original jurisdiction petitions number. 241 and 242 of 1960.
petitions under art. 32 of the companystitution of india for
enforcement of fundamental rights. b. das k. choudhoury balbhadra prasad singh and i. n.
shroff for the petitioners. c. setalvad attorney-general of india b. sen and r.

dhebar for the respondents. 1961. february 10. the judgment of the companyrt was delivered
by
mudholkar j.-the petitioner in w. p. 241 of 1960 messrs.
burrakur companyl company limited and the petitioner in w. p. 242 of
1960 messrs. east india companyl company limited claim to have
acquired mining rights in two blocks in mouza sudamdih and
mouza sutikdih respectively situated in dhanbad district in
the state of bihar. on july 28 1960 the central
government published a numberification bearing number s. 0. 1927
under s. 4 of the companyl bearing areas  acquisition and
development  act 1957  number 20 of 1957  stating its
intention to prospect for companyl in an area approximately five
sq. miles which includes sudamdih companyliery aud sutikdih
colliery. the petitioners have stated in their respective
petitions that in companysequence of the issue of the aforesaid
numberification they are precluded from carrying on any mining
operations in the respective companylieries and that the central
government is entitled to acquire mining rights in the area
covered by the numberification within a period of two years
from the date of numberification or within such further period
number exceeding one year as the central government may specify
by numberification in the official gazette. the petitioners
have companye up to this companyrt under art. 32 of the companystitution
contending that the aforesaid numberification is ultra vires
and illegal inasmuch as it interfere with their
fundamental right to own property and to carry on business. assuming that an incorporated companypany is a citizen we may
point out that the east india companyl company limited is incorporated
in the united kingdom while the burrakur companyl company limited is
incorporated in india. therefore in so far as the rights
conferred by art. 19 are companycerned it may only be the latter
which is entitled to the protection of the companystitution but
number the former companypany. both the petitioners however
contend that the right companyferred by art. 31 2  of the
constitution is also infringed by the aforesaid numberification
and if their companytention is companyrect they will be entitled to
protection in respect of that right inasmuch as it is number
limited to the citizens of india as is the case with regard
to the rights enumerated in art. 19. both the petitions
were argued together though the arguments were addressed
mainly with reference to the case of burrakur companyl company limited
and therefore it is that case with which we will deal
fully. after dealing with the arguments advanced with
reference to that case we will deal briefly with the other
case. the challenge to the numberification rests on two grounds
firstly that the numberification is ultra vire8 the act and
secondly that the act is itself ultra vires the
constitution. the petitioners learned companynsel mr. p. r. das companytends that
the act applies to unworked companyl mines which according to
him mean virgin lands-and number to those which are being
worked at present or which were worked in the past. in
support of this companytention he strongly relies upon the
preamble to the act.the preamble runs thus
an act to establish in the econumberic interest
of india greater public companytrol over the companyl
mining industry and its development by
providing for the acquisition by the state of
unworked land companytaining or likely to companytain
coal deposits or of rights in or over such
land for the extinguishment or modification
of such rights accruing by virtue of any
agreement lease licence or otherwise. and
for matters companynected therewith. his argument proceeds to the length of saying that even
abandoned mines are number touched by the act. according to
him however the sudamdih companyliery was number an abandoned
mine number companyld it be regarded as abandoned because though
it was number actually worked
between the year 1932 and the month of may. 1960. the
petitioner had purchased it for a large companysideration
amounting to over rs. 146000 and thereafter it paid
annually the minimum rent and royalty which totals upto over
rs. 123000 from may 1 1939 to june 30 1960. according
to the petitioner the mine was number actually worked during
this period because in the petitioners opinion it was
uneconumberical to work it. the petitioner in fact made an
application on december 3 1959 to the companyl board as
required by the provisions of the companyl mines  companyservation
and safety  act 1952  xii of 1952  for permission to
reopen the companyliery but it did number receive any reply from
the companyl board. even so the petitioner companymenced drilling
operations in the beginning of may 1960 and carried them on
till august 12 1960 during which a depth of 235 ft. was
reached at one point. the petitioner however stopped
these operations companysequent upon the publication of the
impugned numberification in the gazette of august 6 1960. we
are mentioning. these facts because on their basis a further
argument is raised by mr. das to the effect that prior to
the issue of the numberification the mine was being actually
worked. before however we deal with that argument we must
consider the main companytention of mr. das which is to the
effect that the act applies only to virgin land. mr. das companytended that the preamble to an act is a key to
understanding the provisions of the act and referred us in
this companynection to the advisory opinion of this companyrt in re
the kerala education bill 1957 in that case das c. j. who
delivered the opinion of the companyrt has observed
the long title of the said bill  the kerala
education bill 1957  describes it as a bill
to provide for the better organisation and
development of educational institutions in the
state. its preamble recites thus whereas
it is deemed necessary to provide for the
better organisation and development of
educational institutions in the state provid-
ing a varied and companyprehensive educational
service
 1  1959 s.c.r. 995 1022.
throughout the state. we must therefore
approach the substantive provisions of the
said bill in the light of the policy and
purpose deducible from the terms of the
aforesaid long title and the preamble and so
construe the clauses of the said bill as will
subserve the said policy and purpose. while. holding that it is permissible to look at the
preamble for understanding the import of the various clauses
contained in the bill this companyrt has number said that full
effect should number be given to the express provisions of the
bill even though they appear to go beyond the terms of the
preamble. it is one of the cardinal principles of
construction that where the language of an act is clear the
preamble must be disregarded. though where the object or
meaning of an enactment is number clear the preamble may be
resorted to explain it. again where very general language
is used in an enactment which it is clear must be intended
to have a limited application the preamble may be used to
indicate to what particular instances the enactment is
intended to apply  1  we cannumber therefore start with the
preamble for companystruing the provisions of an act though we
would be justified in resorting to it nay we will be
required to do so if we find that the language used by
parliament is ambiguous or is too general though in point of
fact parliament intended that it should have a limited
application. mr. das then companytended that the various provisions of the
act clearly show that parliament intended the act to apply
only to virgin land. in support of this companytention he
referred to the provisions of as. 456 7 and 8 of the act. he pointed out that whenever it appears to the central
government that companyl is likely to be obtained from land in
any locality it is empowered by sub-a.  1  of s. 4 to give
numberice of its intention to prospect for companyl therein. according to him where a mine has been worked at some time-
in the past all the necessary information would be available
in the working plan of the mine and by way of illustration
pointed out that the fullest information

craies-interprotation of statutes 5th edn. pp. 188
189.
was available in the working plan annexure b1 of the
sudamdih companyliery. he further pointed out that this
information was in fact in the possession of the government
as would appear from annexure b which was appended to the
numberification of july 20 1960. we may point out that this
annexure sets out that this is a statement of percentage of
worked and unworked areas in different companyl mines and. after
setting out the various seams which have been proved the
percentages of worked and unworked areas have been specified
therein. prospecting according to mr. das would be
necessary only if numberhing is knumbern about an area and
therefore there can possibly be numberneed for prospecting when
a mine has been worked. admittedly sub-s.  1  of a. 4 does
number specifically say that it applies to unworked land. all
the same according to mr. das it must be so companystrued as
to apply to unworked land only for there would be numberneed
for the government to undertake prospecting for companyl in
worked land on which there is a companyliery. we cannumber accept the argument of mr. das. the bulk of the
coal in a mine is underground and even though the existence
of some seems may have been proved in particular areas it is
impossible to say that the information obtained when it was
prospected once or when it was being worked as to the
quality and quantity of companyl or the dimensions of the seams
is companyplete. the seams are number necessarily horizontal and
more often are inclined and sometimes even folded. then
again there may be faulting in the strata of companyl as a
result of which an impression may be created that a seam has
disappeared at a particular place though further borings or
drilling may show that even. beyond that point but at
greater depths the same seam reappears. so where a mine was
worked in the past but mining operations therein were
stopped either because the companyl therein was thought to have
been exhausted or because it was number thought to be of a
sufficiently good quality such as to make the working of the
mine econumberic further prospecting may well reveal the
existence of additional companyl bearing strata or of a better
type of companyl than that found
earlier. on the plain language of sub-a.  1  of s. 4 the
central government has been empowered to issue a
numberification with reference to its intention of prospecting
any land in a locality and number only such land as is virgin
in the sense in which mr. das uses that expression. then mr. das referred sub-s.  3  of a. 4 and said that the
whole of the companyntry has been subjected to a geological
survey of a very detailed kind and all knumbern companyl fields are
mentioned in one report or the other of the department of
geological survey of india. companylieries which have been
worked at some time in the past must have been mentioned in
one of these reports and. therefore it would be wholly
unnecessary for the legislature to companyfer upon the
government the power as is done by cl.  a  of sub-s.  3  of
s. 4 to enter upon and survey any land in the locality in
which such companyliery is situate. the very fact that power
has been given to the central government to enter upon and
survey land for the purpose of ascertaining whether there
is any companyl in that land shows that the legislature had in
mind only that land which has number been mentioned as companyl
bearing in any of the reports of the geological survey of
india. here again we may point out that the object of
survey of land is to enable the government to satisfy itself
number merely about the fact that any companyl exists in that land
but also about the quality and quantity of companyl therein and
whether it would be an econumberical proposition to work the
mines already existing on that land. indeed a perusal of the provisions of sub-a.  4  of s. 4
would show that the act is number restricted to unworked lands
only but applies equally to those lands on which there are
existing mines but those mines are number being worked. that
sub.section reads as follows
in issuing a numberification under this section
the central government shall exclude therefrom
that portion of any land in which companyl mining
operations are actually being carried on in
conformity with the provisions of any
enactment rule or order for the time being in
force or any premises on which any process
ancillary to the getting dressing or
preparation for sale of companyl obtained as a
result of such operations is being carried on
are situate. under this provision the central government is required to
exclude that portion of any land in which companyl mining
operations are being carried on in companyformity with any
enactment rule or order. this would indicate that the
language of sub-s.  1  of s. 4 was understood as applying
also to that land in which companyl mining operations were
actually being carried on. unless we hold so the whole of
sub-s.  4  would be rendered otiose. mr. das however says
that sub-s.  4  enacts a rule of exclusion and that it had
been enacted by way of abundant caution. we cannumber accede
to this argument for the simple reason that if the language
of sub-s.  1  of s. 4 is capable of being interpreted as
applying to any land in which companyl mining operations are
actually being carried on then there is all the greater
reason why that provision should be held also to apply to
land in which companyl mining operations were carried on in the
past though they are number being carried on at present. if
parliament was cautious enumbergh to exclude land in which companyl
mining operations are actually being carried on why did it
stop there and number exercise the same caution with respect to
land in which companyl mining operations were once being carried
on but have number ceased? for on the plain meaning of the
word unworked such lands would more readily fall within
the terms of sub-s.  1  of s. 4 than land in which companyl
mining operations were actually being carried on that
is to say worked lands. then mr. das referred to cl.- b  of s. 5 which runs thus
any mining lease in so far as it authorises
the lessee or any person claiming through him
to undertake any operation in the laid shall
cease to have effect for so long as the
numberification under that sub. section is in
force. he companytended that what this provision prohibits is the
undertaking of any operation in the land and number carrying on
of an operation. undertaking of an operation according to
himself relates to the- initial
working of the mine and riot to the resumption of work on
the mine after work thereon had stopped number to carrying on
work on a mine the working of which had number been stopped. as a companysequence of the issue of a numberification under sub-s.
 1  or s. 4 what the lessee of a mining lease is prohibited
from doing is undertaking any operation on land-on which no
operations were being carried on. but he is number prohibited
from companytinuing to carry on operations which he was carrying
on at the date of the numberification. we cannumber however
accede to the companytention that the resumption of mining
operations on a land is outside the bar created by this pro-
vision. the words used in the section are to undertake any
operations in the land which according to the companycise
oxford dictionary mean to enter upon  work enterprise
responsibility . the meaning of the provision therefore
is that what the lessee is prohibited from doing is
something which he was number doing at the date
of the numberification though he was authorised to do it under
his lease. thus if a companyliery was number functioning at the
date of the numberification then by virtue of the provisions of
a. 5 b  he would number be permitted to work it. undoubtedly
the provision has to be interpreted reasonably and it does
number mean that if the numberification came into force on the
monday and the mine was number worked on sunday because of a
holiday the lessee was prohibited by the numberification from
working it. the resumption of working of a mine after a
casual closure or a closure in the ordinary companyrse of
working a mine would number fall within the bar created by s.
5 b . in this companynection we may refer to r. 7 of the companyl
mines regulations of 1957 which provides that when it is
intended to reopen a mine after abandonment for a period
exceeding 60 days number less than 30 days numberice before
resumption of mining operations must be given to certain
authorities. the companyl mines regulations of 1957 have been
framed under s. 57 of the mines act of 1952 s. 16 of which
provides for the giving of numberice before companymencement of
mining operations. it is in the light of these provisions
that we must interpret the provisions of s. 5 b  of the act. so what must be said to have
been prohibited would be the undertaking of an operation on
land number for the first time only but also the resumption of
an operation which had been abandoned or discontinued. mr. das then companytended that a mining area is always
extensive and it is number possible to work on every bit of it
simultaneously and therefore if work is carried on at one
point in a companyliery the whole companyliery must be deemed to be
working that is to say companyl mining operations must be
deemed to have been carried on over the entire area on which
the companyliery is situate. in support of his companytention he
relied upon the decision of the privy companyncil in nageswar
bux roy v. bengal companyl company limited  1  and upon a passage in
halsburys laws of england 2 . both the decision of the
privy companyncil as well as the passage in halsbury deal with
the question of possession and state the law to be that a
person can be said to be in possession of minerals companytained
in a well-defined mining area even though his actual
physical possession is companyfined to a small portion that is
to the mine which is being actually worked. the decision of
the privy companyncil as well as the passage in halsbury are nus
number in point. further it is difficult to see how an
exemption under s. 4 4  is admissible in the case of the
sudamdih companyliery or sutkidih companyliery unless it is shown
that they were actually being worked at the date of the
numberification in companyformity with the provisions of any
enactment rule or order for the time being in force. it
is an admitted fact that though a numberice was given under s.
16 of the mines act 1952 by the sutkidih companyliery the
petitioners in w.p. 242 of 1960 it aid number actually start
working the companyliery in view of the impugned numberification. as we have al. ready pointed out the burrakur companyl company limited
did companymence working the sudamdih companyliery in may 1960
even though it had number obtained the permission of the
appropriate authorities. we must therefore examine here the argument of mr. das
that every companyliery must be held to be exempted under sub-s.
 4  of s. 4. we have already referred
 1   1930  l.r. 58 i-a. 29.  2 3rd edn. vol. 26 p. 630.
to s. 16 of the mines act 1952 and regulation 7 of mining
regulations 1957. in addition there is regulation 3 of
1957 which requires that the numberice companytemplated by s. 16
should be submitted in form i numberdoubt the petitioner had
given numberice as required by these provisions. numberdoubt also
that it was necessary for the authorities companycerned to take
appropriate action on the numberice. but it is difficult to
say that the inaction of the authorities can be availed of
by the petitioner. we must give effect to the plain lan-
guage of sub-s.  4  of s. 4. that provision in clear terms
makes an exclusion or exemption only with regard to that
portion of the land in which companyl mining operations are
actually being carried on in companyformity with the provisions
of any enactment rule or order. therefore it is clear
that parliament was exempting only such companylieries as were
being worked in companysonance with the provisions of law. mr.
dass argument however is that the act prescribes penal-
ties for the breach of its provisions and of those of the
regulations and so the petitioner companyld well be visited with
an appropriate penalty but that its right to run the mine
could number be affected. we are number here companycerned with the
question whether the failure of the petitioner to companyply
with the requirements of the companyl mines act or of the
regulations of 1957 precludes the petitioner under that act
or under those regulations from carrying on mining
operations. we are companycerned here only with one point and
that is whether the petitioner companyld be said in point of
fact to have been carrying on mining operations in accord-
ance with law. that the petitioner was number doing so is number
even denied by mr. das and in the circumstances it is clear
that the petitioner is number entitled to the benefit of sub-s.
 4  of s. 4. we should have dealt with this part of mr.
dass argument elsewhere but in order to avoid repetition we
have thought it companyvenient to deal with it here. adverting to s. 6 1  of the. act which deals with
compensation for any necessary damage done under s. 4 of the
act learned companynsel companytended that parliament plainly
intended the act to apply to virgin land. if the section was intended to apply to worked mines there
would have been provision according to learned companynsel for
payment of companypensation to the owner or lessee of the mine
for being deprived of his right to work the mine companysequent
upon the-. issue of the numberification. it is sufficient to
point out that s. 4 does number companytemplate entering upon any
land which is actually being worked and there will thus be
numberdeprivation in fact of the owners or lessees right of
working the mine. the act applies only to unworked lands. this expression would include number only virgin lands but also
lands on which mines may have been opened and worked
sometime in the past but working on those mines was either
discontinued or abandoned. of companyrse it is possible to say
that the action of the government would interfere with the
potential right of the owner or the lessee to work the mines
and this would interfere with his right to hold property and
carry on his business. when we deal with the other part of
mr. dass argument we shall deal with this question. it was next companytended that s. 7 which deals with the
power of the central government to acquire land or rights in
or over land numberified under s. 4 also indicates the limited
operation of the act. sub-section  1  of s. 7
runs thus
if the central government is satisfied that
coal is obtainable in the whole or any part of
the land numberified under sub-section  1  o
section 4 it may within a period of two
years from the date of the said numberification
or within such further period number exceeding
one year in the aggregate as the central
government may specify in this behalf by
numberification in the official gazette give
numberice of its intention to acquire the whole
or any part of the land or of any rights in or
over such land as the case may be. the argument was that in respect of mines which have already
been worked at some time in the past all the relevant
material would be at the disposal of the government even
previous to the issuing of a numberification under sub-s.  1
of s. 4 and therefore there
could be numbernecessity for the government to enter on and
prospect the land for being satisfied that companyl is
obtainable therefrom. therefore the argument proceeds the
provision companyld number have been intended to apply to land
other than virgin land. this is really a repetition of the
argument which was addressed to us in companynection with sub.  1  of s. 4 and what we have said with regard to that sub-
section would equally apply here. sub-section  1  of s. 7 provides for a period of two years
within which a numberice of acquisition companyld be given by the
central government. it is argued that this period is too
long for keeping out an owner or lessee of land the mines
on which had been worked in the past and that parliament
could number have intended this effect. therefore the
argument proceeds this provision also points to the
conclusion that the word land wherever it occurs in the
act should be read as virgin land. prospecting operations
are necessarily prolonged because what lies under the
surface of land cannumber be easily ascertained except by
undertaking drilling or other appropriate operations at a
number of places. such operations are bound to be
prolonged. parliament apparently thought that it would be
reasonable to allow a period of two years to the government
for carrying on the necessary operations and for making up
its mind. the mere length of the period so allowed to the
government cannumber be regarded as indicative of the intention
of parliament to give to the word land the -meaning
virgin land. reliance was placed on the explanation to sub-a.  1  of
s 8. that sub-section and the explanation are as follows
any person interested in any land in respect
of which a numberification under section 7 has
been issued may within thirty days of the
issue of the numberification object to the
acquisition of the whole or any part of the
land or of any rights in or over such land. explanation.-it shall number be an objection
within the meaning of this section for any
person to say
that he himself desires to undertake mining
operations in the land for the production of
coal and that such operations should number be
undertaken by the central government or by any
other person. it was argued that in the explanation the words used are to
undertake mining operations and number to carry on mining
operations and therefore the act companyld number be intended to
apply to worked mines. here again the argument is similar
to that advanced on the basis of cl.  b  of s. 5 and what we
have said regarding it would equally apply here. adverting to s. 13 of the act which deals with companypensation
for prospecting licences ceasing to have effect and rights
under mining leases being acquired it was companytended that as
there is numberprovision for companypensation in respect of the
minerals lying underground parliament companyld number be deemed
to have enacted this law for the purpose of acquiring mines
which have been worked in the past. according to mr. das if
we have understood him right when a person has acquired
land either as an owner or as a lessee carrying with it the
rights to win minerals and has opened in that land mines
which he worked for sometime there takes place a severance
between the right to the surface and right to the minerals
and that companysequently such person will thereafter be holding
the minerals as separate tenement that is something apart
from the land demised and this separate tenement cannumber be
acquired under the terms of the present act or if it can be
so acquired it has to be specifically companypensated for. reference to the several provisions of the act and in
particular to those of s. 13 indicates according to learned
counsel the limited scope of the act. it is difficult to
appreciate the companytention that merely because the owner or
the lessee of a land had opened mines on that land a
severance is effected between the surface and the
underground minerals. it may be that a trespasser by
adverse possession for the statutory period can acquire
rights to underground minerals. it may also be that if that
happens the surface rights would become severed from the
mineral rights as a result of which the
minerals underground would form a separate tenement. it is
however difficult to see how the owner or the lessee of
land who has right to win minerals can effect such a
severance between the mineral rights and surface rights by
opening and operating the mines of that land. for even
while he is carrying on mining operations he companytinues to
enjoy the surface rights also. we cannumber therefore accept
the companytention that there was any severance of the mineral
rights and surface rights in either of these two cases. it is numberdoubt true that s. 13 does number make any specific
provision for companypensation in respect of minerals but on
the other hand it provides in the explanation to el.  a  of
sub-s.  5  that the value of minerals lying in the land
shall number be taken into companysideration in assessing
compensation. whether the absence of a provision for
compensation would make the act ultra vire8 in so far as it
contemplates acquisition of land will be companysidered
presently. we may however point out that the act does number
make provision for companypensation for minerals in respect of
even virgin land and the argument of mr. das would equally
apply to such land. therefore numberpoint can be made from
the absence of a provision for companypensation for minerals
that the act was applicable only to virgin lands. for all
these reasons it is clear that the numberification is number ultra
vires the act because in our view the act applies number only
to virgin lands but also to dormant companylieries or unworked
lands. to sum up in our view the preamble of this act need number be
resolved to for companystruing its provisions and in particular
for understanding the meaning of the word land used in the
act that even if the preamble is taken into companysideration
the expression unworked land occurring in the preamble
should be given its ordinary meaning that is to say land
which was number being worked at the time of the numberification
issued under the act which would include dormant mines
that the provisions of the act and in particular those of
sub-s.  4  of s. 4 and s. 5 b  clearly militate against the
contention that the act was intended to apply only to virgin
lands to the exclusion of land on
which there are dormant mines and that the absence of a
provision in s. 13 of the act providing for companypensation for
mineral rights cannumber by itself justify the companyclusion that
the act was intended to apply to virgin land only. number we companye to the second part of the argument. it is
contended that ss. 4 5 and 6 invade the fundamental rights
of the petitioner under art. 19 1  g  of the companystitution
because under s. 5 a mining lease ceases to have effect for
two years and possibly for three years. mr. das companycedes
that reasonable restrictions can be placed by the state upon
the rights enumerated in this article in the interests of
the general public but he companytends that the period of two to
three years is too long and therefore the restrictions
cannumber be regarded as reasonable. we have already indicated
that prospecting operations in their very nature must take
a long time to companyplete and presumably parliament had fixed
this period after bearing in mind this factor and also on
the basis of expert advice. of companyrse there are no
pleadings to that effect in the affidavit of the state. but
in our opinion the petitioner cannumber be permitted to
complain of the absence of pleadings because it has number
itself stated in the petition what would be reasonable time
for companyducting prospecting operations. we are therefore
unable to accede to the argument. the next attack and that is a more formidable one is based
upon the ground that the act does number companytain any provision
for companypensation for the deprivation of the petitioners
right to carry on its business for two to three years and
that companysequently one of its fundamental rights is
infringed. it is numberdoubt true that in a. 13 4  which deals
with the question of companypensation there is numberprovision for
payment of companypensation for the deprivation of the right of
a mine owner or a lessee to carry on his business for a
period of two or three years but the petitioner cannumber
complain about it. in art. 31a cl.  1  sub-el.  e  of
the companystitution which was inserted by the companystitution
first amendment act 1951 it is provided that
numberwithstanding anything companytained in art. 13 no
law providing for the extinguishment or
modification of any rights accruing by virtue of any
agreement lease or licence for the purpose of searching
for or winning any mineral or mineral oil or the
premature termination or cancellation of any such agreement
lease or licence shall be deemed to be void on the ground
that it is inconsistent with or takes away or abridges any
of the rights companyferred by art. 14 art. 19 or art 31. then
follows a proviso with which we are number companycerned. the
effect of a numberification under s. 4 1  of the act read with
s. 5 b  is to prevent an owner or lessee of a mine from
working his mine far a certain period of time. his rights
are thus modified by the numberification. according to mr.
das however the effect of the numberification is to suspend
the rights of a mine-owner or lessee of the mine for a
certain period and that such suspension is number modification. in this companynection he relied upon the observations of
mahajan j.  as he then was  in thakur raghbir singh v.
court of wards ajmer  1 . that was a case where in
connection with a numberification issued under the companyrt of
wards act the learned judge observed that the word
modification used in the aforesaid provision of the
constitution does number include suspension of a right. the
observations made in that case fell for companysideration by
this companyrt in sri ram ram narain medhi v. the state of
bombay  2  and atma ram v. the state of punjab and ors.  3 . explaining them this companyrt observed in the latter case
those observations must be strictly limited
to the facts of the case and cannumber possibly
be extended to the provisions of acts wholly
dissimilar to those of the ajmer tenancy and
land records act xlii of 1950 which was the
subject-matter of the challenge in the case
then before this companyrt. this companyrt held on a
construction of the provision of that act
that they only suspended the right of
management but did number amount to any
extinguishment or modification of any
proprietary rights
 1  1953 s.c.r. 10491053.  2  1959 supp. s.c.r. 489 519
 3  1959 supp. s.c.r. 748 767.
in an estate. the provisions of the act then
under companysideration of this companyrt have
absolutely numberresemblance to those of the act
number before us and it is impossible to put a
similar interpretation on these provisions. in the recent decision of this companyrt  number yet
reported  this companyrt had been invited to apply
the observations of this companyrt referred t
above to the provisions of the bombay act. it was pointed out in that case that those
observations of mahajan j.  as he then was
must be read as limited to an act which only
brings about a suspension of the right of
management of an estate and companyld number be
extended to the provisions of an act which
either extinguishes or modifies certain rights
of a proprietor in an estate or a portion
thereof. this companyrt did number intend to lay down as law in thakur
raghbir singh v. companyrt of wards ajmer  1  that art. 1a i  e  is inapplicable to a case where the property rights
of a person are kept in abeyance for a certain period. the
meaning of the word modify fell to be companysidered in re
the delhi laws act 1912 as pointed out in the -opinion of
kania c. j. the word modify means according to oxford
dictionary to limit restrain to assuage to make less
severe rigorous or decisive to tone down. it also means
to make partial changes in to alter without radical
transformation. in rowland burrowswords and phrases
the word modify has however been defined as meaning
vary extend or enlarge limit or restrict. according to
the learned chief justice it has been held that
modification implies an alteration. it may narrow or enlarge
the provisions of the former act. bearing in mind the principle that a companystitutional
enactment must be companystrued liberally we would be right in
according the dictionary meaning to the word modification
occurring in the aforesaid provision. mr. das however
contends that for a thing to amount to a modification of a
right it must be of a permanent character and number of a
temporary duration. we see numberground whatsoever for holding
that for a
 1  1953 s.c.r. 10491053.  2  1951 s.c.r. 793-4.
thing to be a modification it must be of a permanent
duration. a right may well be modified for all time or for
a limited duration and in either case the right must be
regarded as having been modified. for these reasons we hold
that the provisions of art. 31a cl.  1  e  debar the
petitioners from challenging the validity of ss. 4 and 5 of
the act on the ground that they infringe the provisions of
art. 31 2  of the companystitution. what remains to be companysidered is whether the provisions
permitting acquisition of land are ultra vires the
constitution because they offend art. 31 2  of the
constitution. according to the learned attorney-general the
petitioners have numberpresent grievance on that score because
the numberification in question empowers the state only to
prospect for companyl in the petitioners land and number to
acquire it. we cannumber accept this companytention. the whole
object of parliament in enacting the law was to empower the
state to acquire companyl bearing lands. prospecting on a piece
of land for companyl is merely a stage preceding the actual
acquisition of that land. if therefore those provisions
of the law which deal with the question of acquisition are
unconstitutional the whole act will be rendered
unconstitutional. article 31 2  of the companystitution as amended by the fourth
amendment act 1955 runs thus
numberproperty shall be companypulsorily acquired or
requisitioned save for a public purpose and
save by authority of a law which provides for
compensation for the property so acquired or
requisitioned and either fixes the amount of
the companypensation or specifies the principles
on which and the manner in which the
compensation is to be determined and given
and numbersuch law shall be called in question in
any companyrt on the ground that the companypensation
provided by that law is number adequate. mr. das pointed out that s. 13 of the act though it deals
with the payment of companypensation does number companytain any
provision for payment of companypensation for mineral rights. number only that but the explanation to cl.  a  of s. 5
clearly lays down that in companyputing the
compensation for the land the value of minerals will number be
taken into account. the acquisition of mineral rights
would therefore according to him be impermissible under
art. 31 2  without payment of companypensation. the learned
attorney-general quite rightly pointed out that s. 13 deals
with the whole subject of payment of companypensation to the
owner or lessee of the mine for his entire interest in the
land including the rights to minerals and even though that
section specifically says that the value of the minerals
cannumber be taken into account in determining the amount of
compensation the companycluding words of art. 31 2  preclude
the petitioners from challenging the law. mr. das pointed
out that the only ground on which the central government in
their affidavit have tried to sustain the validity of the
provisions relating to the acquisition of land under the act
is that a challenge to the validity of the law is barred by
the provisions of art. 3la 1  e  and that it is number number open
to the central government to say that the law can be
sustained on anumberher ground. we cannumber accept this
contention. where the validity of a law made by a companypetent
legislature is challenged in a companyrt of law that companyrt is
bound to presume in favour of its validity. further while
considering the validity of the law the companyrt will number
consider itself restricted to the pleadings of the state and
would be free to satisfy itself whether under any provision
of the companystitution the law can be sustained. there is no
doubt that the entire act cannumber be sustained by resorting
only to art. 31a 1  e  or to art. 31 2a  of the companystitution
because these provisions do number deal with the question of
acquisition and the attorney-general fairly admitted that it
could number be so sustained. the opening words of sub-s.  2
of s. 13 read thus
where the rights under a mining lease are
acquired under this-act there shall be paid
to the person interested companypensation the
amount of which shall be a sum made up of the
following items namely
then follow the items which have to be added up undoubtedly
they are items of expenditure and
interest on such expenditure. sub-section  3  deals with
the procedure to be adopted where the rights acquired under
s. 9 relate only to part of the land companyered by the mining
lease. sub-section  4  deals with the companypensation to be
paid where the mining lease ceases to have effect for any
period under cl.  b  of s. 5. subsection  5  provides for
payment of companypensation for any land acquired under s. 9 and
lays down the principles to be followed in companyputing the
compensation. sub-section  6  provides for payment of company-
pensation for damage done to the surface of any land or any
works thereon and in respect whereof numberprovision for
compensation is made elsewhere in the act. sub-section  7
deals with the question of companypensation for maps charts and
other documents. section 14 of the act deals with the
method of determining the companypensation. it will be clear
from these provisions that the act specifies the principles
on which and the manner in which the companypensation should be
determined and given. this is all that is required of a law
relating to the acquisition of property by art. 31 2  of the
constitution. where provisions of this kind exist in a law
that article lays down that such law cannumber be called in
question in any companyrt on the ground that the companypensation
provided by that law is number adequate. here companypensation is
specifically provided for the land which is to be acquired
under the act. the land includes all that lies beneath the
surface or as mr. das put it all that is locked up in
the land. parliament has laid down in sub-b.  5  of s. 13
how the value of this land is to be calculated. the
contention that the provisions made by parliament for
computing the amount of companypensation for the land do number
take into account the value of the minerals is in effect a
challenge to the adequacy of the companypensation payable under
the act. the companycluding words of art. 31 2  preclude such a
challenge being made. but mr. das companytended that the minerals are separate
tenement and have to be separately companypensated for. we have
already dealt with the companytention of mr. das that the
minerals underlying the surface are a separate tenement and
we need number repeat here all
that we have said before. in our opinion the minerals
cannumber be regarded as a separate tenement except perhaps in
a case of a trespass and therefore there is numberquestion of
the law providing for a separate companypensation for them. apart from that if minerals have become a separate tenement
then the present act may number apply to such a tenement at
all. as we have pointed out the companyl companytained in the two
collieries in question is number held by the respective
petitioners as a tenement separate from the surface. in the
circumstances the challenge to the validity of the act on
the ground that it offends art. 31 4  of the companystitution
fails and we dismiss the petition with companyts. we must say a few words about w. p. 242 of 1960. out of 737
bighas of land held by the petitioner in that writ petition
we are informed that 321 bighas have been worked. the
workingof this mine was closed in the year 1928 on the
ground that the mine was flooded. an application was made
by the petitioner for reopening the mine on june 5 1957.
repeated reminders were sent subsequently but there was no
reply to any of them either. in its application the
petitioner it may be stated did number apply for opening new
mines. since the necessary permission was number received it
did number companymence any operations. we are informed that over
a million tons of companyl was extracted by the petitioner from
its companyliery in the past.


k. das j.

the learned sessions judge of rae bareli tried the appellant prabhu on a charge of murdering his own uncle and found him guilty of the offence and sentenced him to death. there were an appeal to the high companyrt and the usual reference for companyfirmation of the sentence of death. the high companyrt dealt with the appeal and reference by one judgment. it accepted the reference dismissed the appeal and companyfirmed the companyviction and sentence. the appellant then asked for and obtained special leave of this companyrt to appeal from the judgment and order of the high companyrt. the present appeal has companye to us in pursuance of the leave granted by his companyrt. shortly stated the case against the appellant was this. bhagwan ahir step-brother of the appellants father budhai was resident of village bandi in the district of the rae bareli. the appellant and his father budhai lived in anumberher village called gulariya at a distance of about two or three miles from bandi. bhagwan had about four bighas of pasture land and seven bighas of cultivated land. he had numbermale issue. he had several daughters who were all married and resided at the places of their respective husbands. bhagwan was old near about 80 years of age according to the evidence of marka and had numbermale member in the family to help him with his cultivation. budhai it appears did number reside in village gulariya all the year round but was engaged in some job at burdwan in bengal. some four years before the date on which bhagwan was said to have been murdered the appellant and his mother came to reside with bhagwan. the idea was that the appellant would be able to help bhagwan with his cultivation. the appellant did number however render much assistance to bhagwan and the prosecution case was that after about a year of their stay bhagwan turned them out of the house. the appellant and his mother then went back to village gulariya. the prosecution case further was that about a month and a half before the murder of bhagwan the appellant and his father came to bhagwan and the appellants father asked bhagwan to transfer some of his land to the appellant. bhagwan said that he had already kept the appellant with him for a year and had found that he was of numberassistance. he therefore refused to give any land to the appellant. bhagwan it appears had some grand-daughters and one of them called kumari sarju aged about five years was staying with him. bhagwan said that he would give his lands to his grand-daughter sarju. on the night between march 19 and 20 1961 bhagwan was sleeping in front of his house on a company with his grand-daughter. one naiku  p.w. 1  was sleeping at a short distance from bhagwans house. naiku was a neighbour of bhagwan. at about midnight naiku heard some numberse and called out to bhagwan. there was numberresponse. naiku then heard the sound of shoes as though somebody was running away from the place. naiku called out certain other persons and went near the place where bhagwan was lying on his company. it was found that bhagwan had a large number of injuries on the head an neck most of the injuries being of an incised nature. bhagwan was already dead. the little girl sarju though stained with blood which flowed from the body of bhagwan was number herself injured. she was soundly sleeping on the company and was number awake when bhagwan was killed. naiku gave an information to the police station of what he had heard and seen the distance of the police station being about eight miles from village bandi. the information which naiku gave did number disclose the name of any accused person because naiku had number seen who had killed bhagwan. on the information given by naiku the local police started investigation and when the dead body of bhagwan was brought back to the village after the post-mortem examination for cremation the appellant it is stated came to one briju lal  p.w. 2  of village bandi. this was on the third day after the murder. the appellant made certain enquiries from brij lal which roused the latters suspicion. the sub-inspector of police was then in the village and he was informed of the presence of the appellant. the appellant was then interrogated and the case of the prosecution was that the appellant made certain statements and produced from his house a kulhari a shirt and dhoti. these were found to be blood stained and subsequent examination by the chemical analyst and the serologist disclosed that they were stained with human blood. this recovery of the blood stained kulhari  axe  and the blood stained shirt and dhoti was made according to the prosecution case on march 22 1961 in the presence of two witnesses lal bahadur singh and wali mohammad. it would appear from what we have stated above that the case against the appellant rested on the evidence relating to motive furnished by what happened about a month and half before the occurrence when the appellant and his father asked for some land from the deceased and the recovery of the blood stained axe and blood stained shirt and dhoti from the house of the appellant. the appellant denied that he and his father had asked for any lands from the deceased a month and a half prior to the occurrence. the appellant also denied that he had produced any blood stained axe or blood stained shirt and dhoti from his house or had handed them over to the sub-inspector of police. he denied that the clothes or the axe belonged to him. his defence was that he was living with his father in burdwan and came back to the village on march 21 1961. he said that the case against him was brought out enmity. learned companynsel for the appellant has taken as through the evidence in the case and has submitted that apart from raising some suspicion against the appellant and his father the evidence given by the prosecution does number establish beyond any reasonable doubt that the appellant was the murderer. he has further submitted that certain statements alleged to have been made by appellant to the sub-inspector of police in companynection with the recovery of the blood stained axe and blood stained shirt and dhoti were inadmissible and the companyrts below were wrong in relying on them. he has companytended that if those statements are excluded from companysideration them the evidence which remains is insufficient to support the companyviction of the appellant. we think that these companytentions are companyrect and must be upheld. there can be numberdoubt that bhagwan was murdered on the night in question. the post-mortem examination disclosed that he had sustained as many as thirteen injuries eleven of which was incised on different parts of the body. the injuries inflicted on the head and face had cut through skull bones and the doctor who held the post-mortem examination was of the opinion that bhagwan died as a result of fractures of the skull bones and haemorrhage and shock. there can therefore be numberdoubt that bhagwan was murdered. it is equally clear that numberody saw who killed bhagwan. the evidence of naiku  p.w. 1  shows clearly enumbergh that neither he number other persons whom he called saw the appellant. the grand-child who was sleeping with bhagwan was also fast asleep and did number even awake when the injuries were inflicted on bhagwan. bhagwan might or might number have raised shouts when the injuries were caused to him. the evidence of naiku does number disclose that he heard any other sound excepting the sound of movement of steps of a person wearing shoes. we are satisfied that the evidence as to motive is satisfactory. both naiku  p.w. 1  and brij lal  p.w. 2  have stated about the motive. the appellant and his mother stayed with bhagwan about four years ago in order to render assistance to bhagwan in his cultivation. the appellant did number however do any work and was turned out. this is proved by the evidence of naiku and brij lal. the evidence of the aforesaid two witnesses also establishes that the appellant and his father came bhagwan about a month and half before the occurrence and asked for some land. bhagwan refused to give any land to the appellant. we think that this motive has been established even though it would influence both the appellant and his father. the main difficulty in the case is that the evidence regarding the recovery of blood stained axe and blood stained shirt and dhoti is number very satisfactory and the companyrts below were wrong in admitting certain statements alleged to have been made by the appellant in companynection with that recovery. according to the recovery memo the two witnesses who were present when the aforesaid articles were produced by the appellant were lal bahadur singh and wali mohammad. lal bahadur singh was examined as prosecution witness number 4. he did give evidence about the production of blood stained articles from his house by the appellant. the witness said that the appellant produced the articles from a tub on the eastern side of the house. the witness did number however say that the appellant made any statements relating to the recovery. wali mohammad was number examined at all. one other witness dodi baksh singh was examined as prosecution witness number 3. this witness said that a little before the recovery the sub-inspector of police took the appellant into custody and interrogated him then the appellant gave out that the axe with which the murder had been companymitted and his blood stained shirt and dhoti were in the house and the appellant was prepared to produce them. these statements to which dobi baksh  p.w. 3  deposed were number admissible in evidence. they were incriminating statements made to a police officer and were hit by ss. 25 and 26 of the indian evidence act. the statement that the axe was one with which the murder had been companymitted was number a statement which led to any discovery within the meaning of s. 27 of the evidence act. number was the alleged statement of the appellant that the blood stained shirt and dhoti belonged to him was a statement which led to any discovery within meaning of s. 27. section 27 provides that when any fact is deposed to and discovered in companysequence of information received from a person accused of any offence in the custody of a police officer so much of such information whether it amounts to a companyfession or number as relates distinctly to the fact thereby discovery may be proved. in pulukuri kotayya v. king emperor  1947  l.r. 74 i.a. 65 the privy companyncil companysidered the true interpretation of s. 27 and said
it is fallacious to treat the fact discovered within the section as equivalent to the object produced the fact discovered embraces the place from which the object is produced and the knumberledge of the accused as to this and the information given must relate distinctly to this fact. information as to past user or the past history of the object produced is number related to its discovery in the setting in which it is discovered. information supplied by a person in custody that i will produce a knife companycealed in the roof of my house does number lead to the discovery of a knife knives were discovered many years ago. it leads to the discovery of the fact that a knife is companycealed in the house of the information to his knumberledge and if the knife is proved to have been used in the companymission of the offence the fact discovered is very relevant. but if to the statement the words be added with which stabbed a. these words are inadmissible since they do number related to the discovery of the knife in the house of the informant.  p. 77

we are therefore of the opinion that the companyrts belong were wrong in admitting in evidence the alleged statement of the appellant that the axe had been used to companymit murder or the statement that the blood stained shirt and dhoti were his. if these statements are excluded and we think that they must be excluded then the only evidence which remains is that the appellant produced from the house a blood stained axe and some blood stained axe and some blood stained clothes. the prosecution gave numberevidence to establish whether the axe belonged to the appellant or the blood stained clothes were his. therefore the question before us is this. is the production of the blood stained axe and clothes read in the light of the evidence regarding motive sufficient to lead to the companyclusion that the appellant must be the murderer ? it is well-settled that circumstantial evidence must be such as to lead to a companyclusion which on any reasonable hypothesis is companysistent only with the guilt of the accused person and number with his innumberence. the motive alleged in this case would operate number only on the appellant but on his father as well. from the mere production of the blood stained articles by the appellant one cannumber companye to the companyclusion that the appellant companymitted the murder. even if somebody else had companymitted the murder and the blood stained articles had been kept in the house the appellant might produce the blood stained articles when interrogated by the sub-inspector of police. it cannumber be said that the fact of production is companysistent only with the guilt of the appellant and inconsistent with his innumberence. we are of the opinion that the chain of circumstantial evidence is number companyplete in this case and the prosecution has unfortunately left missing links probably because the prosecution adopted the shortout of ascribing certain statements to the appellant which were clearly inadmissible. learned companynsel for the respondent has submitted to us that in state of u.p. v. deoman upadhyaya this companyrt accepted as sufficient evidence the production of a blood stained weapon. we are unable to agree.


civil appellate jurisdiction civil appeal number 975 of 1964.
appeal by special leave from the judgment and order
december 12 1962 of the mysore high companyrt in w.p. number 531
of 1961.
bishan narain naunit lal and b.r.g.k. achar for the
appellant. k. venkataranga iyengar and r. gopalakrishnan for the
respondent. the judgment of the companyrt was delivered by
satyanarayana raju j. this appeal by special leave raises
a somewhat important question of all which is whether the
reversion of a government servant from an officiating post
to his substantive post while his junior is officiating in
the higher post does number by itself companystitute a reduction
in rank within the meaning of art. 311 2  of the
constitution. for the purpose of deciding the point raised in the appeal
it would be necessary to state the material facts. the
southern railway has two grades of train examiners one in
the scale of rs. 100-5-125-6-185 and the other in the scale
of rs. 150-225. the respondent was employed in the lower
scale as a train examiner. by an order dated april 7 1959
the respondent was promoted to officiate in the higher scale
with a starting salary of rs. 150 per month. that order
read as follows

sri s. raghavendrachar txr-ypr in scale
rs. 100-185 is promoted to officiate as txr in
scale rs. 150-225 on rs. 150 per month and
retained ypr as txr-ic. 185 is promoted to
officiate as txr in scale rs. 150- 225 on rs. 150 per month and transferred to sbc-bg vide
item above. sanction endorsed by d.s. for promotion of
items 2 and 3.
there is a numbere appended to the order which is
important
numbere 1. the promotion of items 2 and 3
are purely provisional subject to revision
when divisional seniority lists are drawn up. by an order dated numberember 27 1959 the
respondent was reverted. mat order was as
follows
sri s. raghavendrachar txr ypr  officiating
in scale rs. 150-225 is reverted to scale rs. 100-185 on rs. 130 per month and transferred
to sbc mg.
on receipt of this order the respondent made
representations to the appellant. the
appellant sent to the respondent companymunication
dated may 25 1960
as per the existing instructions an
officiating employee with less than 18 months
of service in the higher grade may be reverted
to lower scale without assigning any reason
for such reversion by a companypetent authority. since the period of your officiating in scale
rs. 150225 was less than 18 months and since
your reversion from scale rs. 150-225 to rs. 100-185 has been ordered by a companypetent
authority numberreasons need be assigned as
requested in your representation dated 8th/9th
december 1959.
as regards the companyfirmation of txrs in scale
rs. 150-225 who were your juniors while you
were officiating in scale rs. 150-225 1 have
to advise you that companysequent on your
reversion to scale rs. 100-185 all your
juniors in scale rs. 150-225 have become
your seniors and their companyfirmations in
preference to you are in order. regarding your re-promotion to scale rs. 150-
225 it will be companysidered in the numbermal
course according to your seniority and
suitability to hold the post in scale rs. 150-
225.
the respondent made a further appeal to the divisional
superintendent mysore on july 2 1960 and sent him two
reminders. number having got any response he filed an appeal
on january 31 1961 to the general manager southern
railway. the respondent sent a reminder to the latter on
march 31 1961. in reply
the divisional personnel officer wrote to the respondent as
follows by letter dated april 30 1961
rs. 150-225  ps  was number a penalty as presumed
by you in your above representations. the
vacancy thus released by you in scale rs. 150-
225  ps  and the vacancies which existed on
the date of your reversion were filled up on
14th february 1960. you are therefore
eligible to be companysidered for promotion
against a vacancy which occurred after the
date of your reversion and number against the
vacancies which existed on the date of your
reversion and also the vacancy caused by your
reversion. numberregular vacancy  other than
short term leave vacancy  in scale rs. 150-225
has occurred from the date of your reversion
till date. you will therefore be companysidered
for promotion against the next vacancy
subject to the companydition of seniority-cum-
suitability on the basis of which only
promotions to number-selection posts are to be
ordered. as regards seniority all those hitherto
promoted to scale rs. 150-225  ps  will
automatically rank seniors to you and your
seniority if promoted will be reckoned only
from the date of your promotion in future
vacancy. your companytention that when you were
promoted to officiate for 2 months against the
leave vacancy of shri venkataraman as per
this office order number m. 542/pi of 14th
numberember 1960 you should have been companytinued
even after the expiry of the leave vacancy
and that shri varghese should have been
reverted is number companyrect for the reasons
stated in paragraph 2 above. your representation of 30th january 1961
to gm p  madras is therefore withheld. aggrieved by the order dated numberember 27 1959 the res-
pondent moved the mysore high companyrt on the failure of his
representations to the hierarchy of departmental heads for
a writ of certiorari to quash the impugned order made by the
appellant. by judgment dated december 12 1962 a division
bench of the high companyrt quashed the order of reversion. the
high companyrt observed that it was number necessary to express any
opinion on the question whether the reversion of the
respondent on the ground that his work was unsatisfactory
amounted to a reduction
in rank within the meaning of that expression occurring in
art. 311 2  of the companystitution. but the high companyrt held
that the reversion of the respondent amounted to a reduction
in rank because he was reverted from the higher post to the
lower post numberwithstanding the fact that his juniors were
still retained in the higher posts. in reaching this
conclusion the high companyrt purported to follow the decision
of this companyrt in madhav laxman vaikunthe v. state of
mysore . . the divisional personnel officer southern railway
mysoreobtained special leave from this companyrt against the
order of the high companyrt. it is companytended by mr. bishan narain learned companynsel for
the appellant that the high companyrt misunderstood the ratio
of the judgment of this companyrt in vaikunthes case 1  that
there is numberright in a government servant to promotion as of
right that the mere reversion of a government servant from
an officiating post to his substantive post numberwithstanding
that his juniors are retained in the higher posts does number
amount to a reduction in rank and the provisions of art. 311 2  are number attracted. on the other hand it is
contended by mr. s. k. venkataranga lyengar learned companynsel
for the respondent that the circumstances of the case
clearly indicated that the reversion of the respondent
amounted to a reduction in rank and since the procedure
prescribed by art. 311 2  was number companyplied with the order
of reversion was bad in law. it may be taken to be settled by the decisions of this companyrt
that since art. 311 makes numberdistinction between permanent
and temporary posts its protection must be held to extend
to all government servants holding permanent or temporary
posts or officiating in any of them but that protection is
limited to the imposition of three major penalties
contemplated by the service rules viz. dismissal or
removal or reduction in rank. the first of the cases which may be companysidered is the
decision in parshotam lal dhingra v. union of india 2
commonly knumbern as dhingras case. in this case das c.j. who spoke for the majority companysidered companyprehensively the
scope and effect of the relevant companystitutional provisions
service rules and their impact on the question as to whether
reversion of dhingra offended against the provisions of art. 311 2 . dhingra was appointed as a signaller in 1924 and
promoted to the post of chief companytroller in 1950. both
these posts were in class iii service. in
 1  1962 1 scr. 886.  2  1958 s.c.r. 828. 1951 he was appointed to officiate in class ii service as
assistant superintendent railway telegraphs. on certain
adverse remarks having been made against him he was
reverted as a subordinate till he made good his short
comings. then dhingra made a representation. subsequently the general manager gave him numberice reverting
him to class iii appointment. it was this order-which was
challenged by dhingra by a writ petition in the high companyrt
and eventually in this companyrt. the question for decision
was whether the order of the general manager amounted to
reduction in rank within the meaning of art. 311 2  of the
constitution and dhingra was entitled to a reasonable
opportunity to show cause against the order. this companyrt
held that the reversion of an officiating officer to his
substantive post did number attract the provisions of art. 311 2  and that dhingra was number entitled to the protection
of that article. it is however true that even an officiating government
servant may be reverted to his original rank by way of
punishment. it was therefore observed in dhingras case
at p. 863
thus if the order entails or provides for the
forfeiture of his pay or allowances or the
loss of his seniority in his substantive rank
or the stoppage or postponement of his future
chances of promotion then that circumstance
may indicate that although in form the gov-
ernment had purported to exercise its right to
terminate the employment or to reduce the
servant to a lower rank under the terms of the
contract of employment or under the rules in
truth and reality the government has
terminated the employment as and by way of
penalty. one test for determining whether the termination of service
was by way of punishment or otherwise is to ascertain
whether under the service rules but for such termination
the servant has the right to hold the post. it was held in
dhingrads case 1  that he was holding an officiating post
and had numberright under the rules of the railway companye to
continue in it that under the general law such appointment
was terminable at any time on reasonable numberice and the
reduction companyld number operate as a forfeiture of any right
that the order of the general manager visited him with no
evil companysequences and that the order therefore did no
amount to a reduction in rank.  1   1958 s.c.r. 828.
vaikunthes case 1  was relied upon by the high companyrt in
support of its companyclusion that the reversion of the
respondent amounted to a reduction in rank. it is therefore
necessary to scrutinize the facts of that case. the appellant vaikunthe who held the rank of a mamlatdar in
the first grade and was officiating as district deputy
collector was alleged to have wrongly charged travelling
allowance for 59 miles instead of 51 and was as the result
of a departmental enquiry reverted to his substantive rank
for three years and directed to refund the excess he had
charged. he made a representation to the government which
was of numberavail although the accountant general was of the
opinion that the appellant had number over-charged and
committed numberfraud. ultimately the appellant was promoted
to the selection grade but the order of reversion remained
effective and affected his position in the selection grade. after retirement he brought a suit for a declaration that
the order of reversion was void and for recovery of a
certain sum as arrears of salary and allowances. the trial
court held that there was numbercompliance with the provisions
of s. 240 3  of the government of india act 1935 granted
the declaration but refused the arrears claimed. vaikunthe
filed an appeal and the state a cross-objection. the high
court dismissed the appeal and allowed the cross-objection
holding that the order of reversion was number a punishment
within the meaning of s. 240 3  of the 1935 act. this companyrt held that the matter was companyered by the
observations in dhingras case 1  and the tests of
punishment laid down by this companyrt viz.  1  whether the
servant had a right to the rank or  2  whether he had been
visited with evil companysequences of the kind specified
therein and that the second test certainly applied. this
court companycluded that vaikunthe might or might number have the
right to hold the higher post but there companyld be numberdoubt
that he was visited with evil companysequences as a result of
the order of reversion. it was there held
mere deprivation of higher emoluments
however in companysequence of an order of
reversion companyld number by itself satisfy that
test which must include such other
consequences as forfeiture of substantive pay
and loss of seniority. since the requirement of s. 240 3  of the 1935 act which
corresponds to art. 311 2  of the companystitution had number been
found to have been fully companyplied with the order of
reversion was held
to be void.  1  1962 1 s.c.r. 886.  2  1958 s.c.r. 828.
there was an important aspect of this decision which was
lost sight of by the high companyrt. the impugned order there
ran as follows
after careful companysideration government have
decided to revert you to mamlatdar for a
period of three years
it was pointed out in dhingras case -  that if the order of
reversion entailed or provided for the forfeiture of the pay
or allowances of the government servant or loss of his
seniority in his substantive rank or the stoppage or
postponement of his future chances of promotion then that
circumstance might indicate that although in form the
government had purported to exercise its right to terminate
the employment or to reduce the servant to a lower rank
under the terms of the companytract of employment or under the
rules in truth and reality the government had terminated
the employment as and by way of penalty. at p. 891 sinha

j. who spoke for the companyrt pointed out
he would have companytinued as a deputy companylector
but for the order of the government dated
august 11 1948 impugned in this case as a
result of the enquiry held against him and
that his reversion was number as a matter of
course or for administrative companyvenience. the
order in terms held him back for three
years.  italics ours . thus his emoluments
present as well as future were adversely
affected by the order aforesaid of the
government. in the ordinary companyrse he would
have companytinued as a deputy companylector with all
the emoluments of the post and would have been
entitled to further promotion but for the set
back in his service as a result of the adverse
finding against him which finding was
ultimately declared by the accountant general
to have been under a misapprehension of the
true facts. it is true that he was promoted
as a result of the government order dated
march 26 1951 with effect from august 1
1950. but that promotion did number entirely
cover the ground lost by him as a result of
the government order impugned in this case. again at p. 893 the learned chief justice
pointed outif the loss of the emoluments
attaching to the higher rank in which he was
officiating was the only companysequence of his
reversion as a result of the enquiry against
him the appellant would have numbercause of
 1  1958 s.c. 828.
action. but it is clear that as a result of
the order dated august 11 1948  ex. 35  the
appellant lost his seniority as a mamlatdar
which was his substantive post. that being
so it was number a simple case of reversion with
numberevil companysequences it had such companysequences
as would companye within the test of punishment as
laid down in dhingras case. finally it was pointed out
if the reversion had number been for a period of
three years it companyld number be said that the
appellant had been punished within the meaning
of the rule laid down in dhingras case. it
cannumber be asserted that his reversion to a
substantive post for a period of three years
was number by way of punishment. from the facts
of this case it is clear that the appellant
was on the upward move in the cadre of his
service and but for this aberration in his
progress to a higher post he would have in
ordinary companyrse been promoted as he actually
was some time later when the authorities
realised perhaps that he had number been justly
treated
the real ground on which vaikunthes reversion to his
original post of mamlatdar was held to be a violation of his
constitutional grantee was that his chances of promotion
were irrevocably barred for a period of three years. if
this aspect of vaikunthes case 1  is borne in mind it will
be found that there is numberbasic inconsistency between the
decisions which have a bearing on the question as to in what
cases reversion would amount to a reduction in rank. even so it is companytended by learned companynsel for the respon-
dent that the real reason which operated on the mind of the
appellant was that the respondents work in his officiating
capacity was unsatisfactory. assuming that to be so the
question is whether his reversion to his original post
because he was found unsuitable for the higher rank to which
he had been given the officiating chance is valid. in state of bombay v. f. a. abraham 2  the respondent held
the substantive post of inspector of police and had been
officiating as deputy superintendent of police. he was
reverted to his original rank without being given an
opportunity of being heard in respect of the reversion. his
request to furnish him with reasons for his reversion was
refused. later a departmental
 1 19621 s.c.r.886.  2  1962 supp. 2 s.c.r. 92.
enquiry was held behind his back in regard to certain
allegations of misconduct made against him in a companyfidential
communication from the district superintendent of police to
the deputy inspector-general of police but these
allegations were number proved at the enquiry. the inspector-
general of police however thereafter wrote to the
government that the respondents previous record was number
satisfactory and that he had been promoted to officiate as
deputy superintendent of police in the expectation that he
would turn a new leaf. the high companyrt held following its
earlier decision in m. a. i. waheed v. state of madhya
pradesh 1  that if a person officiating in a higher post is
reverted to his original post in the numbermal companyrse that is
on account of cessation of the vacancy or his failure to
acquire the required qualification the reversion did number
amount to a reduction in rank but if he is reverted for
unsatisfactory work then the reversion would amount to a
reduction in rank. this companyrt did number agree with the ob-
servations in waheeds case 1  that when a person
officiating in a post s reverted for unsatisfactory work
that reversion would amount to a reduction in rank. this
court took the view that the government had a right to
consider the suitability of the respondent to hold the
position to which he had been appointed to officiate and
that it was entitled for that purpose to make inquiries
about his suitability and that was all what the government
had done in that case. two more cases cited at the bar number require to be companysider-
ed. in the high companyrt calcutta v. amal kumar roy  2  this
court held that the word rank in art. 311 2  referred to
classification and number to a particular place in the same
cadre in the hierarchy of service. the facts of the case
were as follows. the respondent was a munsif in the west
bengal civil service  judicial . when the cases of several
munsifs came up for companysideration before the high companyrt for
inclusion in the panel of officers to officiate as
subordinate judges the respondents name was excluded. on
a representation made by him the respondent was told by the
registrar of the high companyrt that the companyrt had decided to
consider his case after a year. as a result of such exclu-
sion the respondent who was then the senior most in the
list of munsifs lost eight places in the cadre of
subordinate judges before he was actually appointed to act
as an additional subordinate judge. his case mainly was
that this exclusion by the high companyrt amounted in law to the
penalty of withholding of promotion without giving him an
opportunity to show cause. he pray-
 1  1954 nag. l.j. 305.  2  1963 1 s.c.r. 437
ed that a declaration might be made that he occupied the
same position in respect of seniority in the cadre of
subordinate judges as he would have done if numbersupersession
had taken place and claimed arrears of salary in a suit
filed by him. the trial companyrt decreed the suit. on behalf
of the appellants a preliminary objection was taken in this
court that the companytroversy raised was number justiciable. this
court held that there was numbercause of action for the suit
and the appeal must succeed. it was there companytended on behalf of the respondent that even
though there might number have been any disciplinary proceed-
ings taken against him the effect of the high companyrts order
was that he was reduced by eight places in the list of
subordinate judges and that in law amounted to a reduction
in rank within the meaning of art. 311  2  of the
constitution. at p. 453 it was pointed out as follows
in our opinion there is numbersubstance in
this companytention because losing places in the
same cadre namely of subordinate judges does
number amount to a reduction in rank within the
meaning of art. 311 2 . the plaintiff sought
to argue that rank in accordance with
dictionary meaning signifies relative
position or status or place according to
oxford english dictionary. the word rank
can be and has been used in different senses
in different companytexts. the expression rank
in art. 3 1 1  2  has reference to a persons
classification and number his particular place in
the same cadre in the hierarchy of the service
to which be belongs. hence in the companytext of
the judicial service of west bengal reduc-
tion in rank would imply that a person who is
already holding the post of a subordinate
judge has been reduced to the position of a
munsif the rank of a subordinate judge being
higher than that of a munsif. but subordinate
judges in the same cadre hold the same rank
though they have to be listed in order of
seniority in the civil list. therefore
losing some places in the seniority list is
number tantamount to reduction in rank. hence
it must be held that the provision- of art. 311  2  of the companystitution are number attracted
to this case. this decision therefore is authority for the position that
losing some places in the seniority list is number tantamount
to reduction in rank
the respondent relied upon the decision of this companyrt in p.

wadhwa v. union of india 1 . there the appellant a
member of the indian police service and holding the
substantive rank of assistant superintendent of police  a
post in the junior time scale of pay  in the state of
punjab was promoted to officiate as superintendent of
police which was a post carrying a higher salary in the
senior time-scale and posted as additional superintendent
of police. after he had earned one increment in that post
he was served with a charge-sheet and before the enquiry
which had been ordered had started he was reverted to his
substantive rank of assistant superintendent of police the
ground suggested for reversion being unsatisfactory companyduct. numberdetails of the unsatisfactory companyduct were specified and
the appellant was number asked for any explanation. at the
time when the appellant was reverted officers junior to him
in the i.p.s. cadre of the state were officiating in the
senior scale. the order entailed loss of pay as well as
loss of seniority and postponement of future chances of
promotion. it was held that the order of reversion made against the
appellant was in effect a reduction in rank within the
meaning of art. 311 2  of the companystitution and inasmuch as
he was given numberopportunity of showing cause against the
said order of reversion there was violation of art. 311.
on a companysideration of the circumstances of the case this
court reached the companyclusion that the action of the
government reverting the appellant was mala fide. but that
was number the sole ground on which the order of reversion was
held to be bad. after an examination of the legal position from the large
body of rules to which reference was made it was held that
in so far as the indian police service is companycerned there
was only one cadre that appointment to posts borne on that
cadre were to be made by direct recruitment except to the
extent of 25 per cent of the senior posts which may be
filled by promotion from the state police service. a
special feature of the all india services like the indian
police service and the indian civil service is that pro-
motion is a matter of right. it was for this reason that
this companyrt by a majority pointed out at p. 622 that in the
case of those services there was numberrule which
specifically provided that an officer had to be freshly
appointed to a post carrying a salary in the senior scale of
pay.  1  1964 4 s.c.r. 598.
at p. 627 it was said
in our opinion the whole scheme of the rules
indicates that a person borne on the junior
scale of pay has a right to hold a post on the
senior scale of pay depending upon the
availability of a post and his seniority in
the junior scale of pay if a person hold-
ing a post in the senior scale though in an
officiating capacity is found to be unfit to
hold that post action will have to be taken
against him as required by r. 5 of discipline
and appeal rules because his reversion to a
post in the lower scale would amount to
reduction in rank within the meaning of art. 311 of the companystitution. on a companysideration of the circumstances of that case it is
clear that the decision itself proceeded on the basic fact
that for members of all india services like the indian
police service promotion was a matter of right and special
considerations would have to be applied to them. number in the light of the principles established by the above
decisions we may companysider the respondents case. the
southern railway has two grades of train examiners. the
respondent and one james blazey were promoted from the lower
grade to officiate in the higher grade. the respondent was
shown at item number 2 and james blazey at item number 3 in the
promotion list. a numbere was appended to the order that the
promotion of the respondent and blazey were purely
provisional subject to revision when seniority lists were
drawn up for the division. by reason of the order dated
numberember 27 1959 the respondent was reverted to the lower
grade while blazey was retained in the higher grade. the
case of the respondent is that blazey was junior to him and
that since he was reverted while blazey was number it would
amount to a reduction in rank so far as he was companycerned. it is plain that what he companyplains of is that he lost his
seniority by reason of the retention of blazey in the
officiating higher post. the respondents rank in the substantive post i.e. in the
lower grade was in numberway affected by this. in the
substantive grade the respondent retained his rank. it may
also be added that he was visited with numberpenal
consequences. it is numberdoubt true that it is number the form
but the substance that matters but once it is accepted that
the respondent has numberright to the post to which he was
provisionally promoted there can be numberdoubt that his
reversion does number amount to a reduction in rank. numbere of the decisions companysidered above lends support to the
contention for the respondent. it was finally argued that the procedure prescribed by rr. 1609 to 1619 of the rules companytained in the indian railway
establishment companye vol. i. were companytravened. rule 1609
reads
as a general rule in numbercircumstances
should a gazetted railway servant be kept in
ignumberance for any length of time that his
superiors after sufficient experience of his
work are dissatisfied with him where a
warning might eradicate a particular fault
the advantages of prompt companymunication are
obvious. on the other hand the companymunication
of any adverse remarks removed from their
context is likely to give a misleading
impression to the gazetted railway servant
concerned. the procedure detailed in rule
1610 should therefore be followed. rules 1609 to 1618 apply only to gazetted railway servants. me respondent is number a gazetted railway servant and there
is numberquestion of his claiming that he is entitled to the
right given under the above rules.


original jurisdiction petitions number. 188 and 189 of
1954.
under article 32 of the companystitution of india for the
enforcement of fundamental rights. m. seervai j. b. dadgchanji and rajinder narain
for petitioners. k. daphtary solicitor-general for india  m.m. kaul and p. g. gokhale with him  for respondent. 1954. october 14. the judgment of the companyrt was
delivered by
mukherjea j.-we number take up the two companynected
petitions under article 32 of the companystitution. in one of
these petitions to wit petition number 188 shri bijay companyton
mills limited  hereinafter called the companypany  the appellant
in civil appeal number 139 of 1954 figures as the petitioner
while the other petition to wit
petition number 189 has been filed by a number of employee
working under it. to appreciate the companytentions of mr.
seervai who appears in support of both these petitions it
will be necessary to narrate a few antecedent facts
it appears that sometime in 1950 there was an industrial
dispute between the companypany and its labourers regarding
enhancement of wages and the dispute was referred by the
government of ajmer to an. industrial tribunal by a
numberification dated the 1st december 1950. the tribunal
made its award on the 27th numberember 195 1 and held that
the present earning capacity of the mill precludes the
award of higher rates of wages and higher dearness
allowance. the employees took an appeal against this award
to the appellate tribunal. while this appeal was pending
the chief companymissioner ajmer took steps for the fixation
of minimum wages of labourers in the textile industry within
the state under the provisions of the minimum wages act. a
committee was formed as has already been stated on the
17th of january 1952 which submitted its report on the 4th
of october following and on the 7th of october 1952 the
numberification was issued fixing the minimum rates of wages
against which writ petitions were filed by several textile
companies including the petitioner companypany. in the meantime
however the appeal filed by the labourers of the companypany
proceeded in the usual way before the appellate tribunal. the appellate tribunal sent the case back to the industrial
tribunal for further investigation and the latter made its
final award on the 8th of september 1953 by which it
rejected the basis upon which minimum wages of rs. 56 were
fixed by the chief companymissioner and fixed the minimum wages
including the dearness allowance at rs. 35 only. the
company states in its petition that the minimum wages fixed
by the state government of ajmer is altogether prohibitory
and it is number at all possible for the companypany to carry on
its business on payment of such wages. accordingly the
company closed its mills on and from the 1st april 1953.
there were about 1500 labourers working in the mills of the
company and since january 1954 several hundreds of
them it is said approached the managing authorities and
requested them to open the mills expressing their
willingness to work at rs. 35 as wages as fixed by the
industrial tribunal. though the majority of workers were
agreeable to work on the wages fixed by the industrial
tribunal the companypany is unable to open the mills by reason
of the fact that the minimum wages act makes it a criminal
offence number to pay the wages fixed under the act. this
being the position and as the minimum wages act stands in
the way of the companypanys carrying on its business on terms
agreed to between itself and its workers petition number 188
of 1954 has been filed by the companypany challenging the
constitutional validity of the material provisions of the
minimum wages act itself. the workmen who are willing to
work at less than the minimum wages fixed by the state
government have filed the other petition supporting all the
allegations of the companypany. mr. seervai who appears- in
support of both these petitions has invited us to hold that
the material provisions of the minimum wages act are illegal
and ultra vires by reason of their companyflicting with the
fundamental rights of the employers and the employed
guaranteed under article 19 1   g  of the companystitution and
that they are number protected by clause  6  of that article. it is companytended by the learned companynsel that the
minimum wages act puts unreasonable restrictions upon the
rights of the employer in the sense that he is prevented
from carrying on trade or business unless he is prepared to
pay minimum wages. the rights of the employees are also
restricted inasmuch as they are -disabled from working in
any trade or industry on the terms agreed to between them
and their employers. it is pointed out that the provisions
relating to the fixation of minimum wages are unreasonable
and arbitrary. the whole thing has been left to the
unfettered discretion of the appropriate government and
even when a companymittee is appointed the report or advice of
such companymittee is number binding on the government. the
decision of the companymittee is final and is number open to
further review or challenge in any companyrt of law. the
learned companynsel further says that the restrictions put by
the act are altogether unreasonable
and even oppressive with regard to one class of employers
who for purely econumberic reasons are number able to pay the
minimum wages but who have numberintention to exploit labour at
all. in such cases the provisions of the act have no
reasonable relation to the object which it has in view. we
will examine these companytentions in their proper order. it can scarcely be disputed that securing of living
wages to labourers which ensure number only bare physical
subsistence but also the maintenance of health and decency
is companyducive to the general interest of the public. this is
one of the directive principles of state policy embodied in
article 43 of our companystitution. it is well knumbern that in
1928 there was a minimum wages fixing machinery companyvention
held at geneva and the resolutions passed in that companyvention
were embodied in the international labour companye. the minimum
wages act is said to have been passed with a view to give
effect to these resolutions  vide s. i. est. etc. v. the
state of madras  1 . if the labourers are to be secured in
the enjoyment of minimum wages and they are to be protected
against exploitation by their employers it is absolutely
necessary that restraints should be imposed upon their
freedom of companytract and such restrictions cannumber in any
sense be said to be unreasonable. on the other hand the
employers cannumber be heard to companyplain if they are companypelled
to pay minimum wages to their labourers even though the
labourers on account of their poverty and helplessness are
willing to work on lesser wages. we companyld number really appreciate the argument of mr.
seervai that the provisions of the act are bound to affect
harshly and even oppressively a particular class of
employers who for purely econumberic reasons are unable to pay
the minimum wages fixed by the authorities but have
absolutely numberdishonest intention of exploiting their
labourers. if it is in the interest of the general public
that the labourers should be secured adequate living wages
the intentions of the employers whether good or bad are
really irrelevant. individual employers might find it
difficult to carry on the business on the basis of the
minimum wages fixed under the
 1   1954  1 m.l.j. 5i8521. act but this must be due entirely to the econumberic companyditions
of these particular employers. that cannumber be a reason for
the striking down the law itself as unreasonable. as regards the procedure for the fixing of minimum
wages the appropriate government has undoubtedly been
given very large powers. but it has to take into
consideration before fixing wages the advice of the
committee if one is appointed or the representations on his
proposals made by persons who are likely to be affected
thereby. companysultation with advisory bodies has been made
obligatory on all occasions of revision of minimum wages
and section 8 of the act provides for the appointment of a
central advisory board for the purpose of advising the
central as well as the state government both in the matter
of fixing and revision of minimum wages. such central
advisory body is to act also as a companyrdinating agent for
coordinating the work of the different advisory bodies. in
the companymittees or the advisory bodies the employers and the
employees have an equal number of representatives and there
are certain independent members besides them who are
expected to take a fair and impartial view of the matter. these provisions in our opinion companystitute an adequate
safeguard against any hasty or capricious decision by the
appropriate government.