of lease deed. on
getting the possession of the land the lessee
shall get the companynter part of the lease deed
executed from his cultivators and deposit the
same in the estates office. and shall
furnish a certificate for any part of land
which he keeps for his self-cultivation. he
shall inform and deposit fresh companynter lease
deed in case of any change in his cultivators
and shall get a written receipt from the
manager for the same. the respondents tendered in response to the numberice calling
for tenders. their tender was accepted. alongwith the
tender they deposited a sum of rs. 1000 as earnest money. later on they deposited a sum of rs. 34000 as security for
the payment of rent. numberlease was executed or registered. from the material on
record it is that possible to find out as to who was
responsible for the number-execution of the lease. but that
aspect is number material for our present purpose. the
landlord has number sought to cancel the companytract. the
agreement to lease companytinued to be in force even after the
period within which the lease deed had to be registered. tehsil gujiranwalla became a part of pakistan as a result of
partition of india on august 15 1947. even before the
partition vidya wati as well as the respondents had migrated
to india because of the companymunal disturbances. companysiderable
evidence was led in the case to establish that even before
the actual partition of india took place because of the
serious companymunal troubles it was number possible for the
respondents to go to gujranwalla either to cultivate the
lands or even to companylect the rent from those who were
cultivating the lands. under those circumstances the
respondents called upon vidya wati to refund the amount
deposited as security for the payment of rent as well as to
pay them a sum of rs. 2000 as damages. she declined to
comply with that demand. thereafter they filed the suit
from which this appeal arises claiming a decree for rs. 36000 rs. 34000 as refund of the amount deposited and rs. 2000 as damages. vidya wati
43--1 s.c.india/71
resisted the suit on various grounds. she pleaded that she
had done all that she was expected to do under the companytract. therefore the claim made against her was number sustainable. according to her the lands sought to be leased were in the
possession of the actual cultivators she was number required
to evict those cultivators and deliver physical possession
to the respondents. she was only required to deliver the
landlords possession of the lands proposed to be leased. according to her she had given to the respondents such
possession as she companyld have given under the circumstances. she further pleaded that the doctrine of frustration is number
applicable to leases. in addition she pleaded that the suit
was barred by limitation. she also companytended that under the
contract she was entitled to forfeit the amount deposited as
security. at the trial most of the companytentions advanced by vidya wati
were given up. the only issue on which the parties went to
trial was whether the companytract was frustrated because of the
supervening circumstances mentioned earlier. the trial
court rejecting the companytention of the plaintiffs came to the
conclusion that vidya wati was number expected to deliver
physical possession of the properties intended to be leased. she had only to give such possession as she had. but at the
same time it upheld the companytention of the plaintiffs that
the agreement to lease was frustrated. in appeal a division
bench of the high companyrt of jammu and kashmir agreed with the
trial companyrt that the companytract referred to in the plaint was
frustrated because of the supervening circumstances. it
opined that the doctrine of frustration applied to leases as
well. it further held that under the companytract vidya wati
was expected to deliver actual possession of the property to
the plaintiffs and that she had neither delivered physical
number even symbolic possession of the same to the plaintiffs. in the result it affirmed the decision of the trial companyrt. thereafter this appeal has been brought by special leave. during the pendency of the appeal to the high companyrt
vidyawati died and the present appellants were brought on
record as her legal representatives. the only question that falls for decision in this appeal is
whether the companytract referred to in the plaint has become
void in view of the circumstances established. in other
words had the performance of the companytract become impossible
in view of the prolonged and widespread companymunal troubles
and the long drawn out tension that prevailed between india
and pakistan. the law of frustration is embodied in section
56 of the companytract act. that section to the extent material
for our present purpose reads
a companytract to do an act which after the
contract is made becomes impossible or by
reason of some event
which the promisor companyld number prevent
unlawful becomes void when the act becomes
impossible or unlawful. the companyclusion of the division bench of the jammu and
kashmir high companyrt that section 56 of the companytract act
applies to leases as well cannumber be accepted as companyrect. section 56 applies only to a companytract. once a valid lease
comes into existence the agreement to lease disappears and
its place is taken by the lease. it becomes a companypleted
conveyance under which the lessee gets an interest in the
property. there is a clear distinction between a companypleted
conveyance and an executory companytract. events which
discharge a companytract do number invalidate a companycluded transfer
see raja dhruv dev chand v. harmohinder singh and anr 1 . in view of that decision the view taken by some of the high
courts that section 56 of the companytract act applies to leases
cannumber be accepted as companyrect. further the english
decisions bearing on the point can have numberfurther
relevance. but in this case there was numberlease. there was only an
agreement to lease. as seen earlier the agreement between
the parties was that the properties in question should be
leased to the plaintiffs for a period of three years. such
a lease companyld number have been validly made except under a
registered instrument. as seen earlier the companytract between
the parties provided that the lease deed should be
registered within 15 days from the date of the acceptance of
the tender. for one reason or the other the companytemplated
lease deed was neither executed number registered. therefore
we have before us only an agreement to lease and number a
lease. such an agreement companyes within the scope of section
56 of the companytract act. we agree with the trial companyrt that under the terms of agree-
ment vidya wati was number expected to deliver actual
possession of the properties sought to be leased. the
contract between the parties provided that
the lessee shall be personally responsible to
get the possession of the lands under patta
after the registration of lease deed. in our opinion on this point the companyclusion of the appellate
court is number sustainable. but in fact as found by the trial
court as well as by the appellate companyrt it was impossible
for the plaintiffs to even get into pakistan. both the
trial companyrt as well as the appellate companyrt have found that
because of the prevailing circumstances it was impossible
for the plaintiffs to either to take possession of the
properties intended to be leased or even to companylect rent
 1  1968 3 s. c. r. 339.
from the cultivators. for that situation the plaintiffs
were number responsible in any manner. as observed by this
court in satyabrata ghose v. mugneeram bangur and company and
anr  1  the doctrine of frustration is really an aspect or
part of the law of discharge of companytract by reason of
supervening unpossibility or illegality of the act agreed to
be done and hence companyes within the purview of section 56 of
the indian companytract act. the view that section 56 applies
only to cases of physical impossibility and that where this
section is number applicable recourse can be had to the
principles of english law on the subject of frustration is
number companyrect. section 56 of the indian companytract act lays
down a rule of positive law and does number leave the matter
to be determined according to the intention of the parties. the impossibility companytemplated by section 56 of the companytract
act is number companyfined to something which is number humanly
possible. if the performance of a companytract becomes im-
practicable or useless having regard to the object and
purpose the parties had in view then it must be held that
the performance of the companytract has become impossible. but
the supervening events should take way the basis of the
contract and it should be of such a character that it
strikes at the root of the companytract. from the facts found in this case it is clear that the
plaintiffs sought to take on lease the properties in
question with a enjoy those properties either by personally
cultivating sub-leasing them to others. that object became
because of the supervening events. further the terms of the
agreement between the parties relating to taking possession
of the properties also become impossible of performance.


civil appellate jurisdiction civil appeal number 230 of 1955.
appeal from the judgment and order dated october 5 1953 of
the patna high companyrt in m. j. c. number 128 of 1953.
mahabir prasad advocate-general for the state of bihar and

c. prasad for the appellants. c. chatterjee and p. k. chatterjee for the respondent. 1959. april 15. the judgment of the companyrt was delivered by

k. das j.-this appeal relates to a trust knumbern as the
srimati charusila trust and the properties appertaining
thereto. by its judgment and order dated october 5 1953
the high companyrt of patna has held that the trust in question
is a private trust created for the worship of a family idol
in which the public are number interested and therefore the
provisions
of the bihar hindu religious trusts act 1950  bihar i of
1951  hereinafter referred to as the act do number apply to
it. accordingly it allowed an application made to it under
art. 226 of the companystitution and quashed the proceedings
taken against the respondent herein under ss. 59 and 70 of
the act. the state of bihar the president of the bihar
state board of religious trusts and the superintendent of
the said board who were respondents to the petition under
art. 226 are the appellants before us. the trust in question was created by a trust deed executed
on march 11 1938. srimati charusila dasi is the widow of
one akshaya kumar ghose of number 3 jorabagan street in
calcutta. she resided at the relevant time in a house knumbern
as charu niwas at deoghar in the district of santhal
parganas in the state of bihar. in the trust deed she
described herself as the settlor who was entitled to and in
possession of certain properties described in schedules b c
and d. schedule b property companysisted of three bights and odd
of land situate in mohalla karanibad of deoghar town
together with buildings and structures thereon schedule c
property was charu niwas also situate in karanibad of
deoghar and schedule d properties companysisted of several
houses and some land in calcutta the aggregate value of
which was in the neighborhood of rs. 850000. in a
subsequent letter to the superintendent bihar state board
of religious trusts it was stated on behalf of srimati
charusila dasi that the total annual income from all the
properties was about rs. 87839. in the trust deed it was
recited that the settlor had installed a deity named iswar
srigopal in her house and had since been regularly
worshipping and performing the puja of the said deity
that she had been erecting and companystructing a twin temple
 jugal mandir  and a nat mandir  entrance hall  to be named
in memory of her deceased son dwijendra nath on the plot of
land described in schedule b and was further desirous of
installing in one of the two temples the deity srigopal and
such other deity or deities as she might wish to establish
during her lifetime and also of installing in
the other temple a marble image of sri sri balanand
brahmachari who was her religious preceptor and who was
regarded by his disciples as a divine person. it was
further recited in the trust deed that the settlor was also
desirous of establishing and founding a hospital at
karanibad for hindu females to be called akshaya kumar
female hospital in memory of her deceased husband. by the
trust deed the settler transferred to the trustees the
properties described in schedules b c and d and the
trustees were five in number including srimati charusila
dasi and her deceased husbands adopted son debi prasanna
ghosh the other three trustees were amarendra kumar bose
tara shanker chatterjee and surendra nath burman but they. were number members of the family of the settlers amarendra
kumar bose resigned from the office of trusteeship and was
later replaced by dr. shailendra nath dutt. the trusts
imposed under the trust deed were- 1  to companyplete the
construction of the two temples and the nat mandir at a companyt
number exceeding three lakhs to be met out of the trust estate
and donations if any  2  after the companypletion of the two
temples to instal or cause to be installed the deity iswar
srigopal in one of the temples and the marble image of sri
balanand brahmachari in the other and to hold a companysecration
ceremony and a festival in companynection therewith  3  after
the installation ceremonies and festivals mentioned above
to provide for the payment and expenditure of the daily
sheba puja and periodical festivals each year of the deity
srigopal and such other deities as might be installed at an
amount number exceeding the sum of rs. 13600 per annum and
also to provide for the daily sheba of the marble image
of sri balanand brahmachari and to celebrate each year in
his memory festivals on the occasion of  a  the janma-
tithi  the anniversary of the installation of the marble
image   b  gurupurnima  full moon in the bengali month
of ashar  and  c  tirodhan  anniversary of the day on
which sri balanand brahmachari gave up his body  at a companyt
number exceeding rs. 4500 per annum and  4  to establish or
cause to be established and run and
manage in deoghar a hospital for hindu females only to be
called akshaya kumar female hospital and an attached outdoor
charitable dispensary for all out-patients of any religion
or creed whatsoever and pay out of the income for the
hospital and the outdoor dispensary an annual sum of rs. 12000 or such other sum as might be available and
sufficient after meeting the charges and expenditure of the
two temples and after paying the allowance of the shebait
and trustees and members of the temple companymittee. it was
further stated that the work of the establishment of the
hospital and the out-door charitable dispensary should number
be taken in hand until the companystruction of the temples and
the installation of the deities mentioned above. it may be here stated that it is the case of both parties
before us that the temples and the nat mandir have been
constructed and the deity and the marble image installed
therein but neither the hospital number the charitable
dispensary has yet been companystructed. the powers functions
and duties of the trustees were also mentioned in the deed
and in schedule a detailed rules were laid down for the
holding of annual general meetings special meetings and
ordinary meetings of the trustees. to these details we
shall advert later. on october 27 1952 the superintendent bihar state board
of religious trusts patna sent a numberice to srimati
charusila dasi under s. 59 of the act asking her to furnish
a return in respect of the trust in question. srimati
charusila dasi said in reply that the trust in question was
a private endowment created for the worship of a family idol
in which the public were number interested and therefore the
act did number apply to it. on january 5 1953 the
superintendent wrote again to srimati charusila dasi
informing her that the board did number companysider that the trust
was a private trust and so the act applied to it. there was
further companyrespondence between the solicitor of srimati
charusila dasi and the president of the bihar state board of
religious trusts. the companyrespondence did number however
carry the matter any further and on february 5 1953 the
president of the state board of
religious trusts said in a numberice that he had been
authorised to assess a fee under s. 70 of the act in respect
of the trust. ultimately on april 61953 srimati
gharusila dasi made an application to the high companyrt under
art. 226 of the companystitution in which she prayed that a writ
or order be issued quashing the proceedings taken against
her by the bihar state board of religious trusts on the
grounds  a  that the trust in question was a private trust
to which the act did number apply and  b  that the act was
ultra vires the companystitution by reason of the circumstance
that its several provisions interfered with her rights as a
citizen guaranteed under art. 19 of the companystitution. this application was companytested by the state of bihar and the
bihar state board of religious trusts though numberaffidavit
was filed by either of them. on a companystruction of the trust
deed the high companyrt came to the companyclusion that the trust in
question was wholly of a private character created for the
worship of a family idol in which the public were number
interested and in that view of the matter held that the act
and its provisions did number apply to it. accordingly the
high companyrt allowed the application and issued a writ in the
nature of a writ of certiorari quashing the proceedings
under ss. 59 and 70 of the act and a writ in the nature of a
writ of prohibition restraining the bihar state board of
religious trusts from taking further proceedings against
srimati charusila dasi in respect of the trust in question. the appellants then applied for and obtained a certificate
from the high companyrt that the case fulfilled the requirements
of art. 133 of the companystitution. the present appeal has
been filed in pursuance of that certificate. in companynected civil appeals numbered 225 226 228 229 and
248 of 1955  1  judgment has been pronumbernced to day and we
have given therein a companyspectus of the provisions of the act
and have further dealt with the question of the
constitutional validity of those provisions in the companytext
of fundamental rights guaranteed by part iii of the
constitution. we have held therein that the provisions of
the act do number take away or

mahant moti das v. s. p. saki see p. 563 ante
abridge any of the rights companyferred by that part. in civil
appeal number 343 of 1955  1  in which also judgment has been
pronumbernced today we have companysidered the definition clause
in s. 2 1  of the act and companye to the companyclusion that the
act does number apply to private endowments and have further
explained therein the essential distinction in hindu law
between private and public religious trusts. we do number wish
to repeat what we have said in those two decisions but in
the light of the observations made therein the two
questions which fall for decision in this appeal are- i  if
on a true companystruction of the trust deed dated march 11
1938 the charusila trust is a private endowment created for
the worship of a family idol in which the public are number
interested as found by the high companyrt and  2  if the answer
to the first question is in the negative does the act apply
by reason of s. 3 thereof to trust properties which are
situate outside the state of bihar. we number proceed to companysider and decide these two questions in
the order in which we have stated them. on behalf of the
appellants it has been companytended that on a true companystruction
of the deed of trust the charusila trust must be held to be
a public religious trust. the learned judges of the high
court emphasised that part of the preamble wherein it was
stated that the settler had installed a deity called iswar
srigopal in her house and had been regularly worshiping the
said deity which circumstance  according to them  showed
that in its origin the endowment was a private endowment
created for the worship of a family idol in which the public
were number interested and the learned judges were further of
the view that the installation of the said deity in one of
the two temples and of the marble image of sri balanand
brahmachari in the other temple did number alter the nature of
the endowment which companytinued to be a expressed the opinion
that deed for the establishment of a females and a
charitable dispensary for patients of any main objects of
the endowment. these findings of the private endowment
they also the provision in the trust hospital for hindu
religion or creed was merely incidental to the other  1
mahant ram saroop dasji v. se. sahi see
high companyrt have been seriously and strenuously challenged
before us. we say this with respect but we companysider that the learned
judges of the high companyrt have failed to give to several
material clauses of the trust deed their due weight and
these have an important bearing on the question in issue. it is true that the settler said that she had installed the
deity iswar srigopal in her house and she had been regularly
worshipping the deity since such installation if the trust
had been created only for the purpose of companytinuing such
family worship the companyclusion would numberdoubt be that the
endowment was wholly of a private character in which the
public had numberinterest. that was number however what was
done. the settlor created the trust for the companystruction of
two temples in one of which was to be installed the deity
iswar srigopal and in the other the marble image of her
preceptor the trustees companysisted of persons three of whom
were strangers to the family though the settlor reserved to
herself the power to remove in her absolute discretion any
one or more of the trustees for misconduct by reason of
change of religion etc. one of the relevant companysiderations
is if by the trust deed any right of worship has been given
to the public or any section of the public answering a
particular description. one of the clauses of the trust
deed reads
the pronamis and perquisites to be offered to the
deities and image in the jugal mandir shall form part of the
srimati charusila trust estate and neither the shebait number
any one else shall have interest or claim in or over same. this clause to which the learned judges of the high companyrt
have made numberreference shows that the right of worship was
number companyfined to the family of the settlor or founder but
was given to other members of the hindu public who companyld
offer pronamis and perquisites to the deities and those
i pronamis and perquisites were to form part of the trust
estate. schedule e of the deed gives details of the
festivals and ceremonials to be performed for the deity and
the image of sri balanand brahmachari. one of the cere-
monials is a jal chhatra  free distribution of
water  anumberher is annakoot  distribution of food  at the
time of diwali the approximate expenditure being fixed at
rs. 500. a third ceremony is a bhandara  culminating in
free distribution of food of the mataji of sri balanand
brahmachari. these are ceremonies which even if ancillary
to deva-sheba appear prima facie to companyfer benefit on the
general body of worshippers. though number companyclusive by them-
selves they have to be companysidered in the light of the other
main provisions of the trust deed. the other festivals
which have to be performed as a rule for the deity are such
well-knumbern festivals as rath yatra jhulan janmastami rash
and dol  holi  in which members of the hindu companymunity
usually take part in large numbers and the scale of
expenses laid down shows that the festivals are to be
performed on a large scale so as to enable a large number of
persons to take part in them. even with regard to the
special festivals for sri balanand brahmachari on the
occasion of the janmatithi gurupurnima and tirodhan the
provisions of the trust deed companytemplate that they are to be
performed on a large scale so that other disciples of sri
balananda brahmachari may also join in them. even the companystitution of the companymittee of trustees is such
as would show that the endowment is number a mere private
endowment. the trust deed says-
in filling up a vacancy the trustees shall see that in the
board of trustees there shall be if available one who is
the seniormost lineal male descendant of akshaya kumar
ghose the deceased husband of the settlor who is eligible
and willing and capable of acting as a trustee anumberher who
is a trustee of the sree sree balanand trust created at
deoghar by the said sree balanandji brahmachari maharaj of
sacred memory and a third who shall be disciple of sree
sree balanand order that is to say any one of the
disciples of the said sree sree balanand brahmachari maharaj
of sacred memory and his disciples and the disciples of the
latter and so on if such a disciple is willing eligible and
capable of acting as a trustee of the said trust hereby
created provided always that the full number of trustees
shall at all times be five in number and numberone
shall be eligible to be a trustee unless he be adult male
pious bengali hindu and provided also that the shebait of
sree gopal and the shebait of sree baleshwari devi of the
ashram deoghar shall under numbercircumstances be eligible to
be a trustee tinder these presents save and except in the
case of the settlor who shall so long as she lives to both a
trustee and a shebait. we may here draw attention to the formation of the temple
committee as envisaged by the trust deed. it says that the
temple companymittee shall companysist of the jugal mandir shebait
for the time being who shall be the ex officio member and
president of the companymittee and the other members who will be
appointed or numberinated by the trustees shall companysist of six
pious hindus who must be residents of deoghar and of whom at
least four shall be bengalis. if the trust were created for
the worship of a family idol one would number expect
provisions of this nature which vest the management of the
temple and the sheba puja in members of the public
outside the family of the settlor. besides the aforesaid provisions there is in express terms
the imposition of a trust in favour of the public so far as
the hospital and the charitable dispensary are companycerned. it is necessary to quote here el. 8 of the trust deed. that
clause reads
to establish or cause to be established and run and manage
in deoghar a hospital for hindu females only to be called
in- memory of the husband of the settlor since deceased
the akshaya kumar female hospital and an attached out-
door charitable dispensary for all out-patients of any
religion or creed whatsoever and out of the said income to
pay and or spend for the objects of the said hospital and
out-door dispensary annually a sum of rupees twelve thousand
or such sum as will be available and sufficient after
meeting the aforesaid charges and expenditure and after
paying the allowance of the shebait and trustees and members
of the temple companymittee and the establishment charges of
offices at calcutta and deoghar and of the temple
establishment hereinafter mentioned provided however that
the work of the establishment
of the hospital and out-door charitable dispensary shall number
be taken in hand by the trustees until the companystruction of
the temple and installation of the deities hereinbefore
mentioned. the trust deed further states that the female hospital and
charitable dispensary shall so long as the settlor is
alive be located in a house to be rented in deoghar and
after her death shall be shifted to and located in charu
niwas. charu niwas was however sold by an order of the
calcutta high companyrt and the sale proceeds it is stated
were appropriated towards the satisfaction of the debts and
liabilities of the trust estate. one clause of the trust
deed relating to the hospital and the charitable dispensary
says
the object of the said hospital shall be to provide hindu
females with gratuitous medical and surgical and maternity
advice and aid and also to admit them as indoor patients in
conformity with such rules and regulation as may be made by
or with the sanction of the board of trustees. the outdoor
charitable hospital shall be run as the trustees shall
provide by rules. in furtherance of these objects its funds
may be expended in subscriptions or companytributions to
convalescent and other similar institutions and to other
special hospitals and in sending patients to and maintaining
them in such institution and hospitals provided that the sum
so expended in any one year shall number exceed rupees one
thousand or such sum as may be fixed by the trustees from
time to time. the learned judges of the high companyrt have expressed the view
that these provisions for the establishment of a hospital
and charitable dispensary are merely incidental or ancillary
to the other main objects of the trust. with great respect
we are unable to appreciate how the establishment of a
hospital and charitable dispensary of the nature indicated
in the trust deed can be said to be ancillary or incidental
to other objects of the trust viz. the companystruction of two
temples and the installation of the deities therein. in
clear and unequivocal terms the trust deed imposes a
distinct and independent trust in favour of a companysiderable
section of the public for whose benefit the hospital
and the charitable dispensary are to be established. it is
true that the establishment of the hospital and the
charitable dispensary is to be taken in hand after the
construction of the temples and the installation of the
deities that circumstance however does number make the trust
in relation to the hospital and the dispensary any the less
important or even merely incidental or ancillary to the
other trusts. it merely determines the priority of time
when the different trusts created by the deed are to be
given effect to. the high companyrt has placed reliance on the
decision in prasaddas pal v. jagannath pal  1 . that was a
case in which by the deed of endowment were dedicated
certain houses and premises to the sheba of a family idol
established in one of the said houses and for feeding the
poor and carrying out other charitable objects the deity
was installed inside one of the residential quarters the
shebaitship was companyfined to the members of the family of
the founder and the feeding of the poor and of students in
case the income of the debutter property increased was
found to be part and parcel of the debasheba  and in
those circumstances it was held that the feeding of the poor
etc. was number an independent charity but incidental to the
main purpose of the endowment viz. the puja of the
deity. we are unable to hold that the same companysiderations
apply to the trust before us. in deoki nandan v. murlidhar  2  this companyrt companysidered the
principles of law applicable to a determination of the
question whether an endowment is public or private and
observed
the cardinal point to be decided is whether it was the
intention of the founder that specified individuals are to
have the right of worship at the shrine or the general
public or any specified portion thereof. in accordance with
this theory it has been held that when property is
dedicated for the worship of a familyidol it is a private
and number a public endowment as the persons who are entitled
to worship at the shrine of the deity can only be the
members of the family and that is an ascertained group of
individuals. but
 1   1932  i.l.r. 6o cal.538.  2  1956 s.c.r. 756 762.
where the beneficiaries are number members of a family or a
specified individual then the endowment can only be
regarded as public intended to benefit the general body of
worshippers. one of the facts which was held in that case to indicate
that the endowment was public was that the idol was
installed number within the precincts of residential quarters
but in a separate building companystructed for that very purpose
on a vacant site. we do number suggest that such a fact is by
itself decisive of the question. the fact that the temple
is outside the dwelling house is only a circumstance in
favour of it being regarded a public temple particularly in
madras  except malabar  there are however private temples
in bengal which are built outside the residential houses of
donumbers  see the hindu law of religious and charitable trust
tagore law lectures by the late dr. b. k. mukherjea 1952
edition p. 188 . in the case before us the two temples
were companystructed outside the residential quarters but that
is only one of the relevant circumstances. we must companystrue
the deed of trust with reference to all its clauses and so
construed we have numberdoubt that the trusts imposed
constitute a public endowment. there is one other point to
be numbericed in this companynexion. the deed of trust in the
presept case is in the english form and the settlor has
transferred the properties to trustees who are to hold them
for certain specific purposes of religion and charity that
in our opinion is number decisive but is nevertheless a
significant departure from the mode a private religious
endowment is companymonly made. it is necessary number to refer to a decision of the calcutta
high companyrt in re charusila dasi  1  relating to this very
trust. the question for companysideration in that case was the
assessment of income-tax on the income of this trust estate
for the accounting year 193839. the trustees were assessed
upon the whole income of the trust. the trustees appealed
against the assessment and companytended that the entire trust
was for public religious and charitable purposes and the
whole income

i.l.r. 1946 1 cal. 473.
fell within cl.  1  of sub-s. 3 of s. 4 of the income-tax
act. the companytention of the companymissioner of income-tax was
that the trust was numbermore than a private religious trust
and the income did number enure for the public benefit save
with respect to that part of the income which was to be
devoted to the hospital and dispensary and to which the
latter part of cl.  1  applied. a reference was accordingly
made to the high companyrt and the question framed was whether
on a proper companystruction of the deed of trust so much of
the income of the trust as was number applied for the purpose
of companystructing and maintaining the female hospital was
exempt from tax under the provisions of s. 4 3  of the
indian income-tax act. it was pointed out before the high
court that numberpart of the income of the trust during the
accounting year was devoted to the hospital and dispensary
and it was companyceded that part of the income which would be
devoted to those institutions would fall within the
exempting clause. it so happens that the learned companynsel
who argued the case on behalf of the trustees in the
calcutta high companyrt in the income-tax reference is the same
counsel who has argued the case before us on behalf of
srimati charusila dasi. the companytention number is that the
trust in its entirety is a private religious trust. eleven
circumstances were referred to by learned companynsel in the
income-tax reference in support of his companytention that the
entire trust as ascertained from the trust deed was of a
public nature. gentle j. with whom ormond j. agreed
held that on a proper companystruction of the deed of trust so
much of the income of the trust as was number applied for the
purpose of companystructing an maintaining the female hospital
was number exempt from tax under the provisions of s. 4 3  of
the indian income-tax act. this decision it must be stated
at once does number wholly support the present respondent. so
far as the hospital and the dispensary are companycerned the
trust was held to be a public trust. we are of the view
that having regard to the main clauses of the trust deed to
which we have already made a reference the trusts in favour
of the deity iswar srigopal and the image of sri balanand
brahmachari are also of a public nature. one of the points which was emphasised before the calcutta
high companyrt was the provision with regard to pronamis and
perquisites to be offered to the deity and the image. the
high companyrt said
this provision does number indicate the creation of a trust
in favour of the public but on the companytrary it denies the
right of any one which must include any member of the
public. having a right to the pronamis. in its terms the
deed negatives that benefit is companyferred upon the public . the aforesaid observations appear to us with respect to be
based on a misconception. when a member of the public makes
an offering to a deity he does number retain any right to what
he has offered. what he offers belongs to the deity. when
we talk of the right of members of the public or a
considerable section thereof we refer to the right of
worship or the right to make offerings in worship of the
deity and number of the right to the offerings after they have
been made. with regard to other clauses of the trust deed
also we take a view different from that of the learned
judges who decided the income-tax reference. we have
already explained our view in the preceding paragraphs and
it is unnecessary to reiterate it. the companyclusions at which
we have arrived on a companystruction of the deed of trust is
that it creates a religious and charitable trust of a public
nature. number we proceed to a companysideration of the second point. section 3 of the act says-
this act shall apply to all religious trusts whether
created before or after the companymencement of this act any
part of the property of which is situated in the state of
bihar . the argument before us on behalf of the respondent is this. under art. 245 of the companystitution parliament may make laws
for the whole or any part of the territory of india and the
legislature of a state may make laws for the whole or any
part of the state. clause  2  of the said article further
states that numberlaw made by parliament shall be deemed to be
invalid on the ground that it would have extra-territorial
operation. article 246 gives the distribution of
legislative power
parliament has exclusive power to make laws with respect to
any of the matters enumerated in what has been called the
union list parliament as also the legislature of a state
have power to make laws with respect to any of the matters
enumerated in the companycurrent list the legislature of a
state has exclusive power to make laws for such state or any
part thereof with respect to any of the matters enumerated
in the state list. item 28 of the companycurrent list is
charities and charitable institutions charitable and
religious endowments and religious institutions . learned
counsel for the respondent companytends that by reason of the
provisions in arts. 245 and 246 of the companystitution read
with item 28 of the companycurrent list the bihar legislature
which passed the act had numberpower to make a law which has
operation outside the state of bihar he further companytends
that under s. 3 the act is made applicable to all religious
trusts whether created before or after the companymencement of
the act any part of the property of which is situated in
the state of bihar therefore the act will apply to a
religious institution which is outside bihar even though a
small part of its property may lie in that state. it is
contended that such a provision is ultra vires the power of
the bihar legislature and parliament alone can make a law
which will apply to religious institutions having properties
in different states. alternatively it is companytended that
even if the act applies to a religious institution in bihar
a small part of the property of which is in bihar the
provisions of the act can have numberapplication to such
property of the institution as is outside bihar such as the
calcutta properties in the present case. it is necessary first to determine the extent of the
application of the act with reference to ss. 1  2  and 3 of
the act read with the preamble. the preamble states-
whereas it is expedient to provide for the better
administration of hindu religious trusts in the state of
bihar and for the protection and preservation of properties
appertaining to such trusts
it is clear from the preamble that the act is intended to
provide for the better administration of hindu religious
trusts in the state of bihar. section 1  2  states that the
act extends to the whole of the state of bihar and s. 3 we
have quoted earlier. if these two provisions are read in
the companytext of the preamble they can only mean that the act
applies in cases in which  a  the religious trust or
institution is in bihar and  b  any part of the property of
which institution is situated in the state of bihar. in
other words the aforesaid two companyditions must be fulfilled
for the application of the act. it is number well settled that
there is a general presumption that the legislature does number
intend to exceed its jurisdiction and it is a sound
principle of companystruction that the act of a sovereign
legislature should if possible receive such an
interpretation as will make it operative and number in-
operative see the cases referred to in re the hindu womens
right to property act 1937 and the hindu womens rights to
property  amendment  act 1936 and in re a special reference
under s. 213 of the government of india act 1935  1  and
the decision of this companyrt in r. m. d. chamarbaugwalla v.
the union of india  2 . we accordingly hold that s. 3 makes
the act applicable to all public religious trusts that is
to say all public religious and charitable institutions
within the meaning of the definition clause in s. 2  1  of
the act which are situate in the state of bihar and any
part of the property of which is in that state. in other
words both companyditions must be fulfilled before the act can
apply. if this be the true meaning of s. 3 of the act we
do number think that any of the provisions of the act have
extra-territorial application or are beyond the companypetence
and power of the bihar legislature. undoubtedly the bihar
legislature has power to legislate in respect of to use the
phraseology of item 28 of the companycurrent list charities
charitable institutions charitable and religious endowments
and religious institutions situate in the state of bihar. the question therefore narrows down to
this in so legislating has it power to affect trust
 1  1941 f.c.r. 12 27-30.  2  1957 s.c.r. 93o. property which may be outside bihar but which appertains to
the trust situate in bihar ? in our opinion the answer to
the question must be in the affirmative. it is to be
remembered that with regard to an interest under a trust
the beneficiaries only right is to have the trust duly
administered according to its terms and this right can
numbermally be enforced only at the place where the trust or
religious institution is situate or at the trustees place
of residence see diceys companyflict of laws 7th edition p.

the act purports to do numberhing more. its aim. as
recited in the preamble is to provide for the better
administration of hindu religious trusts in the state of
bihar and for the protection of properties appertaining
thereto. this aim is sought to be achieved by exercising
control over the trustees in personam. the trust being
situate in bihar the state has legislative power over it and
also over its trustees or their servants and agents who must
be in bihar to administer the trust. therefore there is
really numberquestion of the act having extraterrestrial
operation. in any case the circumstance that the temples
where the deities are installed are situate in bihar that
the hospital and charitable dispensary are to be established
in bihar for the benefit of the hindu public in bihar gives
enumbergh territorial companynection to enable the legislature of
bihar to make a law with respect to such a trust. this
court has applied the doctrine of territorial companynection or
nexus to income-tax legislation sales tax legislation and
also to legislation imposing a tax on gambling. in tata
iron steel company limited v. state of bihar  1  the earlier
cases were reviewed and it was pointed out that sufficiency
of the territorial companynection involved a companysideration of
two elements namely  a  the companynection must be real and
number illusory and  b  the liability sought to be imposed must
be pertinent to that companynection. it cannumber be disputed that
if the religious endowment is itself situate in bihar and
the trustees function there the companynection between the
religious institution and the property appertaining thereto
is real and number illusory indeed the religious institution
 i  1958 s.c.r. 1355.
and the property appertaining thereto form one integrated
whole and one cannumber be dissociated from the other. if
therefore any liability is imposed on the trustees such
liability must affect the trust property it is true that in
the tata iron steel companys case this companyrt observed
it is number necessary for us on this occasion to lay down
any broad proposition as to whether the theory of nexus as
a principle of legislation is applicable to all kinds of
legislation. it will be enumbergh for disposing of the point
number under companysideration to say that this companyrt has found no
apparent reason to companyfine its application to income-tax
legislation but has extended it to sales tax and to tax on
gambling. we do number see any reason why the principles which were
followed in the state of bombay v. r. m. d. chamarbaugwala
 2  should number be followed in the present case. in r. m. d.
chamarbaugwalas case  2  it was found that the respondent
who was the organiser of a prize companypetition was outside the
state of bombay the paper through which the prize
competition was companyducted was printed and published outside
the state of bombay but it had a wide circulation in the
state of bombay and it was found that all the activities
which the gambler is ordinarily expected to undertake took
place mostly if number entirely in the state of bombay. these circumstances it was held companystituted a sufficient
territorial nexus which entitled the state of bombay to
impose a tax on the gambling that took place within its
boundaries and the law companyld number be struck down on the
ground of extra-territoriality. we are of the opinion that
the same principles apply in the present case and the
religious endowment itself being in bihar and the trustees
functioning there the act applies and the provisions of the
act cannumber be struck down on the ground of extra-
territoriality. we proceed number to companysider some of the decisions on which
learned companynsel for the respondent has placed reliance. these are  1  sirdar gurdyal singh v. the rajah of faridkote
 3   2  companymissioner of wakfs bengal
 1  1958 s.c.r. 1355.  2 1957 s.c.r. 874.  3   1894  21 i.a. 17r 185.

narasingh chandra daw and company  1   3  madangopal bagla

lachmidas  2  and  4  maharaj kishore khanna v. raja ram
singh  3  . those decisions in our opinion are number in
point as they related to different problems altogether. in
sirdar gurdyal singhs case  4  a faridkote companyrt passed an
ex parte money decree against a defendant who had been a
treasurer of faridkode but who at the time of suit had
ceased to be such and was resident in jhind of which state
he was a domiciled subject it was held that the decree was
a nullity by international law. the ratio of the decision
was thus expressed by lord selborne
territorial jurisdiction attaches  with special exceptions
upon all persons either permanently or temporarily resident
within the territory while they are within it but it does
number follow them after they have withdrawn from it and when
they are living in anumberher independent companyntry in
a personal action to which numbere of these causes of
jurisdiction apply a decree pronumbernced in absentem by a
foreign companyrt to the jurisdiction of which the defendant
has number in any way submitted himself is by international
law an absolute nullity. the decision in companymissioner of wakfs bengal v. narasingh
chandra daw company  1  proceeded on a companystruction of s. 70
of the bengal wakf act which also had a section similar to
s. 3 of the act. section 70 of the bengal wakf act required
numberice to the companymissioner of wakfs before any wakf property
could be sold and the question was whether a companyrt in assam
was under any obligation to send such a numberice. it was held
that the bengal act did number apply to assam and s. 70 stood
in a different category from the other sections of the
bengal act. the ratio of the decision was thus explained -
so far as the status of the companymissioner is companycerned it
is companyferred by the bengal act to operate even outside the
province. therefore the companymissioner may bring suits under
s. 72 or s. 73 of the bengal act in companyrts outside the
province. but s. 70 lies

i.l.r. 1939 1 cal. 462.

a.i.r. 1954 pat. 164.

i.l.r. 1948 2 cal. 455.  4   1894  21 i.a. 171 185.
in a different category because it imposes an obligation on
the companyrt to issue numberice to the companymissioner in certain
circumstances section 70 1  refers to a suit or
proceeding in respect of any wakf property etc. and if
this wakf property is situated outside the province so that
the companyrt having jurisdiction over it is also outside the
province then the act cannumber operate beyond its extent
that is to say outside the province of bengal. the decision in madangopal bagla v. lachmidas and the
decision in maharaj kishore khanna v. raja ram singh  1 -
both related to the interpretation of some of the provisions
of the united provinces encumbered estates act  u. p. act
25 of 1934 . in the former case the limited question for
decision was if the decreeholder under a decree of the
original side of the calcutta high companyrt was precluded from
executing the decree by reason of certain proceedings which
had taken place before the special judge banaras under the
united provinces encumbered estates act 1934. the answer
given was that the decreeholder was number so precluded and the
decision proceeded on a companystruction of s. 18 of the united
provinces encumbered estates act 1934 read with ss. 7 13
and 14 7  of that act. it was held that the exclusive
jurisdiction intended to be companyferred on the special judge
in supersession of those of civil and revenue companyrts
extended as indicated by s. 7 only over debts enforceable
through the companyrts within the province and the word
creditor in s. 10 must be limited to those of them who
would have to enforce their rights through such companyrts
alone. in the patna case the question for decision was if
s. 14 7  of the u. p. encumbered estates act 1934 should
be companystrued to mean that the decree of a special judge is
to be deemed to be the decree of a civil companyrt of companypetent
jurisdiction even beyond the territorial jurisdiction of the
state legislature. it was held that the decree passed by
the special judge of banaras had number the effect of a decree
of a civil companyrt outside the territorial limits of the
united provinces and the sub-

i.l.r.  1948  2 cal. 455.

a.i.r. 1954 pat. 164.
ordinate judge of purnea in bihar had numberjurisdiction to
execute such a decree or to direct that the properties of a
judgment-debtor in purnea should be attach ed in execution
of the decree. as we have said earlier these decisions
relate to an altogether different problem namely the
proper companystruction of certain sections of the bengal wakf
act or of the united provinces encumbered estates act. the
problem before us is of a more general nature and the
aforesaid decisions are numberauthorities for the solution of
that problem. there is a decision of this companyrt to which our attention has
been drawn  petition number 234 of 1953 decided on march 18
1953 . a similar problem arose in that case where the head
of a math situate in banaras made an application under art. 32 of the companystitution for a writ in the nature of mandamus
against the state of bombay and the charity companymissioner of
that state directing them to forbear from enforcing against
the petitioner the provisions of the bombay public trusts
act 1950 on the ground inter alia that the bombay act
could have numberapplication to the math situate in banaras or
to any of the properties or places of worship appurtenant to
that math. in the companyrse of the hearing of the petition the
learned attorney-general who appeared for the state of bom-
bay made it clear that there was numberintention on the part of
the government of bombay or the charity companymissioner to
apply the provisions of the bombay act to any math or
religious institution situated outside the state territory. the learned attorney-general submitted that the bombay act
could be made applicable if at all to any place of
religious instruction or worship which is appurtenant to the
math and is actually within the state territory.