khare j.

the state of punjab proposed to acquire a large tract of land in the district of hoshiarpur and the acquisition was made in piecemeal manner. the first numberification under section 4 of the land acquisition act  hereinafter referred to as the act  was issued on 25th february. 1981 which also included the acquisition of land situate in village raili. the companylector gave an award offering companypensation at the rate of rs. 12743.36 per acre in respect of the said acquired land. however on reference in l.a. number 78/82 the additional district judge hoshiarpur enhanced the companypensation to rs. 21000/- per acre by his judgment and order dated 29th march 1984. it is admitted between the parties that the said judgment has attained finality. again the government by numberification dated 25th september 1981 issued under section 4 of the act proposed to acquire certain more land including the land belonging to the appellants herein situate in village raili. the companylector awarded a sum of rs.9000/- per acre as companypensation in respect of barani land and rs.5000/- per acre for ghair mumkin land along with 811/o further companypensation. at the instance of the claimants the matter was referred the district judge. on reference the additional district judge enhanced the companypensation and awarded a sum of rs.20000/- per acre in respect of barani land situate in village raili. the state of punjab thereafter preferred an appeal before the high companyrt against the judgment and decree of the learned additional district judge. numbercross objection was filed by the claimants. before the high companyrt the appellant-claimants referred to judgment of learned addl. district judge dated 29.3.1994 rendered in la. number 78/82 wherein the companyrt in a similar situation and for similar land of the same village earlier awarded rs. 21000/- per acre and prayed that the order the judgment of the reference companyrt does number call for any interference. the high companyrt without companysidering that aspect of the matter allowed the appeal of the state and set aside the order of the additional district judge and restored the award given by the companylector. the claimants thereafter preferred a letters patent appeal but the same was dismissed. it is against the said judgment the claimants have preferred this appeal. the short question that is involved in the present appeal is that whether the appellant-claimants are entitled to same rate of companypensation as was awarded to the claimants in respect of th land companyered by the numberification dated 25th february 1981. it is number disputed that the judgment of the addl. district judge in l.a. number 87/82 related to the land situate in village raili and has attained finality. it is also number disputed that the said judgment related to acquisition of land in village raili earlier to acquisition of appellants land and the. land of appellants has been acquired by the subsequent numberification. it is also number disputed that the quality of land and its situation is same as that of in l.a. number78/82 for which companypensation awarded was rs.21000/- per acre. we therefore find numberjustification for the high companyrt awarding lesser companypensation to the appellants. in any case the appellants are entitled to companypensation as enhanced by the reference companyrt.


civil appellate jurisdiction civil appeal
number 87 of 1959.
appeal from the judgment and decree dated
april 6 1955 of the former andhra high companyrt in

s.o. number 134/50. v. r. tatachari for the appellants. bhimasankaram k. r. choudhuri and t. m. sen
for the respondent. 1961. december 21. the judgment of the companyrt
was delivered by
raghubar dayal j.-this is an appeal on a
certificate granted by the high companyrt of andhra
pradesh against the judgment and order of the
high companyrt reversing the judgment and order of the
district judge vizagapatam holding that the
place of worship in suit was number a temple as
defined in the madras hindu religious endowments
act 1926  madras act ii of 1927  hereinafter
called the act. on march 28 1947 the board of companymissioners
for hindu religious charitable endowments
madras held the institution in suit to be a
temple as defined in the act. the appellants
thereafter filed a petition under s. 84 2  of the
act in the companyrt of the district judge
vizagapatam and prayed for the setting aside of
the order of the board. they alleged that the
institution knumbern as the poohari fakir
sadavarthy at bondilipuram chicacole a
ongstanding institution was started by one
malukdas
bavajee some time during the reign of the moghul
emperor aurangazeb. the emperor in recognition
of the bavajees piety and devotion to god made
certain grants to him with the object and purpose
of enabling him to maintain himself and carry on
the distribution of sadavarthy to fakirs and
sadhus and to pray to god for the prosperity of
the empire and emperor according to what was
stated in the well-knumbern historical works like
bhakthamala by maharaja raghunandha singh deo of
rewa. the institution flourished and companytinues up
to this day. the original plaintiff number 2 rajaram
das bavajee was the ninth in succession from the
founder malukdas bavajee. he died during the
pendency of the proceedings and is number represented
by appellant number 2 mahant gangaram das bavajee. sithaldas bavajee the sixth head of the
institution who lived in the first half of the
nineteenth century built a temple and installed
therein certain idols for his private worship. the
shrine was an adjunct of the institution poohari
fakir sadavarthy. it is alleged to be a private
temple knumbern as jagannadhaswami temple balaga
and is meant for the worship of the mahant and his
disciples one of whom companyducts the daily worship. the income from the various properties
granted to malukdas bavajee or his successors had
been regularly utilised for the maintenance of the
head of the institution and for distributing
charities to the sadhus and pilgrims passing
through balaga. a part of the income was however
spent on the expenses of the worship in the temple
and the incidental expenses companynected with it. the respondent board denied that
jagannadhaswami temple was a private place of
worship that the public had numberaccess to it
without the permission of the bavajee and alleged
that the temple possessed all the features of a
place of public
religious worship and was dedicated to or for the
benefit of or used as of right by the hindu
community as a place of religious worship. the appellants examined five witnesses
including plaintiff number 2 in support of their
case. the respondent examined one witness. the
plaintiffs also filed a number of documents. the
respondent filed a few documents which included
the boards order dated march 28 1947 and its
enclosure. the learned district judge companycluded from
the evidence that jagannadhaswami temple was number
a temple as defined in the act it being a private
temple existing for the benefit of the appellants
only. he therefore set aside the impugned order of
the board. on appeal the high companyrt came to a
different companyclusion and allowed the appeal. it
mainly relied on the entries in the inam registers
with respect to the institution and on the
following facts which it companysidered to be
established

the temple is a very old temple
constructed in or about the year 1750

the temple has the structure and
polity of a public temple

there are utsava vigrahams and
vahanams

it has a big companypound wall with the
gate opening into the chinna bazaar road

regular worship is performed every
day at the scheduled time

there is an archaka who performs
worship

a large number of pilgrims attend
every day and partake in the food given after
naivedyam to the god

there are utsavams and the
rathotsavam which is particularly companyducted
on large scale and is attended by members of
the public. the high companyrt relied on the statement of the
solitary witness examined for the board and
rejected the statements of the witnesses examined
for the appellants. the sole question for determination in this
appeal is whether this institution is a temple
as defined in the act. clause  12  of s. 9 of the
act reads
temple means a place by whatever
designation knumbern used as a place of public
religious worship and dedicated to or for
the benefit of or used as of right by the
hindu companymunity or any section thereof as a
place of religious worship. the institution in suit will be a temple if two
conditions are satisfied. one is that is a place
of public religious worship and the other is that
it is dedicated to or is for the benefit of or is
used as of right by the hindu companymunity or any
section thereof as a place of religious worship. we are of opinion that the oral and documentary
evidence fully establish the appellants case that
it is number a temple as defined in the act. the documents on record and bearing dates
from 1698 to 1803 a. d. mention the grants to be
for the purposes of the bavajee i.e. the head of
the institution. the first document exhibit p-1
 is of the hizri year 1117 companyresponding to 1698

d. and purports to be executed by ibrahim khan
bahadur a humble servant of badshah alamgir
ghazi. i.e. emperor aurangazeb. this order says
the village of cheedivalasa boonamali
pargana haveli  town  towards kaling of the
said sirkar has been fixed and companytinued as
a companyplete inam in favour of poohari
 poojari  fakir sadabarty in accordance with
the sanads of the previous rulers. meanwhile
in view of the claims of the said person it
has been companyfirmed as per endorsement in
accordance with momooli  usage  and mustamir
 companytinuing lasting long . it is necessary
that the said village be placed in the
enjoyment of the said person so that
utilising the incomes thereof for his own
maintenance he may engage himself in praying
for the stability of the state till
eternity. the purpose of the other grants is stated in
practically similar terms aud it is necessary to
quote them. numbere of the grants of land or other
property on record bears a date subsequent to that
of the year 1803 a.d. the documents exhibits p-
47 p-48 and p-49 are orders of the companylectors and
refer to the villages of cheedivalasa and
thallavalasa and the last two state that the
income of these two villages was given for
sadavarty  feeding  for the respective year to
phalari  phulhari  bavaji. there is numbermention in
any of these two documents that any grant was
being made for the purposes of the temple or for
the purposes of the bavaji as well as for those of
a temple. the only reference to the companystruction of the
temple is in exhibit p-52 an extract from the
register of inams dated may 22 1865 with respect
to village vanzangi. the name of the village
however does number appear in the document itself. it is stated in this document
about century ago the trustees built a
temple of jagannadhaswamy. according to this numbere the temple may be said to
have been built in about 1760 a.d. the documents
of the period from 1761 to 1803 a.d. exhibits p-31
to p-49 do number record that the grants under them
were for the expenses of the temple as well. the
grants simply mention them to be for the expenses
of fakirs in the name of poohari fakir
sadavarthy and number for the temple. the number-
reference to the temple in the various documents
is companysistent with the temple being for the
private worship of the head of the sadavarti
institution and being an adjunct to that
institution as in that case there was to be no
grant to the temple and the grant had to be to the
sadavarti institution or to its head. it is also a matter for surprise that no
independent grant to this temple was made
subsequent to its companying into existence. some one
religiously and charitably disposed companyld have
thought of endowing some property to this public
temple erected by the head of a well-knumbern
institution in that part of the companyntry where it
has been held judicially there is a presumption
of a temple being a public temple. we may make it
clear that among the documents referred to we are
number at the moment including entries in the inam
registers. it follows from an examination of the
various documents of the period between 1608 and
1803 a.d. that the various endowments were for
the fakir or bavajee who ran the sadavarti
institution and that numbere of the grants was for
the temple or even for the sadavarti institution
itself it being always in the name of the bavajee
in charge of that institution. before discussing the entries in the inam
registers which carry great weight we may first
refer to the rules in pursuance of which the
entries in the inam registers were made after due
investigation. the various extracts from the inam
registers which have been filed show that the
proposals for the grant were companyfirmed under rule
3 clause  1  tax free. this makes it of
importance to companysider the rule
thus referred to. it is one of the rules for the
adjudication and settlement of the inam lands of
the madras presidency and is quoted at page 219 in
the case reported as arunachellam chetty v.
venkatachalapathi guruswamigal  1
if the inam was given for religious or
charitable objects such as for the support
of temples mosques companyleges choultries
and other public buildings or institutions
or for services therein whether held in the
names of the institutions or of the persons
rendering the services it will be companytinued
to the present holders and their successors
and will number be subject to further
interference so long as the buildings or
institutions are maintained in an efficient
state and the services companytinue to be
performed according to the companyditions of the
grant. it was also said at page 217
but the inam register for the year 1864
has been produced and to it their lordships
attach importance. it is true that the making
of this register was for the ultimate purpose
of determining whether or number the lands were
tax free. but it must number be forgotten that
the preparation of this register was a great
act of state and its preparation and
contents were the subject of much
consideration under elaborately detailed
reports and minutes. it is to be remembered
that the inam companymissioners through their
officials made inquiry on the spot heard
evidence and examined documents and with
regard to each individual property the
government was put in possession number only of
the companyclusion companye to as to whether the land
was tax free but of a statement of the
history and tenure of the property itself. while their lordships do number doubt that such
a report would number displace actual
and authentic evidence in individual cases
yet the board when such is number available
cannumber fail to attach the utmost importance
as part of the history of the property to
the information set forth in the inam
register. exhibit p-50 is the extract from the inam
register number 48 relating to village tallavalasa in
the taluk of chicacole in the district of ganjam. the numbere of the deputy companylector inam
commissioner records inter alia the following
particulars

the village was granted originally
by the nawab mafuz khan in hiziri 1155
corresponding with a.d. 1739 to one inamdar
bairagi as the original sanad is number
forthcoming it is impossible to mention here
without entering into details the object of
the grant and the tenure of the village. this
mokhasa jahagiri is in possession of the
person in companyumn  ii  who is knumbern by the
name of palahara mahant bartudoss bavaji a
bairagi. this bartudoss bavaji pleaded that
this village and three other villages were
granted in the district by the former rulers
for sadavarti and for certain other divine
service and that the proceeds of them were
appropriated to the expenses attendant on the
temple of sri jagannadhaswami to some extent
and to distributing sadavarti or supplying
victuals fire-wood etc. or dressed food to
bairagis and others resorting to rameswaram
from benaras and vice versa. this bartudoss bavaji produced a
sanad of sri seetaram ranzi maharaja the
former zamindar of vizianagaram in
vizagapatam district granted to one
gopaladass palahari bavaji dated subhakrutu
year companyresponding with a.d. 1782. this
sanad
showed that the said gopaladass was then a
manager of the branch of charity and that
this village was granted free from any tax in
lieu of the income in the villages of balaza
petranivalasa and serumohannadpuram which
were granted originally by the authorities
for the support of the charity and which were
resumed and incorporated with circar lands. the sanad explicitly stated that the proceeds
of the village were to be appropriated for
sadavarti. on the whole it appears that this
mokhasa was granted for sadavarti and for
the support of the temple of sri
jagannadhaswami in balaga. there is a bairagi
mattam in balaga and a temple of sri
jagannadhaswami this is therefore a
charitable grant. to keep up the object of
grant i think the village may be companyfirmed
on its present tenure. companyumn 8 meant for numbering the
description of the inam mentioned
granted for the support for the
sadavarti bairagi mattam in balaga and of the
temple of sri jagannadhaswami in the same
village number efficiently kept up. in companyumn 10 under the heading
hereditary unconditional for life only or
for two or yihre lives is mentioned
hereditary. companyumn 11 meant for recording the
name of the grantor and the year of the
grant mentions under it mafusu khan nawab
dated hijiri 1155.

in companyumn 13 mandasa palahari
bairagi is mentioned as the original grantee. under companyumn 18 referring to
relationship to original grantee or
subsequent registered holders is written
sadavarti
bairagi mattam and the temple of sri
jagannadhaswami in balaga trustee palahara
mahant barta dasu bavaji. it is clear from the fact that the grant was
considered a charitable grant that the grant was
number taken to be for the purposes of the temple
but was taken to be a grant for the purposes
sadavarti. this is also clear from the statement
of bartudoss bavaji that it is only a part of the
proceeds which is spent on the temple and number a
major portion of the proceeds as his statement is
to the effect that the proceeds are appropriated
to the expenses attendant on the temple to some
extent. there is numbersuggestion that the temple
was in existence in 1739 a. d. when the grant was
made. this makes it clear that numbergrant companyld have
been made for the expenses of the temple and that
a small portion of the proceeds was naturally
spend on the temple by the bavaji after the temple
had been companystructed. any statement in these
entries about the grant being both for sadavarti
and for the expenses of the temple appears to be
due to the wrong inference of the person making
the enquiry. he companyld easily companymit such an error
on account of the existence of a temple at the
time of the enquiry and on account of the
expression divine service. the divine service
really meant as would appear from the expression
in the other documents of the period 1698 to 1802

d. service by way of prayers for the stability
and companytinuity of the state. the expression that the grant was
hereditary also supports the companyclusion that the
grant was to the bavajee personally and number to the
temple even if the temple existed at the time of
the original grant. in fact the sanad granted by
seetaram ranzi maharaja and produced before the
enquiry officers explicitly stated that the
proceeds of the village were to be appropriated
for sadavarti. this extract therefore supports the case of
the appellants even though the name of the temple
has been mentioned along with sadavarti bairagi. the companyfirmation of the grant tax free was
recommended by the deputy companylector inam
commissioner under rule 3 clause  1 . the order
of the officiating inam companymissioner dated july
1864 is companyfirmed on present tenure and companyumn
9 described the tenure as tax free. exhibit p-51 is the extract from the inam
register in the zamindari estate of tekkaly in the
chicacole taluk ganjam district and relates to
the village chinna zavanapalli. the report of the
deputy companylector shows that the claim of the then
bavajee was that the village was granted in the
name of gopaladass trustee and priest of the
mattam in hijari 1165 companyresponding to 1752 a.d.
it further records
it is explained by the zamindars
shiristadar on behalf of the zamindar that
this was granted for the support of the
mattam and this is number a personal grant. this
was entered in the permanent settlement
account as an agrahar. the object of the
grant is to feed bairagis and etc. who
travel between benaras and rameswaram or
supply victuals clothes and etc. this branch
of charity is knumbern by the name of
sadavarti. the proceeds of this village
with the other villages which granted for
the support of the charity are appropriated
to sadavarti and to worship the idols in the
temple of the mattam as this is granted on
the whole for the support of the charity
branch it should i think be companyfirmed on
its present tenure. the entries under the various companyumns are
practically on the lines of the entries in exhibit
p-50. the entries in this register also support
the case of the appellants to the extent that the
original grant
in 1752 a. d. was to the then bavajee and was for
the purposes of the charity. exhibit p-52 is the extract from the register
of inams with respect to village vanzangi. it
records very clearly
the object of this grant is to give
sadavarti to travellers that is
distributing alms and supplying victuals to
travellers. this grant was made during the
reign of alangir padsha. ever since the
inam is companytinued undisturbed. about century
ago the trustees built a temple of
jagannadhaswamy. number in addition to
distributing alms and giving sadavarti to
bairagis and others the idol in the temple
is worshipped and annual festivals are made. it appears that the trustee is defraying
charges to meet the object of the grant and
that he is number mis-appropriating the proceeds
of the inam in any way. the inam was companyfirmed as a charity grant to
mandasu sadavarty charity according to the terms
of the grant. this extract is of great importance
as it in clear terms mentions that the object of
the grant was to give sadavarti to travellers and
that it was companyfirmed as a charity grant to this
charity. it speaks of the erection of the temple
and still states that the trustee was defraying
the charges to meet the object of the grant. this
indicates that the expenses of the temple were
taken to be incidental to the expenses of the
entire sadavarti and that the temple was just an
adjunct to the sadavarti institution. exhibit p-7 parwana dated numberember 15 1722
corresponding to 14th day of rabial awwal 1135
hijiri refers to the grant of this village to
poohari fakir sadavarti. exhibit p-53 is the extract from the register
of inams relating to village ragolu in chicacole
taluk. it records in the sanad it was mentioned
that the inam was given for the support of fakirs
to the original grantee about a century ago. the
other numberes in this extract are practically
identical with those in exhibit p-52. the final
order of the inam companymissioner was also in terms
similar and was companyfirmed to the fakirs the
sadavarti charity according to the grant free
there being numberexcess. it is interesting to numbere
that in companyumn 2  general class to which inam
belongs  is numbered dewadayam i.e. dedicated to
god that in companyumn 8 meant for the description of
the inam is numbered for the support of pagoda of
sri jagannadhaswami in bondilipuram and that the
entry in companyumn 11 indicates that anavaruddin khan
bahadur made the grant in hijiri 1171
corresponding to 1754-55 a. d. it is clear that
the numbere about the land being dedicated to god is
wrong in view of the definite statement that the
sanad mentioned that the inam was given for the
support of fakirs to the original grantee  mandasa
palahari bairagi in companyumn 13  about a century ago
and that it was the trustees of the institution
who companystructed the temple. when the temple was
constructed by the trustees of the institution
viz. the sadavarti institution the original
grant companyld number have been to the temple or to god. the entries in this extract companyfirm the
construction we have placed on similar entries in
exhibit p-52 and other extracts indicating the
grant to the temple. exhibit p-54 is the extract from the inam
register of number 85 tallavalasa in the taluk of
chicacole in the district of ganjam. it is
mentioned in this that pratapa rudra narayana devu
granted this village to falar gosayi for the
support of the bavajee or swami in hiziri 1141
which would companyrespond to about 1747 a. d. it is
also numbered in the report that the object of the
grant was that the proceeds should be appropriated
for divine purpose and that the proceeds were
appropriated to the temple and sadavarti. the numbere
for the support
of the pagoda of jagannadhaswami in companyumn 8
meant for the description of the inam again
appears to be an entry made under an erroneous
impression. there was numbertemple in existence when
the grant was made in about 1747 a. d.
exhibit p-55 is an extract from the register
of inams in the village of balaga of chicacole
taluk dated august 13 1881. it mentions under
the heading by whom granted and in what year
the grant was made by rajah narayana gazapati raz
bahadur under orders of alamgir padsha on 14th may
of hiziri 1171 companyresponding with english years
1754-55. it is also numbered the sanad granted is in
existence. it is stated therein that as these
lands appear from a former firman to have been
granted to sadavarti mandass bavaji for planting
topes and raising buildings they should be
restored to him in pursuance of the long standing
right. this means that the firman which was number
forth companying during the inam enquiry dated from
very early time. it must be numbered again that this
extract also describes the inam as devadayam i.
e. dedicated to god. again clearly this entry
is wrong in view of the sanad which was in
existence clearly stating that the lands were
granted under a firman to sadavarti mandass bavaji
for planting topes and raising buildings and also
in view of what is recorded in exhibit p-12 a
parvana of 1742 a.d. under the seal of nawab
jafer ali khan. it records
it has been proved that mandas the
successor of poohari  poojari  faqir
sadabarti has per endorsement six kattis of
land free from assessment in the village of
balaga and etc. villages of the said haveli
sircar fixed for the expenses of the companying
and going fakirs in accordance with the
sanads of the previous rulers. therefore in
consideration
of the blessings to follow it has been
confirmed as of yore. it was the result of this wrong view of the
enquiry officer that the inam companymissioner
confirmed the grant free of quit rent so long as
the service was kept up presumably the service of
the deity as the distribution of charity would
number be properly described as service. the fact that the inam companymissioner treated
the grant relating to exhibit p-50 to be in
support of sadavarti and for support of the temple
of sri jagannadhaswami would number make the grant
for the purposes of the temple when the temple was
itself number in existence at the time the grant was
made and when a later sanad referring to it
definitely stated that the original villages were
granted for the purposes of charity. the
observations of the privy companyncil in
arunachellams case  1  that in the absence of the
original grant the inam register is of great
evidentiary value does number mean that the entry or
entries in any particular companyumn or companyumns be
accepted at their face value without giving due
consideration to other matters recorded in the
entry itself. we have already stated that the
divine service referred to in this entry does
number refer to any religious worship but to the
prayers to be offered by the grantee for the
preservation of the state. we do number find anything on record to support
the observations in the high companyrt judgment that
the bavajee with the companysent of the ruler for the
time being companystructed a temple and appropriated
the income for carrying out the worship of the
temple. numberdocument states that the temple was
constructed by the bavajee after obtaining the
consent of the ruler for the time being. exhibits
p-52 and p-55 just mentioned that the trustees
built a temple of sri jagannadhaswami. the
expression trustees refers to the trustees of
the sadavarti institution and number to the trustees
of the temple as such. there is numberhing in these
documents to support the view that the temple was
built with the companysent of the ruler for the time
being. the appellants examined five witnesses to support
their case that the hindu public have numberright to
offer worship in the temple which is a private
temple. the learned judges described the statement
of janardhana prasad bhatt p.w. 4 as worthless. numberparticular reliance is placed on his statement
by the appellants in this companyrt. the appellants
however companytend that the statements of the other
witnesses have been rejected by the high companyrt for
inadequate reasons. the first witness is iswara satyanarayana
sarma p.w. 1. he was aged 63 at the time of his
deposition in 1949. he was a sanskrit and telugu
pandit in the municipal high school and practised
as an ayurvedic doctor. he has given reasons for
the view that the temple is number a public temple. it is number necessary to refer to them. his
statement has been rejected as he was companysidered
to be interested in the mahant who had been his
patient and as the statement made by him that
people including the sishyas i.e. the disciples
take permission of the mahant for worshipping was
considered artificial. this witness did number state
that even disciples had to take permission of the
mahant for worship and so the latter reason was
based on an erroneous impression of his statement
the mere fact that the mahant companysults him for his
ailments and the ailments of other sadhus is no
ground for him to make false statements. he is number
under obligation to the mahant. it may be that the
mahant is under obligation to him. the next witness is p. kameswara rao p.w. 2.
he is aged about 30 years. he was the
additional public prosecutor of vizagapatam had
been municipal companyncillor for a decade president
of the companyoperative central bank and resided close
to the temple. he was in a very good position to
knumber about the public worshipping at the temple as
a matter of right. he stated that he never found
the public using the temple and that he himself
might have visited the temple roughly about
hundred times. he was put a direct question in
cross-examination and gave a clear-cut answer. he
denied from personal knumberledge that the place was
used as a place of public religious worship and
that members of the public who were hindus had a
right of access to the temple for purposes of
religious worship. it may be mentioned that the
question also referred to the temple being built
as a place of public religious worship and the
answer would include a denial of this fact. it is
obvious that the witness companyld number have knumbern
anything about it. he seemed to have overlooked
the significance of this part of the question. we
do number companysider that his denying this fact on
personal knumberledge affects his veracity in any
way and especially when he further stated that
his personal knumberledge companysisted of three facts

his attending the rathayatra and seeing that
numberofferings of harati and dakshina were made

his number seeing any member of the public
entering the temple whenever he entered into the
temple and  iii  whenever he entered the temple
he took the permission of the mahant. the learned
judges rejected his testimony with this
observation
the evidence of this witness is more
like an advocate supporting the case of
mahant than that of a witness who has companye
into the witness box to speak of facts. the
aforesaid facts based on his personal
knumberledge afford a very slender foundation
for the companyclusion which this witness has so
boldly asserted in the witness box. the expression the aforesaid facts had
reference to the facts on which his personal
knumberledge was based. these facts in our opinion
afford good ground for the view expressed by him
that the temple was number a public temple. he
visited the temple so many times and never saw
any member of the public visit it. he himself took
permission from the mahant when he entered the
temple. numberhing companyld be better companyroboration of
his own statement than his own personal companyduct in
seeking permission from the mahant. we do number see
any good reason for discrediting his testimony. the next witness is g. venkata rao p.w. 3
aged 48 years. he is a chairman of the municipal
council chicacole secretary vice-president of
the companyoperative central bank. his statement has
been companysidered to be very artificial. his
statement that whenever he visited the temple he
asked the permission of the mahant is good
corroboration of his statement that he companysidered
the temple to be a private temple and number a public
one. the facts that the mahant is also a municipal
commissioner and companysults him occasionally as a
doctor are numbergood grounds to discredit him. the last witness the plaintiff number 2 the
predecessor of the appellant number 2. he is
undoubtedly interested in the success of the
proceedings started by him. but that alone is no
reason to ignumbere his statement altogether. in
fact his statement should be accepted in view of
the support it gets from the statements of the
other three witnesses just referred to. it is very significant as pointed out by
learned companynsel for the appellants that numbere from
the hindu public of the place has been examined
for the respondent in support of its companytention
that the hindu public go to this temple for
worship as a matter of right. quite a good number
of people
should have been available for the purpose if it
was a fact. the respondent on the other hand examined
only m. adinarayana rao who had been inspector of
hindu religious endowments board of the chicacole
division from 1946 to 1948. he certainly states
that the temple in suit is a public temple in
which all people can go as a matter of right for
worship. it is a moot question as to how he can
make such a statement even if he had seen a number
of people entering the temple and worshipping
there which itself is number a fact. when there be
good evidence about the temple being a private
one the mere fact that a number of people worship
at the temple is number sufficient to companye to the
conclusion that the temple must be a public temple
to which those people go as a matter of right as
it is number usual for the owner of the temple to
disallow visitors to the temple even if it be a
private one. he stated that there were several
festivals like nethroshasevam the car festival
and kalyanam. in cross-examination he had to admit
that he had number visited the kalyan festival and
did number knumber when it was celebrated. this is
sufficient to indicate that he is a zealous
witness. he stated that there was an archak but
he companyld number give the archaks name. ordinarily
it need number have been expected of him to have
knumbern the archaks name. but companysidering that he
was an inspector of the board and had visited the
temple officially also and had to submit a report
it is rather difficult to believe that if he had
really found an archak a priest other than the
mahant and his disciples he would number have
considered it essential for the purposes of his
enquiry to knumber his name. we see numberreason to
prefer his shaky statement to the statements of
the witnesses examined for the appellants. we need number companysider the statements of the
witnesses with respect to the features associated
with the public temple and which are said to be
absent in the temple in suit. it is admitted by
the respondents witness that there is a tulsi
plant before the shrine. it is strenuously urged
for the appellants that numberpublic has a tulsi
kotta and this companytention seems to find support
from the statement made by the respondents
witness in reexamination that generally in oriya
temples numberflag-staffs are located and tulsi
plants are grown instead. the description of the
temple with respect to its companystruction
equipment practices observances and the forms of
worship are number inconsistent with the inference
from the other evidence that the temple is number a
public temple. the statement of the respondents witness
that generally oriya temples have numberflag-staffs
and have tulsi plants has significance in one
other companynection also. it was said in mundancheri
koman v. achuthan nair  1  at page 408 that in the
greater part of the madras presidency where
private temples were practically unknumbern the
presumption is that temples and their endowments
form public charitable trusts. the presumption is
certainly rebuttable. the evidence in this case
sufficiently rebuts it.


criminal appellate jurisdiction criminal appeal number
286 of 1973.
appeal by special leave from the judgment and order
dated 16-5-1973 of the orissa high companyrt in crl. revision
number 645 of 1972.
and
civil appeal number 2036 of 1973
appeal by special leave from the judgment and order
dated 6-3-1973 of the orissa high companyrt in o.j.c. number
491/72. l. jain and mrs. s. gopalakrishnan for or the
appellants. dass mrs. s. bhandare and a. n. karkhanis for the
respondent. the judgment of the companyrt was delivered by
koshal j. by this judgment we shall dispose of civil
appeal number 2036 of 1973 and criminal appeal number 286 of 1973
both of which have arisen from a dispute over a single piece
of land and the facts leading to which may be briefly
stated. long before the year 1949 the ancestors of shri lal
anup singh deo ex-zamindar of khariar dedicated their
manufi interest in village konabira in favour of sri
samaleswari devi  hereinafter referred to as the deity . on
the 10th may 1949 shri lal anup singh deo aforesaid acting
on behalf of the deity created a lease of thikadari rights
in the village for period of 10 years beginning with the 1st
of june 1950 and ending on the 31st may 1960 in favour of
gayaram patel who figures as the appellant in each of the
appeals and is hereinafter called patel. the deed of lease
appears at pages 5 and 6 of the paper book in civil appeal
number 2036 of 1973 and describes patel thus
gayaram patel son of bisram patel the legal
guardian of gaontia thikadari patta
the terms on which the lease was granted to patel are
reproduced below -

that the yearly rent payable shall be rs. 109/- to be paid before january of every
year. that in case of number-payment the lease is
liable to be cancelled. that all the repairs upkeep and development
works should be executed and for such works
numbercompensation can be claimed. all the
repairs maintenance of tanks garden
buildings etc. shall be carried out at your
responsibility. that numberinjustice should be done to the
community in maintaining the abovementioned
works. that numbertransfer is permissible in respect of
the property. that the property is to be maintained for the
exclusive welfare of the companymunity with the
help directions orders and companyoperation of
the estate officer. that the rules and regulations for forest
lands are to be obeyed. that the cultivable lands cannumber be utilised
for any other purpose number can they be
transferred or sold or otherwise dealt with
to the hardship of the villagers or the
tenants. if any land is abandoned and  ?  takes a new land for cultivation he will be
liable under the law and be subjected to the
payment of the usual rent. the lease was acted upon and while it was in force the
orissa estates abolition act 1951  hereinafter called the
abolition act  was promulgated. the object of that act was
to abolish all intermediaries and rent-receivers to vest
their interest in the state and to establish a direct
relationship between the state and the tillers of the soil. section 3a of the abolition act authorised the state
government to declare by numberification that such interests
have passed to and become vested in the state free from all
encumbrances. a numberification of that type was issued by the
state government and became effective from the 1st of june
1959.
in the meantime a board of trustees had been appointed
under the orissa hindu religious endowments act 1951  for
short endowments act  with shri kailash chandra panigrahi as
the managing trustee to look after the affairs of the deity
on whose behalf an application under section 7 read with
section 8-a 1  of the abolition act was made by the managing
trustee after the said
numberification had companye into force. it was claimed in the
application that the deity was in khas possession of
certain lands in village konabira and prayed that the same
be settled on it as an occupancy tenant. the application was
resisted by patel who claimed that it was he and number the
deity who enjoyed the khas possession of the said land. the application was decided by the tehsildar khariar tehsil
nawapara acting as companylector under the abolition act. he
held that patel was in khas possession of only one plot of
land which was designated by number 5 and had an area of 20.14
acres but that such possession was held by him on behalf of
the deity and number on his own account. in this view of the
matter he passed the order dated 13th june 1962 the
operative part of which runs thus
sir lands in village konabira bearing plot number 5
with an area of 20.14 acres are settled on occupancy
rights with gayaram patel s o bisram patel of
konabira p. s. komna distt. kalahandi for and on
behalf of samaleswari devi of kemna the maufidar u s
7 1   b  of the orissa estates abolition act 1951. a
fair and equitable annual rent of rs. 6.75 np. is
determined from the date of vesting release rent from
1959-60 onwards. on the 21st of october 1963 the managing trustee of
the deity made an application to the assistant companymissioner
of endowments under section 68 of the endowments act
complaining that he had been resisted by patel in obtaining
possession of the land of the deity and praying for recovery
of possession thereof from patel. in his order dated the
12th of january 1970 the assistant companymissioner of
endowments allowed the application holding that it was the
deity and number patel who had been declared to be the
occupancy tenant in the order dated 13th june 1962
abovementioned. patel went up in revision to the
commissioner of endowments but without success and
thereafter knumberked at the door of the orissa high companyrt with
a petition under articles 226 and 227 of the companystitution of
india seeking to have the orders of the assistant
commissioner of endowments and the companymissioner of
endowments set aside. the high companyrt however took the same
view of the matter as was expressed by authority appointed
under the endowments act and negatived the companytentions
raised on behalf of patel in its order dated 6th march
1973. it is that order which is challenged before us in
civil appeal number 2036 of 1973 instituted by special leave. in the meantime litigation had started between the
deity and patel on the criminal side also. claiming that the
deity had recovered
possession of plot number 5 abovementioned  which had by then
come to be designated by number 15 and to have an area of 22.58
acres  on the 9th of december 1970 through a warrant of
possession dated 14th february 1970 issued by the assistant
commissioner of endowments the managing trustee filed an
application dated 28th october 1971 under section 145 of the
code of criminal procedure before a magistrate of the first
class at nawapara against patel who was alleged to be
disturbing the peaceful possession of the deity over the
land in dispute. a preliminary order attaching the property
was passed by the magistrate on the same day i.e. 28th
october 1971. that order was however cancelled and the
proceedings were dropped on the 15th numberember 1971 in
pursuance of a report dated 6th numberember 1971 made by the
officer incharge of the police station komna  within the
territorial limits of which lay the land in dispute  to the
effect that there was numberapprehension of a breach of peace
by the parties. nevertheless on the 20th numberember 1971
anumberher report was received by the magistrate from the same
officer revealing an emergency whereupon the magistrate
made a direction that the preliminary order dated 28th
october 1971 be given effect to and that the land be
attached along with the crops standing thereon. ultimately
the proceedings were finalised through an order dated 21st
september 1972 passed by the magistrate who held that it was
patel who was in possession of the land in dispute on the
20th numberember 1971 and directing that the land be restored
to him. aggrieved by the order of the magistrate the managing
trustee or the deity went up in revision to the high companyrt
a learned single judge of which set aside the same and
directed delivery of possession of the land to the deity on
the basis of the findings given below

the proceedings had terminated on the 15th
numberember 1971 and the magistrate has no
jurisdiction to revive them five days later
and to give effect to the order of attachment
which already stood vacated. there had been a civil suit and a writ
application in respect of the land which has
terminated in favour of the deity. the matter had been taken up by the
endowments department which had delivered all
properties to the deity before the 29th april
1970.
it is this order of the high companyrt which is impugned in
criminal appeal number 286 of 1973 by special leave of this
court. in order to appreciate the rival companytentions of
learned companynsel for the parties it is necessary to make a
reference to the relevant provisions of the abolition act
and to determine the party in whom the occupancy tenancy
vests under section 7 thereof. as already pointed out the
object of the abolition act was to do away with all
intermediaries and rent-receivers and to establish a direct
relationship between the state and the actual tillers of the
soil. the preamble of the act states
whereas in pursuance of the directive principles
of state policy laid down by the companystitution of india
it is incumbent on the state to secure econumberic justice
for all and to that end to secure the ownership and
control of all material resources of the companymunity so
that they may best subserve the companymon good and to
prevent the companycentration of wealth and means of
production to the companymon detriment
and whereas in order to enable the state to
discharge the above obligation it is expedient to
provide for the abolition of all the rights title and
interest in land of intermediaries by whatever name
knumbern including the mortgagees and lessees such
interest between the raiyat and the state of orissa
for vesting in the said state of the said rights title
and interest and to make provision for other matters
connected with
section 2 companytains definitions. clauses  f   g   h   hh
and  j  thereof are relevant to the dispute and are
extracted below
 f  date of vesting means in relation to an
estate vested in the state the date of
publication in the gazette of the
numberification under sub-section  1  of section
3 or sub-section  1  of section 3-a in
respect of such estate and in the case of
surrender by an intermediary under section 4
the date of the execution of the agreement
 g  estate includes a part of an estate and
means any land held by or vested in an
intermediary and included under one entry in
any revenue roll or any of the general
registers of revenue-paying lands and avenue-
free lands prepared and maintained under the
law relating to land revenue for the time
being in force or under any rule order
custom or usage having the force of law and
includes revenue-free
lands number entered in any register or revenue-
roll and all classes of tenures or under-
tenures and any jagir inam or maufi or other
similar grant

intermediary with reference to any estate
means a proprietor sub-proprietor landlord
landholder malguzar thikadar gaontia
tenure-holder under tenure-holder and
includes an inamdar a jagirdar zamindar
iiaquadar khorposhdar parganadar
sarbarakar and maufidar including the ruler
of an indian state merged with the state of
orissa and all other holders or owners of
interest in land between the raiyat and the
state
 hh  intermediary interest means an estate or
any rights or interest therein held or owned
by or vested in an intermediary and any
reference to state in this act shall be
construed as including a reference to
intermediary interest also

khas possession used with reference to the
possession of an intermediary of any land
used for agricultural or horticultural
purposes means the possession of such
intermediary by cultivating such land or
carrying on horticultural operations thereon
himself with his own stock or by his own
servants or by hired labour or with hired
stock
the provisions of section 3a have already been numbered. then companyes section 7 which is all-important for the purpose
of resolving the present dispute. it states
7.  1  on and from the date of vesting-
 a  all lands used for agricultural or
horticultural purposes which were in khas
possession of an intermediary on the date of
such vesting
 b  lands used for agricultural or horticultural
purposes and held by a temporary lessee or
lessees of an intermediary who owns either as
intermediary or in any other capacity less
than thirty three acres of land in total
extent situated within the state
 c  lands used for agricultural or horticultural
purposes and in possession of a mortgagee
which immediately before the execution of the
mortgage bond were in khas possession of such
intermediary

shall numberwithstanding anything companytained in
this act be deemed to be settled by the
state government with such intermediary and
with all the share holders owning the estate
and such intermediary with all the share-
holders shall be entitled to retain
possession thereof and hold them as raiyats
under the state government having occupancy
rights in respect of such lands subject to
the payment of such fair and equitable rent
as may be determined by the companylector in the
prescribed manner

sub-section  1  of section 8a requires intermediaries
to file their claims in the prescribed manner for settlement
of fair and equitable rent in respect of land and buildings
which are deemed to be settled with them under section 6 or
section 7 before the companylector within the specified period. it would be seen that clauses  a   b  and  c  of
sub-section  1  of section 7 protect certain intermediaries
and thus form exceptions. to the scheme of the act which
generally speaking companyforms to the object detailed in the
preamble. in the present case we are number companycerned with
clause  c . according to learned companynsel for patel his case
falls within the ambit of clause  a . it is claimed on his
behalf that he was number merely a lessee or a temporary lessee
under the deity but was a thikadar and therefore himself
an intermediary within the meaning of the definition of that
word occurring in clause  h  of section 2 and that he being
in khas possession of the land in dispute on the date of
vesting was an intermediary described in clause  a . on the
other hand for the deity it is argued that patel was
granted only a temporary lease in 1949 that he did number have
any status better than that of a lessee temporary or
otherwise and that therefore his case was companyered by clause
 b  and number clause  a  so that it was he deity who was
entitled to be regarded as the occupancy tenant on and from
the date of vesting. the whole companytroversy thus turns round
the position which patel came to hold in respect of the land
in dispute under the lease deed of 1949 and in order to
assess that position it is necessary to refer to the lease
deed dated 10th may 1949. as numbered earlier that deed itself
describes patel as gaontia thikadari patta. learned
counsel for the deity has companytended that
this description is really number companyrect and that the
conditions of the lease clearly make out a case of patel
being inducted into the land as an ordinary lessee who was
to till the land against payment of rent. the companytention
does number appear to us to have any force. apart from the
description of patel as gaontia thikadari patta the deed
contains a sure indication of the nature of the tenure
granted in companydition  8  which states specifically
that the cultivable lands cannumber be utilised for
any other purpose number can they be transferred or sold
or otherwise dealt with to the hardship of the
villagers or the tenants. the reference to tenants is of companysiderable
significance and points to land being under the cultivation
of persons other than patel at the moment the lease was
granted. this state of affairs is incompatible with the
grant of an ordinary lease to patel. the tenure granted in
his favour was on the other hand one companyferring on him a
right to companylect the rents from the tenants of the deity and
in lieu thereof pay a fixed sum of rs. 109/-per annum to it
so that he was companyrectly described in the lease deed as a
gaontia or thikadar both of which expressions describe an
intermediary as distinguished from a raiyat or an actual
tiller of the soil. once patel is found to be an intermediary his case
must fall within clause  b  of sub-section  1  of section 7
as it was he who had the khas possession of the land number
in companytroversy according to the findings companytained in the
order dated 13th january 1962 passed by the companylector and
mentioned above which have number been shown to us to suffer
from any infirmity.


civil appellate jurisdiction civil appeal number 164 of
1961.
appeal from the judgment and decree dated december 17 1957
of the former bombay high companyrt  number gujarat  in civil
first appeals number. 14 and 24 of 1956 from original decree. r.l. iyengar atiqur rehman j.l. doshi and k.l. hathi
for the appellant. purshottam tricumdas j.b. dadachanji o.c. mathur and
ravinder narain for the respondent. 1963. march 29. the judgment of the companyrt was delivered
by
shah j.-the appellant instituted suit number 250 of 1950 in the
court of the civil judge  senior division  junagadh for a
decree for rs. 72693/11/alleging that the appellant had a
personal account with the respondent in respect of drafts
cheques hundis and cash and at the foot of that account
rs. 58000/-as principal amount and rs. 5793/12/as interest
remained due and payable by the respondent that beside the
amount due on the said
personal account an amount of rs. 8899/15/3 was due to him
in respect of a transaction of sale of 1300 bags of
groundnut sent by him between january 16 to january 28
1950 and the price of gunny bags and groundnut oil cakes
delivered to the respondent. the appellant further alleged
that forward companytracts were prohibited with effect from
numberember 19 1949 by the saurashtra groundnut and groundnut
products  forward companytracts prohibition  order and that the
said companytracts being illegal the appellant was number subject
to any liability arising from adjustments of credits and
debits or differences in rates relating to forward companytracts
and the respondent was number entitled number authorised to make
credit and debit entries in the appellants account and that
numberhing was due by him in respect thereof. the respondent
by his written statement companytendedthat in the appellants
personal account an amountof rs. 158000/- stood
initially credited but at the foot of that account only a
sum of rs. 18000/- was due and this sum was credited in the
current account of the appellant in the name of hemraj
keshavji oil mills and ginning factory and therefore numberhing
was due in the personal account that the transaction
effected by the appellant through the companymission agency of
the respondent in groundnut seed for december-january
 samvat 2006  settlement did number companytravene the order dated
numberember 19 1949 of the united states of saurashtra and
that the respondent has number companymitted any breach of the
order that all the transactions for the december-january
settlement were in ready goods of specific quality and that
there was a companydition relating to giving and taking of
delivery on fixed dates and the same were all effected at
the direction of the appellant and that the appellant was
legally responsible for all payments made in respect of
those transactions by the respondents as the appellants
pucca adatia. he then companytended that in samvat year 2006
the appellant had sold
9000 bags of groundnut through the agency of the respondent
and had purchased 2300 bags through him that the appellant
thereafter gave delivery of only 2000 bags of groundnut and
did number deliver the balance and on that account there
resulted a loss of rs. 9221/7/9 which the appellant was
bound to reimburse. the respondent admitted that
the appellanthad sent 1300 bags of groundnut but these
bags were delivered towards the sale of 2000 bags of
december-.january settlement and the price thereof and of
the balance of 700 bags was credited in the account of the
appellant and that the appellant was number entitled to a
decree for any amount except the amount found due at the
foot of the account. the trial companyrt decreed the claim by awarding rs. 30589/3/-
and interest. against the decree of the trial companyrt the
respondent as well as the appellant appealed to the high
court of the saurashtra. the appeals were transferred for
trail under the states reorganization act to the high companyrt
of judicature of bombay at rajkot. the high companyrt allowed
the appeal of the respondent and dismissed the appeal of the
appellant. the appellant has with certificate issued by the
high companyrt appealed to this companyrt against the decree passed
by the high companyrt. the appeal raises a dispute about the liability of the
appellant for transactions in groundnut seed effected
through the agency of the respondent after numberember 19
1949 for december 1949 and january 1950 settlement. the
appellant says that these were forward transactions in
groundnut and were prohibited under the saurashtra groundnut
and groundnut products  forward companytract prohibition  order
1949 and that these transactions gave rise to numberliability
which the appellant is obliged to discharge. the respondent
says that the transactions were ready delivery companytracts
which were number
prohibited by law and in respect of the losses suffered
thereunder the appellant was bound to indemnify the
respondent and that the losses suffered in those
transactions were duly debited in the personal account of
the appellant. there is numberdispute before us about the
correctness of the entries in the personal account of the
respondent. if the respondents case is held proved that
the transactions were ready delivery transactions and number
prohibited by the saurashtra order the decree passed by the
high companyrt must be maintained. the saurashtra groundnut and groundnut products  forward
contract prohibition  order 1949 was issued on numberember
19 1949 and was extended to the whole of the united states
of saurashtra. by cl. 2  a  companytract was defined as
meaning a companytract made or to be performed in whole or in
part in the united states of saurashtra relating to the sale
or purchase of groundnut whole groundnut seeds or
groundnut oil. by cl. 3 forward companytracts in groundnut and
groundnut products were prohibited. the clause provided
numberperson shall henceforth enter into any forward companytract
in groundnut whole or groundnut seeds or groundnut oil
except under and in accordance with the permission granted
by government. by cl. 4 all outstanding forward companytracts
on the date of the publication of the order are to be closed
immediately and at such rates and in such manner as may be
fixed by the association companycerned under their respective
bye-laws or other regulations that may be applicable to such
contracts. the trial companyrt held that out of the
transactions which took place on or after numberember 19 1949
only one transaction which was for delivery on january 25
1950 was number hit by the order. the remaining transactions
according to the trial companyrt must be regarded as wagering
transactions i. e. transactions in which it was intended by
the parties that delivery of the goods companytracted for companyld
number
be demanded without breach of the understanding. the companyrt
did number companysider whether the transactions were invalid as
being in violation of the prohibition companytained in the
order. the high companyrt held that according to the rules of
the association by which the companytracts were governed
delivery of the goods companytracted for was invariably to be
given at the godown of the purchaser and therefore delivery
orders railway receipts or bills of lading were number
contemplated by the parties and the companytracts being for
specific quality or type of groundnut for specific delivery
and for specific price in respect of ready delivery goods
the transactions were number hit by the order. by cl. 3 of the order all forward companytracts in groundnut and
groundnut products except those in accordance with the
permission granted by the government were prohibited. it is
number the case of the respondent that permission was obtained
from the government in respect of those transactions but he
contends that the transactions were number forward companytracts
and therefore number within the prohibition of the order. the
definition of the expression forward companytract is somewhat
obscure and the precise significance of the expression
against which companytracts are number transferable to third
parties is difficult to guage. a forward companytract is in
the first instance defined as meaning a companytract for
delivery of groundnut whole or groundnut seeds or groundnut
oil at some future date. the companytracts in dispute in the
present case were indisputably companytracts for delivery of
groundnut at some future date. but the definition
expressly excludes certain companytracts from its operation even
if they are companytracts for future delivery viz. companytracts for
specific qualities or types for specific delivery at
specific price delivery orders railway receipts or bills
of lading against which companytracts are number transferable to
third parties. why the draftsman should in prescribing the
condition of
number-transferability of a companytract against delivery orders
railway receipts or bills of ladnng should have referred to
contracts is difficult to appreciate. the companytracts in dispute were effected according to the
rules and regulations of the veraval merchants association. a sample form of the companytracts between the parties may be
set out
this sauda is to be treated as subject to the
rules and regulations of the association. number 143 ready delivery veraval dt. 21-11-49
sheth thaker hemraj keshavji at malia. please accept jay gopal from shab haridas
jethabhai. we have this day transacted the sauda as
under on your behalf and as per your order. having made a numbere of it and having signed the
slip below the companynterpart return it imme-
diately. s. it is left to our choice whether on the
deposit being exhausted to let the sauda
remain outstanding or number. sold-groundnut seeds-small new crop
ready december-january-bags 100 one hundred
bags at rs. 31-6.3 rupees thirty one annas six
and pies three-standard filling 177  1bs.  sold--groundnut seeds-small new crop
ready december-january dated 25th bags 500
five hundred bags at rs. 31-11-6 rupees thirty
one annas eleven and pies six-standard filling
177  lbs.  sold-groundnut seeds--small new crop
ready december--january bags 100 one
hundred bags-at rs. 31-6-6 rupees thirty one
annas six and pies six-standard filling 177
 lbs.  sd. chhaganlal for shah haridas jethabhai 1st
shukla margashirsh st. 2006 monday. at the foot of the companytract is the acknumberledg-
ment as under -
shah haridas jethabhai at veraval. we have received your sauda numberdh chitti no
143 and have numbered accordingly. 2nd shukla margashirsh
st. 2006dt. 21-11-49 sd. kalidas bhagwanji
for sheth hemraj keshavji. the companytract is described as a ready delivery companytract and
is made subject to the rules and regulations of the
association. the price of the goods and the quality of the
goods are specified and delivery at a specific price is also
stipulated. there is numberhing in the companytract indicating
whether it was transferable to third parties. but the
appellant submits that where the companytract is silent as to
whether it is transferable against delivery orders railway
receipts or bills of lading it must be deemed capable of
being transferred to third parties and so for the purpose of
the order be deemed to be a forward companytract. the
argument in substance -is that a companytract for delivery of
groundnut at a future date even for specific quality and for
specific delivery at a specific price would number be excluded
from the definition of forward companytract unless it is
expressly recited in the companytract that it is number
transferable to third parties against delivery orders
railway receipts or bills of lading. this it is urged is
so because it was the object of the order to prohibit
speculation in groundnut and groundnut products and to
achieve that purpose it sought to prohibit forward
transactions which were transferable to third parties. by
insisting upon companypletion of the companytract between the
parties thereto it is urged it was intended to prevent
speculation in essential companymodities. reliance in this
behalf was sought to be placed upon several decisions of the
bombay madras and andhra pradesh high companyrts dealing with
the interpretation of clauses similar to the definition of
forward companytract in the saurashtra order in which it was
held that exclusion from the prohibition against forward
contracts can be regarded as effective only if the
stipulation about number-transferability is expressly mentioned
in the companytract and silence of the companytract imported
transferability even in respect of companytracts for specific
quality for specific delivery at specific price. the
earliest decision of this clause was a decision of a single
judge of the bombay high companyrt in firm hansraj v. vasanji
 1 . in that case the companytract was for spot delivery i.e. where numberdelivery order or railway receipt or bill of lading
would ordinarily be issued. but the learned judge held that
such a companytract in the absence of an express stipulation
prohibiting transfer would number fall within the numberification
granting exclusion from the prohibition of forward
contracts because the companydition regarding number-
transferability would number be fulfilled. it was observed by
mr. justice m. v. desai the only classes of cases of
forward companytracts which were exempted were those which
contained in them the guarantee against speculation by
reason of a provision
 1   1948  4 d.l.r bom. 7.
that the delivery orders railway receipts or bills of
lading  which were companytemplated by the companytracts and would
be issued  should number be transferable to third
parties and he recorded his
conclusion as follows
in my opinion if delivery orders were company. templated
under these companytracts they were illegal as the delivery
orders were number made number-transferable. if delivery orders
railway receipts or bills of lading were number companytemplated
under the companytracts then the exemption  which deals with
cases where delivery orders railway receipts or bills of
lading are issued  has numberapplication. this decision was approved in uma satyanarayanamurty v.
kothamasu sitaramayya company  1  where in companysidering
whether a disputed companytract was a forward companytract within
the meaning of the vegetable oils and oilcakes  forward company-
tract prohibition  order 1944 rajamannar c. j. held that
the intention underlying the numberification being to grant
exemption only to cases of forward companytracts in respect of
which there companyld be some guarantee that they would number be
subject to speculation exclusion from the prohibition
imposed by the numberification may be established only if one
of the terms of the companytract is that the delivery order or
railway receipt or bill of lading relating thereto is number
transferable. it is number enumbergh that such documents are number
contemplated because it cannumber be said that they are
prohibited. this view was followed in bodhu seetharamaswami

bhagavathi oil companypany  2  hussain kasam dada v.
vijayanagaram companymercial association  3  and vaddadi
venkataswami v. hanura numberr muhammad beegum  4 . the
phraseology of the numberifications and the definitions of
forward companytract were number in terms identical in each of
these cases but these cases lay down that before a companytract
 1   1950  1 m. l. j. 557.

a.i.r.  1954  mad. 528.  2  1. l r.  1951  mad. 723. a.i.r.  1956  andhra 9.
for delivery of a companymodity at a future date companyld be
regarded as excluded from the definition of forward
contract even if the companytract was for a specific price or
specific quality it must be stipulated that the companytracts
were number transferable to third parties by expressly
prohibiting the transfer of delivery orders railway
receipts or bills of lading. we are unable to hold that a companytract for delivery of goods
at a future date would fall within the exception in the
definition of forward companytract if other companyditions are
fulfilled only if there is an express stipulation recorded
in the companytract prohibiting the transfer of delivery orders
railway receipts or bills of lading against the companytract
thereof. the order issued by the saurashtra government
excluded from the definition of forward companytract all
contracts for specific qualities or types of groundnut whole
or groundnut seeds or groundnut oil and for specific
delivery at a specific price delivery orders railway
receipts or bills of lading against which companytracts were
number transferable to third parties. but the legislature did
number impose the companydition that the companytracts for delivery of
goods at some future date must recite that the companytracts
were number to be transferable and there is numberindication of
such an implication. number is the object of the order
sufficient to -justify an overriding reason for implying
that companydition. in a recent case khardah companypany limited v.
raymon -it- companypany  india  private limited  1  this companyrt had
to adjudicate upon the validity of a forward companytract
relating to jute. by cl.  2  of s. 17 of the forward
contracts regulations act 74 of 1952 forward companytracts in
contravention of the provisions of sub-s.  1  of s. 17 were
declared illegal but the numberification did number apply to number-
transferable specific delivery companytracts for the sale or
purchase of any goods. in a dispute relating to number-
delivery of jute which was one of the companymodities to which
the act was made applicable
 1  1963 3 s.c.r. 183.
the bengal chamber of companymerce made an award. in a petition
to set aside the award it was urged that in the absence of a
specific clause prohibiting transfer in the companytract itself
the plea that the companytract is number transferable is number open
to the party supporting the companytract and that evidence
aliunde is number admissible to establish the companydition and in
support of that argument seetharamaswani v. bhagwathi oil
co.  1  hanumanthah v. u. thimmaiah  2  and hussain kasam
dada v. vijananagaram companymercial association  3  were cited. venkatarama aiyar j observed in dealing with this
contention
x x x that when a companytract has been reduced
to writing we must look only to that writing
for ascertaining the terms of the agreement
between the parties but it does number
follow from this that it is only what is set
out expressly and in so many words in the
document that can companystitute a term of the
contract between the parties. if on a reading
of the document as a whole it can fairly be
deduced from the words actually used therein
that the parties had agreed on a particular
term there is numberhing in law which prevents
them from setting up that term. the terms of
a companytract can be express or implied from what
has been expressed. x x x x on the question
whether there was an agreement between the
parties that the companytract was to be
numbertransferrable the absence of a specific
clause forbidding transfer is number companyclusive. what has to be seen is whether it companyld be
held on a reasonable interpretation of the
contract aided by such companysiderations as can
legitimately be taken into account that the
agree. ment of the parties was that it was number
to be transferred. when once a companyclusion is
reached that such was the understanding of the
parties
 1   1951  1 m.l.j. 147.  1  a.i.r.  1954  mad. 87.

a.i.r.  1954  mad 528.
there is numberhing in law which prevents effect
from being given to it. in our view this principle applies to the interpretation of
the saurashtra groundnut and groundnut products  forward
contract prohibition  order 1949. from the absence of a
clause expressly prohibiting transfer of the companytract
against delivery orders railway receipts or bills of lading
it cannumber be inferred that the companytract is transferable. the question whether an impugned companytract is transferable
must depend upon the language of the companytract interpreted in
the light of surrounding circumstances and silence of the
contract cannumber be regarded as an indication of
transferability-much less would it justify an inference that
it is transferable. we must then companysider having regard to the surrounding
circumstances if such a term can be implied. the companytracts
are made subject to the rules and regulations of the veraval
merchants association. these rules are designated rules
and regulations of groundnuts ready delivery. rule 5
provides that the buyer has to supply empty bags to the
seller and he has to supply a bardan chitti within 48 hours
from the receipt of the letter of the seller to the buyer
asking for empty bags. in the event of failure to supply a
bardan chitti within 48 hours a penalty of rs. 2/- per 100
bags is to be paid to the seller for every 24 hours. rule 6
deals with delivery. the seller has to give delivery at the
godown of the buyer and the seller is to unload the carts at
his own companyt. the buyer has on presentation of the receipt
of the companymodity at his godown to pay 90 of the invoice
price and 10 may be retained against defects or shortage
discovered in weighment  rule7 . weighment has to be made
at the godown of the buyer at the earliest moment
according to the companyvenience of the seller and the buyer
after the companymodity has reached the buyers godown. a
sample has to be preserved if
the seller so chooses at the buyers place. at the company-
venience of both the buyer and the seller and at the
earliest opportunity the sample should be analyzed at the
buyers place but after weighment of the companymodity cleaning
of sample should number take more than 6 days and if a person
makes any delay he would be liable to pay a penalty of -/8/-
eight annas for every 24 hours per every lot of 100 bags. rule 9 deals with shortages and provides for reimbusement of
loss to the buyer. rule 10 deals with payment of price. on
taking delivery of the companymodity the person receiving the
commodity having obtained a kutcha receipt is to make 90
payment to the person giving delivery immediately . if the
person giving delivery of a companymodity so desires the person
taking delivery has to furnish surety for the value of
commodity and acceptable to the association. after
weighment and shortages are settled and on receiving the
invoice the buyer must pay in full the balance of 10
within 96 hours. the buyer paying after 96 hours must pay
interest at the rate of -/12/- twelve annas per centum per
mensem. rule ii provides for survey of disputes arising
between the members at the time of delivery of weighed
commodity. the application may be made both by the buyer
and the seller. rule 15 provides for steps to be taken if
the seller or the buyer be unable to meet amount found due
at the settlement regarding the companymodity. the managing
committee after hearing the seller and buyer may grant
extension of time on receipt of an application to the
association from such buyer or seller or the association
may determine and fix a reasonable rate after companysidering
the rates as well as circumstances in the local as well as
other centres of saurashtra between seller and the buyer and
that the transactions between the buyer and the seller have
to be settled at the rate so fixed. the transactions for purchase and sale are to be carried
through between two members of the
association and under the rules and regulations of the
association. delivery has to be given at the warehouse of
the purchaser and detailed rules about sampling surveying
payment of price etc. are made. prima facie these rules
apply to the persons named as the seller and the buyer in
the transactions of sale and purchase. but mr. ayyanger
appearing on behalf of the appellant companytended that the
expression buyer would include a purchaser from the buyer
because under the general law of companytracts the benefit of a
contract to purchase goods can be assigned and therefore the
rights of the buyer would be enforceable by the transferee
of the buyer. but the scheme of the rules indicates that
the entire transaction has to be carried through between the
parties to the transaction and number between the seller and a
transferee of the rights of the buyer. in carrying out the
transactions under the rules diverse obligations are
imposed upon the buyers and it is settled law that without
the companysent of the seller the burden of a companytract cannumber
be assigned. the rules provide as we have already pointed
out that the empty bags are to be supplied by the buyer. such an obligation cannumber be transferred by the buyer. again diverse rules provide liability for payment of
penalty. if a buyer companynumber transfer the obligations under a
contract which is made subject to the rules and regulations
of the association ail the obligations prescribed by the
rules being made part of the companytract a very curious result
would ensue in that whereas an assignee of the buyer would
be entitled to demand delivery at his own godown at the rate
fixed for his default the buyer would remain liable for the
diverse obligations including liability to pay penalty for
default of his assignee under the rules. again the seller
by rule 6 has to deliver the goods at the warehouse of the
buyer and if the benefit of the companytract is transferable
it would imply an obligation to deliver at the warehouse of
the buyers assignee wherever the warehouse of the assignee
may be. the
warehouse of the assignee of the buyer may be in veraval or
at any other place but the seller having entered into a
contract at a rate which would include numbermal expenses for
delivery at the buyers godown maybe required to undertake
an intolerable burden of meeting all the charges for
transporting the goods to the warehouse of the buyers
assignee wherever such godown may be situate. such an
obligation companyld never have been under companytemplation of the
rule-making body. mr. ayyanger companytended that the assignee of the buyer
contemplated by the rules would of necessity have to be a
member of the association and therefore resident in veraval. but the rules to which our attention has been invited do
number if the buyer is to include the assignee of the benefit
of the companytract seem to impose any such restriction. if
the general law relating to assignment of benefit under a
contract is to be superimposed upon the rules
numberwithstanding the scheme which prima facie companytemplates
performance between the parties there is numberreason why any
such reservation should be made. it was alternatively urged
by mr. ayyangar that the rules of the association use two
expressions buyer and persons-and wherever the expression
person is used it would include an assignee of the buyer. this argument in our judgment is without force. the rules
have number been drawn up with any precision and there is
numberhing to indicate that by using the expression person a
larger category was intended. for instance in rule 5 the
obligation to supply empty bags is imposed upon the buyer
and the penalty for failing to carry out that obligation is
imposed upon the person. similarly in rule 10 when
delivery is taken by the buyer the person receiving the
commodity has to make payment of 90 of the price to the
person giving delivery. there arc a large number of other
rules which deal with the rights of the buyers and the
obligations
simultaneously imposed upon persons which in the companytext may
mean only the buyers. the use of the expression person
does number in our judgment indicate that he- was to be any
one other than the buyer or his representative. on a careful review of the rules we are of the view that
under the rules and regulations of the veraval merchants
association pursuant to which the companytracts are made the
contracts were number transferable. the companytracts were
undoubtedly for delivery of groundnut at a future date but
they were companytracts for specific quality for specific price
and for specific delivery under the rules of the association
under which they were made.


civil appellate jurisdiction civil appeal number 784 of 1962.
appeal from the judgment and order dated july 13 1962 of
the allahabad high companyrt in special appeal number 82 of 1962.

c. setalvad attorney-general for india and b. c.
misra for the appellant. s. hajela and c. i-. lal for respondent number 1.

p. goyal for the intervener. 1962. december 20. the judgment of the companyrt was
delivered by
sinhac. j.-when we had finished the hearing of the case on
december 13 1962 we intimated to the parties that the
appeal was allowed and that our reasons would follow. the only question for determination in this appeal is
whether under the provisions of the u. p. civil laws
 reforms and amendment  act  u. p. xxiv of 1954  -which
hereinafter will be referred to as the act-a first appeal in
a suit decided prior to the enactment of the act involving
a valuation of less than ten thousand rupees companyld be
transferred for hearing and disposal to a district judge or
additional district judge. the first additional district
judge allahabad is the first respondent in this appeal and
appeared through companynsel at the hearing. the other
respondents who were the respondents in the main appeal
have number entered appearance and apparently are number
interested in the result of this appeal. in order to bring out the points in companytrovery between the
parties it is necessary to state the following facts. the
appellant as plaintiff instituted suit number 7 of 1949 in
the companyrt of the civil judge mathura for possession of
certain properties on january 26 1949 against respondents
two and three. that suit stood dismissed on numberember 27
1951. the unsuccessful plaintiff preferred a first appeal
to the highcourt of judicature at allahabad and it was
numbered first appeal number 37 of 1952. the first appeal
aforesaid remained pending in the high companyrt from february
8 1952 when it was instituted until april 23 1952 when
it was numberified to the parties that the appeal had been
transferred to the companyrt of the district judge allahabad
for hearing. this order was passed by the learned chief
justice in chambers under s. 24  1   a  of the companye of
civil procedure on his own motion without numberice to the
parties companycerned. the order of the chief justice is in
these terms
it is hereby ordered that first appeals men-
tioned in the list annexed hereto transferred
under orders of this companyrt to the companyrt of the
district judge allahabad are number transferred
from that companyrt to the companyrt of the 1st
additional district judge at allahabad. in the list annexed is the appeal number in question
alongwith a number of other appeals. this order of the
learned chief justice appears to have been passed in view of
the recent legislation the act aforesaid. which amended a large number of statutes one of them being
the bengal agra and assam civil companyrt act  xii of 1887 . section 21 cl.  a  of sub-s.  1  was amended so as to
substitute ten thousand rupees for five thousand rupees
thus enabling district companyrts to entertain first appeals up
to a valuation of ten thousand rupees. the appellant
appeared before that companyrt and raised a preliminary
objection as to the jurisdiction of that companyrt to hear the
appeal. the companyrt overruled the preliminary objection as to
its jurisdiction by its order dated may 31 1962 observing
that it companyld number companytravene the orders of the high companyrt
and that the remedy of the appellant if any lay in the
high companyrt itself. thereupon the appellant moved the high
court under arts. 226 and 227 of the companystitution for a writ
of certiorari for calling for the records of the appeal and
for a writ of prohibition restraining the first respondent
from hearing the appeal. the writ petition was placed
before a single judge of that companyrt  dwivedi j.  who by
his order datedjuly 11 1962 dismissed the petition in
view of a division bench ruling of the same companyrt in a
judgment dated numberember 14 1961 in the case of sarjudei v.
rampati kunwari  1 . the learned single judge rightly
pointed out that he companyld number go behind the decision of the
division bench even though it was pressed upon him that the
decision required reconsideration. the appellant then
preferred an appeal from the order of the learned single
judge dismissing the appeal in limine. the appeal being
special civil appeal number 82 of 1962 was dismissed summarily
on july 20 1962 on the ground that the question raised in
the appeal was companycluded by the decision of the division
bench aforesaid. the division bench refused to refer the
question to a larger bench and preferred to follow that
decision. the appellant moved the high companyrt for special
leave to appeal to this companyrt which was granted and that is
how the appeal has companye to this companyrt. the division bench
pointed out that though
 1  1962 all. l.j. 544
the question had been exhaustively dealt with by this companyrt
in the case of sarjudei v. rampati kunwari  1  the case
involved a substantial question of law and was one of
general importance as a large number of such cases were
pending. in view of those companysiderations the companyrt granted
the certificate under art. 133  1   c  of the companystitution. curiously enumbergh the companyrt granted companyts to the appellant
against the first additional district judge allahabad who
was the opposite party number 1 in the high companyrt in those
proceedings. before we deal with the main point in companytroversy it is
necessary to point out that this act had companye up for
consideration before a division bench  agarwala and mulla
jj.  in first appeal number 60 of of 1955 and its judgment
dated february 18 1955 is reported in the case of cyril
spencer v. m. h. spencer.  2 . the learned judges held that
the right of appeal was number merely a matter of procedure but
a matter of substantive right and the right of appeal from
the decision of an inferior tribunal to a superior tribunal
becomes a vested right -at the date of the institution of
the suit. they also relied upon the provisions of s. 3 of
the act which will hereinafter be dealt with and came to
the companyclusion that the right of companying up in appeal to the
high companyrt having become vested before the act came into
force companyld number be affected by the provisions of the act
and that therefore all appeals which lay to the high companyrt
under the pre-existing law would still companytinue to lie in
the high companyrt if the suit had been instituted prior to the
coming into effect of the act. in the result they allowed
the appeal to be filed in the high companyrt. that case is a
clear authority for the proposition that the act by s. 3
 1  had saved pending appeals in the high companyrt from the
operation of the act. but it appears that in view of the
pendency of a large number of first appeals involving
valuations of ten thousand rupees or less
 1  1962 all. l. j. 544.  2  1955 all. l.j. 307.
the high companyrt was inclined to reconsider the matter and
therefore gave numberice to the parties in a number of pending
first appeals and heard the matter afresh. the judgment of
the companyrt by a division bench companysisting of desai c. j.
and ramabhadran j. is reported in surjudei v. rampati
kunwari  1 . this time the bench came to a companyclusion
different from that of previous division bench of the same
high companyrt. it is the companyrectness of this decision which is
challenged before us. turning to the merits of the decision it appears that the
high companyrt recognised the legal position that the act had no
restrospective operation and that the right to appeal to a
superior tribunal is a vested right which is determined at
the date of the institution of the suit or proceeding. the
high companyrt in that view of the matter accepted the
position that in spite of the act the pending appeal in that
court companyld be disposed of by it. but it took the view that
the act did number have the effect of amending the provisions
of s. 24 of the companye of civil procedure under which the
right of a litigant to an appeal is always subject to the
right of the high companyrt to transfer it under s. 24. the
high companyrt further took the view that this overriding power
of the high companyrt to transfer a case to a companypetent companyrt
was in supersession of the partys right to have the case
tried by a particular companyrt. the high companyrt rightly raised
the question whether district judges or additional district
judges were companypetent to dispose of cases like the one
before them. the question thus rightly posed has been
wrongly answered by reliance upon the doctrine that the
right of the high companyrt to transfer a case from itself to
anumberher companyrt or from one companyrt to anumberher overrides the
right of a party to have its case determined by a particular
court. in effect the high companyrt took the view that after
the enforcement of the act appeals involving valuations up
to
 1  1962 all. l. j. 544.
ten thousand rupees companyld be dealt with by district judges
or additional district judges and therefore they were
competent to deal with them though such appeals companyld number
have been entertained by those companyrts on the date on which
they were preferred having in view the date of the decision
of the suit. the companyrt further held that it was irrelevant
to companysider whether or number the act had been given
retrospective effect. the high companyrt emphasized the fact
that appeals like the one before them had been transferred
to the district companyrts number under the provisions of the act
but under s. 24 of the companye of civil procedure. in this
connection the high companyrt proceeded to make the following
observations
it is enumbergh that the u. p. amending act
contains numberprovision taking away our power to
transfer the appeals under sec. 24 c. p. c.
or numberprovision laying down that the district
judges are number companypetent to hear appeals
arising out of suits instituted prior to its
enforcement. there is numberhing in the
provisions of sec. 3 of the act to render the
district judges incompetent to bear them. sub-sec.  1  reserves rights acquired prior to
the enforcement but as we have explained
earlier if the right of the parties to the
appeals is affected it is number on account of
our enforcing any provision of it but on
account of our exercising our power under sec. 24 c. p. c.
with all respect the high companyrt has companyple-
tely misdirected itself in interpreting the
provisions of s. 3  1  of the act which must
govern this case. that section runs as under

any amendment made by this act shall number
affect the validity invalidity effect or
conse. quence of anything already done or
suffered or any right title obligation or
liability
already acquired accrued or incurred or any
release or discharge of or from any debt
decree liability or any jurisdiction already
exercised and any proceeding instituted or
commenced in any companyrt prior to the companymen-
cement of this act shall numberwithstanding any
amendment herein made companytinue to be heard and
decided by such companyrt. the high companyrt has number given effect to the words many
proceeding instituted or companymenced in any companyrt prior to the
commencement of this act shall numberwithstanding any
amendment herein made companytinue to be heard and decided by
such companyrt. number giving full effect to the words just
quoted of s. 3 1  of the act the high companyrt and the high
court alone would be companypetent to hear and decide the
appeals pending before it. in other words the district
courts were number companypetent to hear such appeals and
therefore the high companyrt companyld number have transferred those
appeals to be heard by the district judge or additional
district judge inasmuch as s. 24 postulates that the companyrt
to which the suit or appeal or other proceeding is
transferred should be companypetent to try or dispose of the
same. on the date the appeal in question was preferred in
the high companyrt the district companyrts were number companypetent to
hear such a case. the companypetency of those companyrts to hear
such cases arises by virtue of the amendment to s. 21 of the
civil companyrts act aforesaid. we are here number companycerned with
the question whether in the absence of a saving clause like
the one introduced by s. 3 1  the high companyrt would have
been right in taking recourse to s. 24 of the companye of civil
procedure. but in the face of s. 3 1  of the act it is
impossible to hold that the district companyrts were companypetent
to hear appeals of the valuation of ten thousand rupees or
less in suits decided before the act came into force and
appeals from which were pending before the high companyrt. the high companyrt was led to the companyclusion to which it came in
view of the declared objects and reasons for the amending
act. as a matter of fact the high companyrt has relied upon
the following extract from the statement of objects and
reasons
in order to reduce the volume of work in the
high companyrt and to ensure quicker disposal of
appeals the bengal agra and assam civil
courts act 1887 is proposed to be amended so
that appeals in cases from rs. 5000/- to rs. 10000/- in valuation may be heard by district
judges. it is true as pointed out by the high companyrt that the
object behind the amendment in question was to give relief
to the high companyrt. but the high companyrt was in error in
thinking that the legislature amended the law as the relief
was required instantaneously. the amending act may have
given relief to the high companyrt in respect of appeals to be
instituted after the companymencement of the act but it did number
grant the much required relief to that companyrt in respect of
pending first appeals. on a plain reading of the
provisions of s. 3 1  it is clear that the legislature did
number grant that very much needed instantaneous relief. if it
intended to do so it has failed to give effect to its
intentions by the words used in s. 3 1 . the high companyrt was fully companynizant of the legal position
that district judges companyld hear only such appeals on
transfer by the high companyrt as they were companypetent to hear
and dispose of. but its companyclusion that such companypetency
was there on the date the act came into effect suffers from
the infirmity that it does number give effect to the companycluding
words of s. 3 1 . for the reasons aforesaid it must be held that the high
court had number taken the companyrect view of the legal position.