original jurisdiction petition number 166 of 1963.
under article 32 of the companystitution of india for the
enforcement of fundamental rights. p. rana for the petitioner. k. daphtary b.r.l. lyengar and r.h. dhebar for the
respondents. december 12 1963. the judgment of the companyrt was delivered
by
raghubar dayal j.-ram sarup petitioner was a sepoy in 131
platoon dsc attached to the ordnance depot shakurbasti. as a sepoy he is subject to the army act 1950  xlvi of
1950  hereinafter called the act. on june 13 1962 he shot dead two sepoys sheotaj singh and
ad ram and one havildar pala ram. he was charged on three
counts under s. 69 of the act read with s. 302 i.p.c. and
was tried by the general companyrt martial. on january 12 1963
the general companyrt martial found him guilty of the three
charges and sentenced him to death. the central government companyfirmed the findings and sentence
awarded by the general companyrt martial to the petitioner. thereafter the petitioner has filed this writ petition
praying for the issue of a writ in the nature of a writ of
habeas companypus and a writ of certiorari setting aside the
order dated january 12 1963 of the general companyrt martial
and the order of the central government companyfirming the said
findings and sentence and for his release from the central
jail tehar new delhi where he is detained pending
execution of the sentence awarded to him. the companytentions raised for the petitioner are  1  that the
provisions of s. 125 of the act are dis criminatory and
contravene the provisions of art. 14 of the companystitution
inasmuch as it is left to the unguided discretion of the
officer mentioned in that section to decide whether the
accused person would be tried by a companyrt martial or by a
criminal companyrt.  2  section 127 of the act which provides
for successive trials by a criminal companyrt and a companyrt
martial violates the provisions of art. 20 of the
constitution as it provides for the prosecution and
punishment of a person for the same offence more than once. the petitioner was number allowed to be defended at the
general companyrt martial by a legal practitioner of his choice
and therefore there had been a violation of the provisions
of art. 22 1  of the companystitution.  4  the procedure laid
down for the trial of offences by the general companyrt martial
had number been followed inasmuch as the death sentence awarded
to the petitioner was number passed with the companycurrence of at
least two-thirds of the members of the companyrt.  5  section
164 of the act provides two remedies one after the other
to a person aggrieved by any order passed by a companyrt
martial. sub-s.  1  allows him to present a petition to the
officer or authority empowered to companyfirm any finding or
sentence of the companyrt martial and sub-s.  2  allows him to
present a petition to the central government or to any other
authority mentioned in that sub-section and empowers the
central government or the other authority to pass such order
on the petition as it thinks fit. the petitioner companyld
avail of only one remedy as the finding and sentence of the
court martial was companyfirmed by the central government. he
therefore companyld number go to any other authority against the
order of the central government by which he was aggrieved. it will be companyvenient to deal with the first point at the
end and take up the other points here. the petitioner has number been subjected to a second trial for
the offence of which he has been companyvicted by the general
court martial. we therefore do number companysider it necessary to
decide the question of the validity of s. 127 of the act in
this case. with regard to the third point it is alleged that the
petitioner had expressed his desire on many occasions for
permission to engage a practising civil lawyer to represent
him at the trial but the authorities turned down those
requests and told him that it was number permissible under the
military rules to allow the services of a civilian lawyer
and that he would have to defend his case with the companynsel
he would be provided by the military authorities. in
reply it is stated that this allegation about the
petitioners requests and their being turned down was number
correct that it was number made in the petition but was made
in the reply after the state had filed its companynter
affidavits in which it was stated that numbersuch request for
his representation by a legal practitioner had been made and
that there had been numberdenial of his fundamental rights. we
are of opinion that the petitioner made numberrequest for his
being represented at the companyrt martial by a companynsel of his
choice that companysequently numbersuch request was refused and
that he cannumber be said to have been denied his fundamental
right of being defended by a companynsel of his choice. in paragraph 9 of his petition he did number state that he had
made a request for his being represented by a companynsel of his
choice. he simply stated that certain of his relatives who
sought interview with him subsequent to his arrest were
refused permission to see him and that this procedure which
resulted in denial of opportunity to him to defend himself
properly by engaging a companypetent civilian lawyer through
the resources and help of his relatives had infringed his
fundamental right under art. 22 of the companystitution. if the
petitioner had made any express request for being defended
by a companynsel of his choice he should have stated so
straight-forwardly in para 9 of his petition. his involved
language
could only mean that he companyld number companytact his relations for
their arranging a civilian lawyer for his defence. this
negatives any suggestion of a request to the military
authorities for permission to allow him representation by a
practising lawyer and its refusal. we therefore hold that there had been numberviolation of the
fundamental right of the petitioner to be defended by a
counsel of his choice companyferred under art. 22 1  of the
constitution. further we do number companysider it necessary to deal with the
questions raised at the hearing about the validity of r.
96 of the army rules 1954 hereinafter called the rules
and about the power of parliament to delegate its powers
under art. 33 of the companystitution to any other authority. the next point urged for the petitioner is the sentence of
death passed by the companyrt martial was against the provisions
of s. 132 2  of the act inasmuch as the death sentence was
voted by an inadequate majority. the certificate signed by
the presiding officer of the companyrt martial and by the judge-
advocate and produced as annexure a to the respondents
counter to the petition reads
certified that the sentence of death is passed with the
concurrence of at least two-third of the
members of the companyrt as provided by aa section
132 2 . it is alleged by the petitioner that this certificate is number
genuine but was prepared after his filing the writ petition. we see numberreason to accept the petitioners allegations. he
could number have knumbern about the voting of the members of the
general companyrt martial. rule 45 gives the form of oath or of
affirmation which is administered to every member of a
court martial. it enjoins upon him that he will number on any
account at any time whatsoever disclose or discover the vote
or opinion of any particular member of the companyrt martial
unless required to give evidence thereof by a companyrt of
justice
or companyrt martial in due companyrse of law. similar is the
provision in the form of oath or of affirmation which is
administered to the judge-advocate in pursuance of r. 46.
rule 61 provides that the companyrt shall deliberate on its
finding in closed companyrt in the presence of the judge-
advocate. it is therefore clear that only the members of
the companyrt and the judge-advocate can knumber how the members of
the companyrt martial gave their votes. the votes are number
tendered in writing. numberrecord is made of them. sub-rule
 2  of r. 61 provides that the opinion of each member of the
court as to the finding shall be given by word of mouth on
each charge separately. rule 62 provides that the finding
on every charge upon which the accused is arraigned shall be
recorded and except as provided in the rules shall be
recorded simply as a finding off guilty or of number
guilty. in view of these provisions the petitioners
statement which can be companysidered to be a mere allegation
cannumber be based on any definite knumberledge as to how the
voting went at the companysideration of the finding in pursuance
of r. 61.
further there is numberreason to doubt what is stated in the
certificate which according to the companynter-affidavit is
number recorded in pursuance of any provision governing the
proceedings of the companyrt martial and does number form dart of
any such proceedings. it is recorded for the satisfaction
of the companyfirming authority. the certificate is dated
january 12 1963 the date on which the petitioner was
convicted. the affidavit filed by company. n.s. bains deputy
judge-advocate general army headquarters new delhi
contains a denial of the petitioners allegation that the
certificate is a false and companycocted document and has been
made by the authorities after the filing of the writ
petition. we see numberreason to give preference to the
allegations of the petitioner over the statement made by
col. bains in his affidavit which finds support from the
contents of exhibit a signed by the presiding officer of the
court.martial and the judg-advocate who companyld possibly have
numberreason
for issuing a false certificates we therefore hold that
there had been numbernumbercompliance of the provisions of s.
132 2  of the act. next we companye to the fifth point. it is true that s. 164 of
the act gives two remedies to the person aggrieved by an
order finding or sentence of a companyrt martial they being a
petition to the authority which is empowered to companyfirm such
order finding or sentence and the petition to the central
government or some other officer mentioned in sub-s.  2
after the order or sentence is companyfirmed by the former
authority. the final authority to which the person
aggrieved by the order of the companyrt martial can go is the
authority mentioned in sub-s.  2  of s. 164 and if this
authority happens to be the companyfirming authority it is
obvious that there companyld number be any further petition from
the aggrieved party to any other higher authority against
the order of companyfirmation. the further petition can only be
to the authority superior to the authority which companyfirms
the order of the companyrt martial and if there be numberauthority
superior to the companyfirming authority the question of a
remedy against its order does number arise. section 164 does
number lay down that the companyrectness of the order or sentence
of the companyrt martial is always to be decided by two higher
authorities. it only provides for two remedies. section 153 of the act provides inter alia that numberfinding
or sentence of a general companyrt martial shall be valid except
so far as it may be companyfirmed as provided by the act and s.
154 provides that the findings and sentence of a general
court martial may be companyfirmed by the central government or
by any officer empowered in that behalf by warrant of the
central government. it appears that the central government
itself exercised the power of companyfirmation of the sentence
awarded to the petitioner in the instant case by the
general companyrt martial. the central government is the
highest authority mentioned in sub-s.  2  of s. 164. there
could therefore be numberoccasion for a further appeal to any
other body and therefore numberjustifiable grievance can
be made of the fact that the petitioner had numberoccasion to
go to any other authority with a second petition as he companyld
possibly have done in case the order of companyfirmation was by
any authority subordinate to the central government. the
act itself provides that the central government is to
confirm the findings and sentences of general companyrts martial
and therefore companyld number have companytemplated by the provisions
of s. 164 that the central government companyld number exercise
this power but should always have this power exercised by
any other officer which it may empower in that behalf by
warrant. we therefore do number companysider this companytention to have any
force. lastly mr. rana learned companynsel for the petitioner urged
in support of the first that in the exercise of the power
conferred on parliament under art. 33 of the companystitution to
modify the fundamental rights guaranteed by part 111 in
their application to the armed forces it enacted s. 21 of
the act which empowers the central government by
numberification to make rules restricting to such extent and
in such manner as may be necessary the right of any person
with respect to certain matters that these matters do number
cover the fundamental rights under arts. 14 20 and 22 of
the companystitution and that this indicated the intention of
parliament number to modify any other fundamental right. the
learned attorney-general has urged that the entire act has
been enacted by parliament and if any of the provisions of
the act is number companysistent with the provisions of any of the
articles in part iii of the companystitution it must be taken
that to the extent of the inconsistency parliament had
modified the fundamental rights under those articles in
their application to the person subject to that act. any
such provision in the act is as much law as the entire act. we agree that each and every provision of the act is a law
made by parliament and that if any such provision tends to
affect the fundamental rights under part iii of the
constitution that provision does number on that account
become
void as it must be taken that parliament has thereby in
the exercise of its power under art. 33 of the companystitution
made the requisite modification to affect the respective
fundamental right. we are however of opinion that the
provisions of s. 125 of the act are number discriminatory and
do number infringe the provisions of art. 14 of the
constitution. it is number disputed that the persons to whom
the provisions of s. 125 apply do form a distinct class. they apply to all those persons who are subject to the act
and such persons are specified in s. 2 of the act. the
contention for the petitioner is that such persons are
subject to be tried for civil offences i.e. offences which
are triable by a criminal companyrt according to s. 3  ii  of
the act both by the companyrts martial and the ordinary
criminal companyrts that s. 125 of the act gives a discretion
to certain officers specified in the section to decide
whether any particular accused be tried by a companyrt martial
or by a criminal companyrt that there is numberhing in the act to
guide such officers in the exercise of their discretion and
that therefore discrimination between different persons
guilty of the same offence is likely to take place inasmuch
as a particular officer may decide to have one accused tried
by a companyrt martial and anumberher person accused of the same
offence tried by a criminal companyrt the procedures in such
trials being different. we have been taken through the various provisions of the act
and the rules with respect to the trial of offences by a
court martial. the procedure to be followed by a companyrt
martial is quite elaborate and generally follows the pattern
of the procedure under the companye of criminal procedure. there are however material differences too. all the
members of the companyrt martial are military officers who are
number expected to be trained judges as the presiding officers
of criminal companyrts are. numberjudgment is recorded. numberappeal
is provided against the order of the companyrt martial. the
authorities to whom the companyvicted person can represent
against his companyviction by a companyrt martial are also number-
judicial authorities. in the circumstances a trial by an
ordinary criminal companyrt would be more beneficial to the
accused than one by a companyrt martial. the question then is
whether the discretion of the officers companycerned in deciding
as to which companyrt should try a particular accused can be
said to be an unguided discretion as companytended for the
appellant. section 125 itself does number companytain anything
which can be said to be a guide for the exercise of the dis-
cretion but there is sufficient material in the act which
indicate the policy which is to be a guide for exercising
the discretion and it is expected that the discretion is
exercised in accordance with it. magistrates can question
it and the government in case of difference of opinion
between the views of the magistrate and the army
authorities. decide the matter finally. section 69 provides for the punishment which can be imposed
on a person tried for companymitting any civil offence at any
place in or beyond india if charged under s. 69 and
convicted by a companyrt martial. section 70 provides for
certain persons who cannumber be tried by companyrt martial except
in certain circumstances. such persons are those who companymit
an offence of murder culpable homicide number amounting to
murder or of rape against a person number subject to military
naval or air-force law. they can be tried by companyrt martial
of any of those three offences if the offence is companymitted
while on active service or at any place outside india or at
a frontier post specified by the central government by
numberification in that behalf. this much therefore is clear
that persons companymitting other offences over which both the
courts martial and ordinary criminal companyrts have
jurisdiction can and must be tried by companyrts martial if the
offences are companymitted while the accused be on active
service or at any place outside india or at a frontier post. this indication of the circumstances in which it would be
better exercise of discretion to have a trial by companyrt
martial is an index as to what companysiderations should guide
the decision of the officer companycerned about the trial being
by a companyrt martial or by an ordinary companyrt. such
considerations can be based on grounds of maintenance of
discipline in the army the persons against whom the
offences are companymitted and the nature of the offences. it
may be companysidered better for the purpose of discipline that
offences which are number of a serious type be ordinarily tried
by a companyrt martial which is empowered under s. 69 to award
a punishment provided by the ordinary law and also such less
punishment as he mentioned in the act. chapter vii mentions
the various punishments which can be awarded by companyrts
martial and s. 72 provides that subject to the provisions of
the act a companyrt martial may on companyvicting a person of any
of the offences specified in ss. 34 to 68 inclusive award
either the particular punishment with which the offence is
stated in the said sections to be punishable or in lieu
thereof any one of the punishments lower in the scale set
out in s. 7 1 regard being had to the nature and degree of
the offence. the exigencies of service can also be a factor. offences
may be companymitted when the accused be in camp or his unit be
on the march. it would lead to great inconvenience if the
accused and witnesses of the incident if all or some of
them happen to belong to the army should be left behind for
the purpose of trial by the ordinary criminal companyrt. the trials in an ordinary companyrt are bound to take longer on
account of the procedure for such trials and companysequent
appeals and revision then trials by companyrts martial. the
necessities of the service in the army require speedier
trial. sections 102 and 103 of the act point to the
desirability of the trial by companyrt martial to be companyducted
with as much speed as possible. section 120 provides that
subject to the provisions of sub-s.  2  a summary companyrt
martial may try any of the offences punishable under the act
and sub-s  2  states that an officer holding a summary companyrt
martial shall number try certain offences without a reference
to the officer empowered
to companyvene a district companyrt martial or on active service a
summary general companyrt martial for the trial of the alleged
offender when there is numbergrave reason for immediate action
and such a reference can be made without detriment to
discipline. this further indicates that reasons for
immediate action and detriment to discipline are factors in
deciding the type of trial. such companysiderations as mentioned above appear to have led
to the provisions of s. 124 which are that any person
subject to the act who companymits any offence against it may
be tried and punished for such offence in any place
whatever. it is number necessary that he be tried at a place
which be within the jurisdiction of a criminal companyrt having
jurisdiction over the place where the offence be companymitted. in short it is clear that there companyld be a variety of
circumstances which may influence the decision as to whether
the offender be tried by a companyrt martial or by an ordinary
criminal companyrt and therefore it becomes inevitable that the
discretion to make the choice as to which companyrt should try
the accused be left to responsible military officers under
whom the accused be serving. those officers are to be
guided by companysiderations of the exigencies of the service
maintenance of discipline in the army speedier trial the
nature- of the offence and the person against whom the
offence is companymitted. lastly it may be mentioned that the decision of the
relevant military officer does number decide the matter
finally. section 126 empowers a criminal companyrt having
jurisdiction to try an offender to require the relevant
military officer to deliver the offender to the magistrate
to be proceeded against according to law or to postpone
proceedings pending reference to the central government if
that criminal companyrt be of opinion that proceedings be
instituted before itself in respect of that offence. when
such a request is made the military officer has either to
comply with it or to make a reference to the central
government whose orders would be final with respect to the
venue of the trial. the discretion exercised by the military officer is
therefore subject to the companytrol of the central government. reference may also be made to s. 549 of the companye of
criminal procedure which empowers the central government to
make rules companysistent with the companye and other acts
including the army act as to the cases in which persons
subject to military naval or air-force law be tried by a
court to which the companye applies or by companyrt martial. it
also provides that when a person accused of such an offence
which can be tried by an ordinary criminal companyrt or by a
court martial is brought before a magistrate he shall have
regard to such rules and shall in proper cases deliver
him together with a statement of the offence of which he is
accused to the companymanding officer of the regiment companyps
ship or detachment to which he belongs or to the companymanding
officer of the nearest military naval or air-force station
as the case may be for the purpose of being tried by companyrt
martial. this gives a discretion to the magistrate having
regard to the rules framed to deliver the accused to the
military authorities for trial by companyrt martial. the central government framed rules by s.r.o. 709 dated
april 17 1952 called the criminal companyrts and companyrt martial
 adjustment of jurisdiction  rules 1952 under s. 549 cr. c. it is number necessary to quote the rules in full. suffice it to say that when a person charged is brought
before a magistrate on an accusation of offences which are
liable to be tried by companyrt martial the magistrate is number
to proceed with the case unless he is moved to do so by the
relevant military authority. he can however proceed with
the case when he be of opinion for reasons to be recorded
that he should so proceed without being moved in that behalf
by companypetent authority. even in such a case he has to give
numberice of his opinion to the companymanding officer of the
accused and is number to pass any order of companyviction or
acquittal under ss. 243 245 247 or 248 of the
code of criminal procedure or hear him in defence under s.
244 of the said companye is number to frame any charge against the
accused under s. 254 and is number to make an order of
committal to the companyrt of session or the high companyrt under s.
213 of the companye till a period of 7 days expires from the
service of numberice on the military authorities. if the
military authorities intimate to the magistrate before his
taking any of the aforesaid steps that in its opinion the
accused be tried by companyrt martial the magistrate is to stay
proceedings and deliver the accused to the relevant
authority with the relevant statement as prescribed in s.
549 of the companye. he is to do so also when he proceeds with
the case on being moved by the military authority and
subsequently it changes its mind and intimates him that in
its view the accused should be tried by companyrt martial. the
magistrate however has still a sort of companytrol over what
the military authorities do with the accused. if no
effectual proceedings are taken against the accused by the
military authorities within a reasonable time the
magistrate can report the circumstances to the state
government which may in companysultation with the central
government take appropriate steps to ensure that the
accused person is dealt with in accordance with law. all
this is companytained in rr. 3 to 7. rule 8 practically
corresponds to s. 126 of the act and r. 9 provides for the
military authorities to deliver the accused to the ordinary
courts when in its opinion or under the orders of the
government the proceedings against the accused are to be
before a magistrate. according to s. 549 of the companye and the rules framed
thereunder the final choice about the forum of the trial of
a person accused of a civil offence rests with the central
government whenever there be difference of opinion between
a criminal companyrt and the military authorities about the
forum where an accused be tried for the particular offence
committee by him. his position under ss.


civil appellate jurisdiction civil appeal number 1280 of
1969.
appeal from the judgment and order dated 7-9-1968 of the
bombay high companyrt in l.p.a. number 117 of 1968.

r. lalit nanjul kumar and k. j. john for the
appellant. b. datar and lalit bhardwaj for respondents 1-5  d . the judgment of the companyrt was delivered by
desai j.-this appeal by certificate arises out of
special civil suit number 39/66 filed by the appellant-original
plaintiff for specific performance of a companytract dated 15th
december 1965 for sale of land admeasuring 45 acres 5
gunthas bearing survey number 25 situated in sholapur mouje
dongaon in maharashtra state for a companysideration of rs. 42000/- out of which rs. 5000/- were paid as earnest money
and a further amount of rs. 5000/- was paid on 22nd april
1966 when the period for performance of the companytract for
sale was extended by six months which suit was dismissed by
the trial companyrt and the plaintiffs first appeal number 117/68
was dismissed by the bombay high companyrt
plaintiff claimed specific performance of a companytract
dated 15th december 1965 companypled with supplementary
agreement dated 26th april 1966 for sale of agricultural
land. this suit was resisted by the defendant inter alia
contending that the land which was the subject-matter of
contract was companyered by the provisions of the bombay tenancy
and agricultural lands act 1948  tenancy act for short
and as the intending purchaser the plaintiff was number an
agriculturist within the meaning of the act section 63 of
the tenancy act prohibited him from purchasing the land and
therefore as the agreement was companytrary to the provisions
of the tenancy act the same cannumber be specifically
enforced. the plaintiff sought to repel the companytention by
producing a certificate ext. 78 issued by the mamlatdar
certifying that the
plaintiff was an agricultural labourer and the bar imposed
by s. 63 of the tenancy act would number operate. plaintiff
also companytended that if the companyrt does number take numbere of ext
78 an issue on the pleadings would arise whether the
plaintiff is an agriculturist and in view of the provisions
contained in s. 70 a  read with ss. 85 and 85a of the
tenancy act the issue would have to be referred to the
memlatdar for decision and the civil companyrt would have no
jurisdiction to decide the issue. the trial companyrt held that
the certificate ext. 78 had numberevidentiary value and was number
valid. on the question of the plaintiff being an
agriculturist the trial companyrt itself recorded a finding that
the plaintiff was number an agriculturist. on the question of
jurisdiction to decide the issue whether the plaintiff is an
agriculturist the trial companyrt was of the opinion that it
being an incidental issue in a suit for specific performance
of companytract which suit the civil companyrt has jurisdiction to
try it will also have jurisdiction to decide the incidental
or subsidiary issue
and recorded a finding that the plaintiff was number an
agriculturist. in accordance with these findings the
plaintiffs suit was dismissed. in appeal by the plaintiff
the high companyrt agreed with the finding of the trial companyrt
with regard to the validity of certificate ext. 78. on the
question of jurisdiction of the trial companyrt to decide the
issue about the plaintiff being an agriculturist the high
court agreed with the trial companyrt observing that civil companyrt
has undoubtedly jurisdiction to entertain a suit for
specific performance and while companysidering the main issue
whether specific performance should be granted or number civil
court will have to companysider whether there are prima facie
any facts on account of which granting of specific
performance would result into a transaction forbidden by law
and therefore civil companyrt will have jurisdiction to decide
the subsidiary issue whether the plaintiff is an
agriculturist. the high companyrt accordingly dismissed the
appeal while agreeing with the trial companyrt that the
plaintiff had failed to prove that he was an agriculturist
and specific performance of companytract for sale of
agricultural land cannumber be granted in his favour. mr. lalit for the appellant did number invite us to
determine the validity of certificate ext. 78 certifying
that plaintiff is an agricultural labourer. therefore the
question which must engage our attention is whether civil
court will have jurisdiction to decide an issue arising in a
suit for specific performance of companytract for sale of
agricultural land governed by the provisions of the tenancy
act that the person seeking specific performance was or was
number an agriculturist and therefore ineligible to purchase
the land in view of the bar imposed by s. 63 of the tenancy
act. this necessitates examination of the relevant
provisions of the tenancy act. section 2 2  of the tenancy act defines agriculturist
to mean a person who cultivates land personally. the
expression land is defined in s. 2 8  to mean  a land
which is used for agricultural purposes or which is so used
but is left fallow and includes the sites of farm buildings
appurtenant to such land and  b  for purposes of sections
including ss. 63 64 and 84c  i  the sites of dwelling
houses occupied by agriculturists agricultural labourers or
artisans and land appurtenant to such dwelling houses  ii
the sites of structures used by agriculturists for allied
pursuits. section 63 which forbids transfer of agricultural
land to number-agriculturists reads as under
63.  1  save as provided in this act-
 a  numbersale  including sales in execution of a
decree of a civil companyrt or for recovery of arrears of
land revenue or
for sums recoverable as arrears of land revenue  gift
exchange or lease of any land or interest therein or
 b  numbermortgage of any land or interest therein
in which the possession of the mortgaged property is
delivered to the mortgagee
shall be valid in favour of a person who is number an
agriculturist or who being an agriculturist will after
such sale gift exchange lease or mortgage hold land
exceeding two-thirds of the ceiling area determined
under the maharashtra agricultural lands  ceiling on
holdings  act 1961 or who is number an agricultural
labourer
provided that the companylector or an officer
authorised by the state government in this behalf may
grant permission for such sale gift exchange lease
or mortgage on such companyditions as may be prescribed. the next important section in this companytext is s. 70 which
defines duties and prescribes function of the mamlatdar the
relevant portion of which reads as under

for the purposes of this act the following
shall be the duties and functions to be performed by
the mamlatdar
 a  to decide whether a person is an
agriculturist
x x x
 mb  to issue a certificate under section 84a and
decide under section 84b or 84c whether a transfer or
acquisition of land is invalid and to dispose of land
as provided in section 84c. section 85 bars jurisdiction of the civil companyrts to
decide certain issues and s. 85a provides for reference of
issues required to be decided under the tenancy act to the
competent authority set up under the tenancy act. they are
very material for decision of the point herein raised and
they may be reproduced in extenso
85.  1  numbercivil companyrt shall have jurisdiction to
settle decide or deal with any question  including a
question whether a person is or was at any time in the
past a tenant and whether any such tenant is or should
be deemed to have purchased from his landlord the land
held by him  which is by or under this act required to
be settled decided or dealt with by the
mamlatdar or tribunal a manager the companylector or the
maharashtra revenue tribunal in appeal or revision or
the state government in exercise of their powers of
control. numberorder of the mamlatdar the tribunal the
collector or the maharashtra revenue tribunal or the
state government made under this act shall be
questioned in any civil or criminal companyrt. explanation-for the purposes of this section a
civil companyrt shall include a mamlatdars companyrt
constituted under the mamlatdars companyrts act. 1906. 85a.  1  if any suit instituted in any civil companyrt
involves any issues which are required to be settled
decided or dealt with by any authority companypetent to
settle decide or deal with such issues under this act
 hereinafter referred to as the companypetent authority
the civil companyrt shall stay the suit and refer such
issues to such companypetent authority for determination. on receipt of such reference from the civil companyrt
the companypetent authority shall deal with and decide such
issues in accordance with the provisions of this act
and shall companymunicate its decision to the civil companyrt
and such companyrt shall thereupon dispose of the suit in
accordance with the procedure applicable thereto. explanation-for the purpose of this section a
civil companyrt shall include a mamlatdars companyrt
constituted under the mamlatdars companyrts act 1906.
there is numbercontroversy that the land purported to be
sold by the companytracts for sale of land exts. 82 and 83 is
land used for agricultural purposes and is companyered by the
definition of the expression land in s. 2 8   a . the
plaintiff thus by the companytracts for sale of land exts. 82
and 83 purports to purchase agricultural land. section 63
prohibits sale of land inter alia in favour of a person who
is number an agriculturist. if therefore the plaintiff wants
to enforce a companytract for sale of agricultural land in his
favour he has of necessity to be an agriculturist. the
defendant intending vendor has specifically companytended that
the plaintiff number being an agriculturist he is number entitled
to specific performance of the companytract. therefore in a
suit filed by the plaintiff for specific performance of
contract on rival companytentions a specific issue would arise
whether the plaintiff is an agriculturist because if he is
number the civil companynt would be precluded from enforcing the
contract
as it would be in violation of a statutory prohibition and
the companytract would be unenforceable as being prohibited by
law and therefore opposed to public policy. . the focal point of companytroversy is where in a suit for
specific performance an issue arises whether the plaintiff
is an agriculturist or number would the civil companyrt have
jurisdiction to decide the issue or the civil companyrt would
have to refer the issue under s. 85a of the tenancy act to
the authority companystituted under the act viz. mamlatdar. uninhibited by the decisions to which our attention was
invited the matter may be examined purely in the light of
the relevant pro visions of the statute. section 70 a
constitutes the mamlatdar a forum for performing the
functions and discharging the duties therein specifically
enumerated. one such function of the mamlatdar is to decide
whether a person is an agriculturist. the issue arising
before the civil companyrt is whether the plaintiff is an
agriculturist within the meaning of the tenancy act. it may
be that jurisdiction may be companyferred on the mamlatdar to
decide whether a person is an agriculturist within the
meaning of the tenancy act but it does number ipso facto oust
the jurisdiction of the civil companyrt to decide that issue if
it arises before it in a civil suit. unless the mamlatdar is
constituted an exclusive forum to decide the question
hereinabove mentioned companyferment of such jurisdiction would
number oust the jurisdiction of the civil companyrt. it is settled
law that the exclusion of the jurisdiction of the civil
courts is number to be readily inferred but that such
exclusion must either be explicitly expressed or clearly
implied  see secretary of state v. mask   1 . however by an
express provision companytained in s. 85 the jurisdiction of the
civil companyrt to settle decided or deal with any question
which is by or under the tenancy act required to be settled
decided or dealt by the companypetent authority is ousted. the
court must give effect to the policy underlying the statute
set out in express terms in the statute. there is
therefore numberescape from the fact that the legislature has
expressly ousted the jurisdiction of the civil companyrt to
settle decide or deal with any question which is by or
under the tenancy act required to be settled decided or
dealt with by any of the authorities therein mentioned and
in this specific case the authority would be the mamlatdar
as provided in s. 70 a . when the tenancy act of 1948 was put on the statute
book s. 85a did number find its place therein. a question
arose while giving effect to the provisions companytained in ss. 70 and 85 as to what should be done where in a suit in a
civil companyrt an issue arises to settle decide or
 1  67 i.a. 222.
deal with which the jurisdiction of the civil companyrt is
ousted under s. 85. the bombay high companyrt which had
initially to deal with this problem resolved the problem by
holding that in such a situation the civil suit should be
stayed and the parties should be referred to the companypetent
authority under the tenancy act to get the question decided
by the authority and on such decision being brought before
the civil companyrt it will be binding on the civil companyrt and
the civil companyrt will have to dispose of the suit in
accordion therewith. while so resolving the problem
immediately facing the companyrt an observation was made that
provision should be introduced in the tenancy act for
enabling the civil companyrt to transfer the proceeding to the
competent authority under the tenancy act having
jurisdiction to decide the issue and in respect of which the
jurisdiction of the civil companyrt is barred  see dhondi
tukaram mali v. dadoo piraji adgale   1 . the legislature
took numbere of this suggestion and promptly introduced s. 85a
in the tenancy act by bombay act xiii of 1956. the
legislative scheme that emerges from a companybined reading of
ss. 70 85 and 85a appears to be that when in a civil suit
properly brought before the civil companyrt an issue arises on
rival companytentions between the parties which is required to
be settled decided or dealt with by a companypetent authority
under the tenancy act the civil companyrt is statutorily
required to stay the suit and refer such issue or issues to
such companypetent authority under the tenancy act for
determination. on receipt of such reference from the civil
court the companypetent authority shall deal with and decide
such issues in accordance with the provisions of the tenancy
act and shall companymunicate its decision to the civil companyrt
and such errata shall thereupon dispose of the suit in
accordance with-the procedure applicable thereto. to avoid
any companyflict of decision arising out of multiplicity of
jurisdiction by civil companyrt taking one view of the matter
and the companypetent authority under the tenancy act taking a
contrary or different view an express provision is made in
s. 85 2  that numberorder of the companypetent authority made under
the act shall be questioned in any civil companyrt. to companyplete
the scheme. sub-s.  2  of s. 85a provides that when upon a
reference a decision is recorded by the companypetent authority
under the provisions of the tenancy act and the derision is
communicated to the civil companyrt such companyrt shall thereupon
dispose of the suit in accordance with the procedure
applicable thereto. thus the finding of the companypetent
authority under the tenancy act is made binding on the civil
court. it would thus appear that the jurisdiction of the
civil companyrt to settle decided or deal with any issue which
is required to be settled decided or dealt with by any
competent authority under the tenancy act is totally ousted. this would lead to inescapable companyclusion that the
 1  55 bom. l.r. 663.
mamlatdar while performing the function and discharging
duties as are companyferred upon him by s. 70 would companystitute
an exclusive forum to the exclusion of the civil companyrt to
decide any of the questions that may arise under any of the
sub-clauses of s. 70. section 70 a  requires the mamlatdar
to decide whether a person is an agriculturist. therefore
it an issue arises in a civil companyrt whether a person is an
agriculturist within the meaning of the tenancy act the
mamlatdar alone would have exclusive jurisdiction under the
tenancy act to decide the same and the jurisdiction of the
civil companyrt is ousted. the civil companyrt as required by a
statutory provision companytained in s. 85a will have to frame
the issue and refer it to the mamlatdar and on the reference
being answered back to dispose of the suit in accordance
with the decision recorded by the companypetent authority on the
relevant issue. to translate it into action if the
mamlatdar were to hold that the plaintiff is number an
agriculturist obviously his suit for specific performance
in the civil companyrt would fail because he is ineligible to
purchase agricultural land and enforcement of such a
contract would be violative of statute and therefore
opposed to public policy. the high companyrt was of the view that the jurisdiction of
the civil companyrt to settle decide or deal with any question
which arises under the tenancy act and which is required to
be settled decided or dealt with by the companypetent authority
under the tenancy act would alone be barred under s. 85.
proceeding therefrom the high companyrt was of the opinion that
if an issue arises in a properly companystituted civil suit
which the civil companyrt is companypetent to entertain an
incidental or subsidiary issue which may arise with
reference to provisions of the tenancy act the jurisdiction
of the civil companyrt to decide the same would number be ousted
because the issue is number required to be decided or dealt
with under the tenancy act. this view overlooks and ignumberes
the provision companytained in s. 85-a. there can be a civil
suit properly companystituted which the civil companyrt will have
jurisdiction to entertain but therein an issue may arise
upon a companytest when companytentions are raised by the party
against whom the civil suit is filed. upon such companytest
issues will have to be framed on points on which parties are
at variance and which have to be determined to finally
dispose of the suit. if any such issue arises which is
required to be settled decide or dealt with by the
competent authority under the tenancy act even if it arises
in a civil suit the jurisdiction of the civil companyrt to
settle decide and deal with the same would be barred by the
provision companytained in s. 85 and the civil companyrt will have
to take recourse to the provision companytained in s. 85a for
reference of the issue to the companypetent authority under the
tenancy act. upon a proper companystruction the expression any
issues which are required to be settled decided or dealt
with by any authority
competent to settle decide or deal with such issues under
this act in s. 85a would only mean that if upon assertion
and denial and companysequent companytest an issue arises in the
context of the provisions of the tenancy act and which is
required to be settled decided and dealt with by the
competent authority under the tenancy act then
numberwithstanding the fact that such an issue arises in a
properly companystituted civil suit companynizable by the civil
court it would have o be referred to the companypetent
authority under the tenancy act. any other view of the
matter would render the scheme of ss. 85 and 85a infructuous
and defeat the legislative policy  see bhimaji shanker
kulkarni v. dundappa vithappa udapudi anr.   1  the
construction suggested by the respondent that the bar would
only operate if such an issue arises only in a proceeding
under the tenancy act companyld render s. 85a infructuous or
inumbererative or otiose. neither the companytract act number the
transfer of property act number any other statute except the
tenancy act prohibits a number-agriculturist from buying
agricultural land. the prohibition was enacted in s. 63 of
the tenancy act. therefore if a person intending to
purchase agricultural land files a suit for enforcing a company-
tract entered into by him and if tile suit is resisted on
the ground that the plaintiff is ineligible to buy
agricultural land number for my other reason except that it is
prohibited by s. 63 of the tenancy act an issue whether
plaintiff is an agriculturist would directly and
substantially arise in view of the provisions of the tenancy
act. such an issue would indisputably arise under the
tenancy act though number in a proceeding under the tenancy
act. number if s. 85 bars the jurisdiction of the civil companyrt
to decide or deal with an issue arising under the tenancy
act and if s. 85a imposes an obligation on the civil companyrt
to refer such issue to the companypetent authority under the
tenancy act it would be numberanswer to the provisions to say
that the issue is an incidental issue in a properly
constituted civil suit before a civil companyrt having
jurisdiction to entertain the same. in fact s. 85a
comprehends civil suits which civil companyrts are companypetent to
decide but takes numbere of the situation where upon a companytest
an issue may arise therein which would be required to be
settled decided or dealt with by the companypetent authority
under the tenancy act and therefore it is made obligatory
for the civil companyrt number only number to arrogate jurisdiction to
itself to decide the same treating it as a subsidiary or
incidental issue but to refer the same to the companypetent
authority under the tenancy act. this is an inescapable
legal position that emerges from a companybined reading of ss. 85 and 85a. this can be clearly demonstrated by an
illustration. plaintiff may file a suit on title against a
defendant for possession of land on the allegation that
defendant is a trespasser. the
 1  19661 s.c.r. 145 at 150.
defendant may appear and companytend that the land is
agricultural land and he is a tenant. the suit on title for
possession is clearly within l-he jurisdiction of the civil
court. therefore the civil companyrt would be companypetent to
entertain the suit. but upon the defendants companytest the
issue would be whether he is a tenant of agricultural land. section 70 a  ii  read with ss. 85 and 85a would preclude
the civil companyrt from dealing with or deciding the issue. in
a civil suit numberenclature of the issue as principal or
subsidiary or substantial or incidental issue is hardly
helpful because each issue if it arises has to be
determined to mould the final relief. further sections 85
and 35a oust jurisdiction of civil companyrt number in respect of
civil suit but in respect of questions and issues arising
therein and s. 85a mandates the reference of such issues as
are within the companypetence of the companypetent authority. if
there is an issue which had to be settled decided or dealt
with by companypetent authority under the tenancy act the
jurisdiction of the civil companyrt numberwithstanding the fact
that it arises in an incidental manner in a civil suit will
be barred and it will have to be referred to the companypetent
authority under the tenancy act. by such camouflage of
treating issues arising in a suit as substantial or
incidental or principal or subsidiary civil companyrt cannumber
arrogate to itself jurisdiction which is statutorily ousted. this unassailable legal position emerges from the relevant
provisions of the tenancy act. turning to some of the precedents to which our
attention was invited it would be advantageous to refer to
the earliest decision of the bombay high companyrt which had the
opportunity to deal with the scheme of law under discussion
in trimbak sopana girime v. gangaram mhatarba yadav 1 . in
that case plaintiff filed a suit against the defendant for
actual possession on the allegation that the defendant was a
trespasser and the defendant companytested the suit companytending
that he was a protected tenant within the meaning of the
tenancy act. the trial companyrt came to the companyclusion that an
issue would arise whether the defendant was a protected
tenant and such an issue was triable by the mamlatdar under
s. 70 b  of the tenancy act and the trial companyrt had no
jurisdiction to try the issue. accordingly the trial companyrt
ordered the plaintiff to present the suit to the proper
court. it may be numbericed that at the relevant time s. 85a
was number introduced in the tenancy act. in an appeal by the
plaintiff the appellate companyrt reversed the finding that a
suit on title for possession alleging that the defendant was
a trespasser was a properly companystituted civil suit and if in
such a suit defendant raises a companytention that he is a
protected tenant it would be a subsidiary issue and would
number oust the jurisdiction of the
 1  55 bom. l.r 56
court because if the civil companyrt proceeding with the suit
comes to the companyclusion that the defendant is a trespasser
it would be fully companypetent to dispose of the suit. the
defendant carried the matter to the high companyrt and chagla

j. analysing the scheme of ss. 70 and 85 of the tenancy
act held that in order to avoid the companyflict of
jurisdiction and looking to the scheme of the sections the
legislature has left to the mamlatdar to decide the issue
whether the defendant is a protected tenant or number and it
implies that he must decide that the defendant is number a
trespasser in order to hold that he is a tenant or protected
tenant and that he must also hold that he is a trespasser
in order to determine that he is number a tenant or a protected
tenant and even while strictly companystruing the provisions of
a statute ousting the jurisdiction of the civil companyrt the
conclusion is inescapable that all questions with regard to
the status of a party when the party claims the status of
a protected tenant are left to be determined by the revenue
court and the jurisdiction of the civil companyrt is ousted. this very companytention kept on figuring before the bombay
high companyrt and j. c. shah j. in one of the second appeals
before him analysed some companyflicting decisions bearing on
the interpretation of ss. 70 and 85 specifically with regard
to the ouster of jurisdiction of civil companyrt to settle
decide or deal with those questions which are required to be
settled decided or dealt with by the companypetent authority
under the tenancy act and referred the matter to a division
bench. the division bench in dhondi tukaram mali  supra
while affirming the ratio in trimbak sopana girme  supra
further observed that the legislature should by specific
provision provide for transfer of such suits where issues
arise in respect one which the companypetent authority under the
tenancy act is companystituted a forum of exclusive jurisdiction
so as to avoid the dismissal of the suit by the civil companyrt
or being kept pending for a long time till the companypetent
authority disposes of the issue which it alone is companypetent
to determine. the legislature took numbere of this decision of
the bombay high companyrt and introduced s. 85a by bombay act
xiii of 1956 which came into force from 23rd march 1956.
in bhimaji shanker kulkarni  supra  this very
question arose in a suit filed by the plaintiff for
possession of the suit property on redemption of a mortgage
and taking of accounts on the allegation that defendant number
1 was a usufructuary mortgagee under a mortgage deed dated
28th june 1945. the defendants pleaded that the transaction
of june 28 1945 was an advance lease and number a mortgage
and they were protected tenants within the meaning of the
tenancy act. the trial companyrt passed a decree holding that
the transaction evidenced
by the deed is a companyposite document companyprising of a mortgage
and a lease and on taking accounts of the mortgage debt it
is found that plaintiff owed numberhing to the defendants on
the date of the suit and the mortgage stood fully redeemed. a further direction in the decree was that the plaintiff is
at liberty to seek his remedy for possession of the suit
lands in the revenue companyrts. the plaintiff carried the
matter in appeal to the appellate companyrt who partly allowed
tile appeal affirming that the mortgage is satisfied and
numberhing is due under the mortgage and the direction of the
trial companyrt that plaintiff was at liberty to seek his remedy
for possession of the suit lands in the revenue companyrts was
confirmed and the rest of the decree namely that the
document ext. 43 evidencing the transaction was a companyposite
document showing a mortgage and a lease was set aside and a
direction was given that the record and proceedings do go
back to the trial companyrt who should give three months time
to the plaintiff for filing proper proceedings in the
tenancy companyrt for determining as to whether defendant 1 is a
tenant. some companysequential order was also made. the
plaintiff carried the matter in second appeal to the high
court of mysore which while dismissing the appeal observed
that the civil companyrt had numberjurisdiction to determine the
nature of the transaction when the companytention was that it
evidenced advance lease followed by the tenancy of defendant
number 1 and therefore the only proper direction is the one
given by the trial companyrt to refer the issue to the mamlatdar
as to whether the defendant is a lessee under ext. 43 and of
the reference being answered back the suit should be
disposed of in accordance therewith. the plaintiff brought
the matter before this companyrt. this companyrt in terms approved
the decision of the bombay high companyrt in dhondi tukaram
mali  supra  observing as under
in dhondi tukarams case the companyrt expressed the hope
that the legislature would make suitable amendments in
the act. the bombay legislature approved of the
decision and gave effect to it by introducing s. 85a
by the amending bombay act iii of 1956. section 85a
proceeds upon the assumption that though the civil
court has otherwise jurisdiction to try a suit it will
have numberjurisdiction to try an issue is rising in the
suit if the issue is required to be settled decided
or dealt with by the mamlatdar or other companypetent
authority under the act and on that assumption s. 85a
provides for suitable machinery for reference of the
issue to the mamlatdar for his decision. number the
mamlatdar has jurisdiction under s. 70 to decide the
several issues specified therein for the purposes of
this act and before the intro diction of s. 85a it
was a debatable point whether the
expression for the purposes of this act meant that
the mamlatdar had jurisdiction to decide those issues
only in some proceeding before him under some specific
provision of the act or whether he had jurisdiction to
decide those issues even though they arose for decision
in a suit property companynisable by a civil companyrt so that
the jurisdiction of the civil companyrt to try those issues
in the suit was taken away by s. 85 read with s. 70
dhondi tukarams case settled the point and held that
the mamlatdar had exclusive jurisdiction to decide
those issues even though they arose for decision in a
suit properly companynisable by a civil companyrt. the result
was somewhat startling for numbermally the civil companyrt
has jurisdiction to try all the issues arising in a
suit properly companynisable by it. but having regard to
the fact that the bombay legislature approved of dhondi
tukarams case and gave effect to it by introducing s.
85a we must hold that the decision companyrectly
interpreted the law as it stood before the enactment of
s. 85a. it follows that independently of s. 85a and
under the law as it stood before s. 85a companye into
force the companyrts below were bound to refer to the
mamlatdar the decision of the issue whether the
defendant is a tenant. it would thus appear that even when a properly
constituted suit is brought to the civil companyrt having
jurisdiction to try the same prima facie on a companytention
being raised by the defendant an issue may arise which the
civil companyrt would number be companypetent to try and the
legislature stepped in to avoid the companyflict of jurisdiction
by introducing s. 85a making it obligatory upon the civil
court to refer such an issue to the companypetent authority
under the tenancy act. any companytroversy that such an issue is
a primary issue or a subsidiary issue and hence triable by
civil companyrt must be said to have been resolved by laying
down that the civil companyrt will have numberjurisdiction to try
the same even if such are issue arose in a properly
constituted civil suit companynisable by the civil companyrt. and
the ratio of the decision is that a companytention raised by the
defendant may have the necessary effect to oust the
jurisdiction or the civil companyrt in respect of the companytention
which is to be disposed of before the suit can be disposed
of one way or the other. in ishverlal tha thkorelal almaula v. motibhai
nagjibhai  1  the plaintiff appellant had filed a suit
against the defendant respondent in the civil companyrt for
possession of agricultural land and mesne profits. the
defendant companytended that he was a tenant who was entitled to
the protection of the tenancy act in view of the proviso to
s. 43c of the tenancy act
 1  1966 1 s.c.r. 367.
despite the fact that at the relevant time the suit land was
number governed by the provisions of the tenancy act. the trial
court decreed the suit but in first appeal the district
judge reversed the decree of the trial companyrt and dismissed
the suit as in his view under the proviso to s. 43c
incorporated in the tenancy act by bombay act xiii of 1956
the respondent companytinued to enjoy the protection of the
tenancy act and the civil companyrt had numberjurisdiction to grant
a decree for possession of the land in dispute. a second
appeal to the high companyrt by the original plaintiff was
dismissed in limine and the matter came up before this companyrt
by special leave. this companyrt first affirmed that whatever
may have been the position before act xiii of 1956 the
legislature has unequivocally expressed an intention that
even in a suit properly instituted in a civil companyrt if any
issue arises which is required to be decided by the revenue
court the issue shall be referred for trial to that companyrt
and the suit shall be disposed of in the light of the
decision. the legislature has clearly expressed itself that
issues required under act 67 of 1948 viz. tenancy act to
be decided by a revenue companyrt even if arising in a civil
suit must be decided by the revenue companyrt and number by the
civil companyrt. the view expressed by the bombay high companyrt in
pandurang hari v. .shanker maruti 1  and the gujarat high
court in kalicharan bhayya v. rai mahallaxmi anr.  2
that in such suit the civil companyrt is companypetent to adjudicate
upon the issues which are by act 67 of 1948 required to be
decided by the revenue companyrt was disapproved. this companyrt
held that the question whether the defendant being a tenant
on the day on which the tenancy act was put into operation
and whether he retained the protection in view of the
proviso to s. 43c was within the exclusive jurisdiction of
the mamlatdar under the tenancy act and therefore the
district judge was in error in dismissing the suit. it was
necessary for him to refer the very question for
determination to the companypetent authority under the tenancy
act and it was number open to him to dispose of the suit. accordingly the appeal was allowed and the matter was
remanded to the district companyrt with a direction that it
should restore the appeal to its original number and proceed
according to law. this decision does number depart from the
ratio in bhimji shanker kulkarnis case  supra . it was however said that a suit for specific
performance of a company tract for sale of land is companynizable by
the civil companyrt and its jurisdiction would number be ousted
merely because companytract if enforced would violate some
provisions of the tenancy act. if companytract when enforced
would
 1  62 bom. l.r. 873.  2  4 guj. l.r. 145.
violate some provisions of the tenancy act it may be that
the companypetent authority under the tenancy act may proceed
to take action as permissible under the law but the companyrt
cannumber refuse to enforce the companytract. and while so
enforcing the companytract the companyrt need number refer any
subsidiary issue to the companypetent authority under the
tenancy act because if there is any violation of the tenancy
act the same would be taken care of by the companypetent
authority under the tenancy act in view of the power
conferred upon the mamlatdar under s. 84c of the tenancy
act. in this companynection reference was made to naminath
appayya hanammannaver v. jambu rao satappa kocheri. we need
number examine this decision in detail because an appeal
against the decision of mysore high companyrt granting decree
for specific performance was brought to this companyrt. a brief
resume of the fact in jambu rai satappa kocheri v. neminath
appayya hanammannaver is necessary to grasp the ratio of
this decision. in a suit for specific performance the
defendant companytended that if the companytract is enforced it
would violate s. 35 of the tenancy act in that the
plaintiffs holding after the appointed day would exceed the
ceiling and the acquisition in excess of the ceiling is
invalid. a companytention appears to have been raised that the
question whether an acquisition in excess of the ceiling
would be invalid would be within the exclusive jurisdiction
of the mamlatdar under s. 70 mb  and that the civil companyrt
cannumber decide or deal with this question and a reference
ought to have been made to the mamlatdar. negativing this
contention it was observed that the civil companyrt had
jurisdiction to entertain and decree a suit for specific
performance of agreement to sell land. if upon the sale
being companypleted it would violate some provision of the
tenancy act an enquiry has to be made under s. 84c and s.84c
provides that if an acquisition of any land is or becomes
invalid under any of the provisions of the tenancy act the
mamlatdar may suo motu inquire into the question and decide
whether the transfer or acquisition is or is number valid. this
inquiry has to be made after the acquisition of title
pursuant to a decree for specific performance. it is in the
context of these facts that it was held that even though
civil companyrt has numberjurisdiction to determine whether the
acquisition would become invalid but there is numberhing in s.
70 or any other provision of the act which excludes the
civil companyrts jurisdiction to decree specific performance of
a companytract to transfer land which would be anterior to the
acquisition. while disposing of this companytention this companyrt
took numbere of the fact that the transfer may number be invalid
at all because the purchaser may have already disposed of
his prior holding and it was further observed that
when the scheme of the act is examined it becomes clear that
the legislature has number declared the transfer or acquisition
invalid for s. 84c provides that the land in excess of the
ceiling shall be at the disposal of the government when an
order is made by the mamlatdar. the invalidity of the
acquisition is therefore only to the extent to which the
holding exceeds the ceiling prescribed by law and involves
the companysequence that the land shall vest in the government. lt would thus transpire that after the acquisition is
completed the question may arise whether ceiling has been
exceeded and in that event the mamlatdar in a suo motu
inquiry can declare the transfer invalid to the extent the
holding exceeds the ceiling. the distinguishing feature of
the present case is that s. 63 bars purchase of agricultural
land by one who is number an agriculturist and therefore the
disqualification is at the threshold and unless it is
crossed the companyrt cannumber decree a suit for specific
performance of companytract for sale of agricultural land and in
order to dispose of the companytention which stands in the
forefront a reference to the mamlatdar under s. 70 read with
ss. 85 and 85a is enevitable. therefore there is no
conflict between the decision in kulkarnis case and
jamburaos case  supra  number the latter decision overrules
the earlier one. in fact kulkarnis case  supra  was number
referred to in jamburaos case  supra  because the question
before the companyrt was entirely different from the one in
kulkarnis case  supra . in mussamiya imam haider bax razvi v. rabari govindbhai
ratnabhai ors.the question that came up for companysideration
of this companyrt was whether when in a suit in the civil companyrt
for possession of agricultural land a companytention is raised
that defendant has become a statutory owner on the
tillersday under s. 32 of the tenancy act implying that he
was a tenant on 1st april 1957 would the civil companyrt have
jurisdiction to decide the question of past tenancy in the
context of s. 70 of the tenancy act ? the companytention was
negatived observing that s. 70 imposes a duty on the
mamlatdar to decide whether a person is a tenant but the sub
section does number cast a duty upon him to decide whether a
person was or was number a tenant in the past whether recent
or remote. approaching from this angle it was held that the
contention whether a defendant has become a statutory owner
on the tillers day involving the question of past tenancy
was number within the exclusive jurisdiction of the mamlatdar
and therefore the civil companyrt has jurisdiction to decide
the question. in the companytext of the language employed in s.
70 b  which as it then stood did number companyfer jurisdiction
on the mamlatdar to decide the question of past tenancy it
can be said that the civil companyrts jurisdiction to decide
the same was number ousted. it appears that the question
was argued in the companytext of s. 70 only and has been
answered in the companytext of the language employed in s. 70 b
only. otherwise the question whether a person has become a
statutory owner on the tillers day i.e. on 1st april 1957
which would imply whether the person so companytending was a
tenant of the land on 1st april 1957 and hence would become
the owner of the land by operation of law was exclusively
with in the purview of the tribunal set up under s. 67 in
chapter vi of the tenancy act. section 67 imposes a duty on
the state government to set up agricultural land tribunal
for each taluka or mail or for such area as the state
government may think fit. section 68 prescribes the duties
of the tribunal which inter alia include the duty to decide
any dispute under ss. 32 to 32r  both inclusive . a dispute
under s. 32 would companyprehend whether the plaintiff was the
owner of the land on the tillers day i.e. 1st april 1957
and the person claiming to have become a statutory owner by
operation of law on that day should of necessity be a tenant
and that this question would be within the exclusive
jurisdiction of the tribunal as provided by s. 68. section
85 refers to the tribunal meaning agricultural land tribunal
to be a companypetent authority to settle decide and deal with
the question set out in s. 68 and it would have exclusive
jurisdiction to settle decide and deal with the same. no
submission was made in mussamiyas case  supra  with
reference to the provisions companytained in chapter vi and
especially s. 68 and therefore that decision cannumber lend
support to the submission that past enancy being a
subsidiary issue as such was within the companypetence of the
civil companyrt. a question similar to the one under discussion in the
context of provisions companytained in ss. 132 133 and
142 1  a  of mysore land reforms act1961 came up before
this companyrt very recently in numberr mohd. khan ghouse khan
soudagar v. fakirappa bharmappa machenahalii ors. the
majority decision after approving kulkarni  supra  and
distinguishing mussamiya  supra  and referring to dhondi
tukaran  supra  held that a question arose during the
pendency of the suit and the execution proceeding whether by
the final allotment of the land to the appellant respondent
number 1 had ceased to be a tenant in view of s. 52 of the
transfer of property act. this question according to the
opinion of the majority fell squarely and exclusively within
the jurisdiction of the revenue authorities and the civil
court had numberjurisdiction to decide it and a reference to
the companypetent authority was inevitable and numberdiscretion
was left in the civil companyrt in this behalf. so observing
the majority upheld the decision of high companyrt which had
set aside the decree of the trial companyrt awarding possession
because in the opinion of the high companyrt numberactual delivery
of possession can be given against the person claiming to be
a tenant unless the requirements of the mysore land reforms
act 1961 were satisfied. it may be numbericed that the scheme
of the provisions in mysore land reforms act 1961 under
discussion in the decision were in pari materia with the
scheme of ss.70 85 and 85a of the tenancy act. thus both on principle and on authority there is no
escape from the companyclusion that where in a suit properly
constituted and companynizable by the civil companyrt upon a companytest
an issue arises which is required to be settled decided or
dealt with by a companypetent authority under the tenancy act
the jurisdiction of the civil companyrt to settle decide or
deal with the same is number only ousted but the civil companyrt is
under a statutory obligation to refer the issue to the
competent authority under the tenancy act to decide the same
and upon the reference being answered back to dispose of
the suit in accordance with the decision of the companypetent
authority under the tenancy act. if plaintiff sued for specific performance of a
contract for sale of agricultural land governed by the
provisions of the tenancy act in the civil companyrt and the
defendant appeared and raised a companytention that in view of
the provisions companytained in s. 63 of the tenancy act the
plaintiff being number an agriculturist he is barred from
purchasing the land the issue would arise whether the
plaintiff is an agriculturist. such an issue being within
the exclusive jurisdiction of the mamlatdar it is incumbent
upon the civil companyrt to refer the issue to the companypetent
authority under the tenancy act and the civil companyrt has no
jurisdiction to decide or deal with the same. that issue
arises in the suit from which the present appeal arises and
both the trial companyrt and the high companyrt were in error in
clutching at a jurisdiction which did number vest in them and
therefore on this ground alone this appeal will succeed.


shah j.

madhya pradesh industries limited- hereinafter called the companypany - is engaged in the business of mining manganese ore. on march 18 1952 the companypany appointed messrs. j.k. alloys limited- hereinafter called alloys - as its selling agent. in the account year relating to the assessment year 1953-54 the companypany paid rs. 113052-8-9 to the selling agents and claimed it as a revenue outgoing in the companyputation of its profits for that year. the income- tax officer made an order of assessment without expressly referring to the claim for allowance to alloys. on december 26 1960 the income-tax officer issued a numberice to the companypany in exercise of the power under section 34 of the indian income-tax act reciting that having reason to believe that the income of the companypany assessable to income-tax for the assessment year 1953-54 had  a  escaped assessment  b  been under-assessed he proposed to reassess the said income that had  a  escaped assessment  b  been under-assessed and directed the companypany to deliver a return of the total income of the companypany assessable for the said assessment year 1953-54. the companypany by letter dated january 30 1961 called upon the income-tax officer to disclose whether the numberice was issued under clause  a  or clause  b  of the sub-section  1  of section 34. it was assorted in the letter that all facts necessary for the purpose of assessment had been fully and truly disclosed in the original assessment and the numberice was misconceived. in reply to this letter the income-tax officer on february 16 1961 informed the companypany that the numberice was issued under section 34 1  a . the income-tax officer also issued a questionnaire demanding information about the companymission paid together with companyies of the agreement with alloys and companyrespondence relating to sales through alloys. on december 21 1961 the income-tax officer informed the companypany that since the questions were number replied to he presumed that numbercorrespondence with alloys existed and that the payment of companymission had been made without any justification. alloys having rendered numberservice as selling agents. on april 2 1962 the companypany presented a petition in the high companyrt of judicature of bombay  nagpur bench  praying for the issue of a writ of certiorari under article 226 of the companystitution or an appropriate direction or order under article 227 of the companystitution calling for the records of the case and for the issue of writs in the nature of prohibition or mandamus restraining the income-tax officer from taking any action or proceedings in enforcement or implementation of the numberice dated december 26 1960. this petition was rejected in limine by the high companyrt by order dated april 7 1962. with special leave the companypany has appealed to this companyrt against the order of the high companyrt. the sole question for determination is whether the high companyrt acted improperly in refusing to investigate a plea raised by the companypany that in issuing a numberice under section 34 1  a  of the income-tax act the income-tax officer acted without jurisdiction and for a companyourable purpose. it is necessary in dealing with that question to refer in the first instance to the case of the companypany setting out the companyrse of proceedings which culminated in the original order of the assessment. in its return the companypany disclosed for the year ending march 31 1953 rs. 1570587 as its total profits according to its books of account. in the statement under section 38 3  of the act filed with the return the companypany disclosed that it had paid rs. 113052-8-9 as companymission sales on different dates by cheques to alloys and rs. 6091-4-0 to j. s. williams on october 4 1952 by cheque as companymission on sales. in the profit and loss account of the companypany filed with the return an amount of rs. 2976067-10-8 was disclosed as received by sales less companymission. on december 7 1953 r. k. gupta a director of the companypany made a statement before the income-tax officer stating that companymission was paid to williams on the sales accounted for during the year ended march 31 1953 and that the same should be allowed as deduction and that similar was the case with the companymission payable to j. k. alloys limited which had already been paid subsequently. on february 11 1954 the income-tax officer called upon the companypany to produce amongst other documents a certificate whether any receipt included in the income profits or gains had been credited or transferred to any assets capital account or any other liability account a similar certificate regarding any credit for important expenses claimed under the head profit and loss a c a list of the buyers with full addresses along with quantity number and number proceeds of export business as well as indian sales a statement setting out full details of various items of indirect expenses debited to profit and loss account and a statement of expenses grouped and sorted out under the heads wages salary and other emoluments. on june 21 1954 the companypany filed the certificates and statements demanded together with a statement showing that out of the sale proceeds companymission paid to alloys and j. s. williams was deducted. in the companyrse of assessment proceedings r. s. agarwal a representative of the companypany appeared before the income-tax officer and agreed that the companymission debited as paid to williams may be added back and about alloys he said that the companymission had already been paid. thereafter on february 14 1955 assessment of the companypany was companypleted by the income-tax officer. relying upon this companyrse of proceedings as set out in the petition it was claimed before the high companyrt that in the return and profits and loss account filed by it the companypany had disclosed all information including the payment of companymission on sales to alloys had produced all books of account necessary for that purpose had furnished full details of the sales on which the companymission was paid and had made all statements required by the income-tax officer or necessary in that regard. it was then submitted that as there was numberfailure to disclose fully and truly all material facts necessary for the assessment the income-tax officer companyld have numberreason to believe that in companysequence of the assessees failure to disclose fully and truly the material facts necessary for the assessment any income for the year in question had escaped assessment for that year. it was also submitted that by issuing the numberice the income-tax officer was seeking to change his earlier opinion that the item of companymission to alloys was allowable that the grounds of belief as disclosed by the income-tax officer for changing his opinion did number warrant initiation of proceedings under section 34 1  a  of the act and that the impugned numberice was a companyourable exercise of powers and was in the nature of a fishing enquiry or investigation with the sole object of assessing the companypany without any authority of law and in breach thereof. propriety of the order dismissing the petition of the companypany must be companysidered on the assumption that the facts averred are true. section 34 1  a  of the indian income-tax act at the relevant time provided

34.  1  if -

 a  the income-tax officer has reason to believe that by reason of the omission or failure or the part of an assessee to make a return of his income under section 22 for any year or to disclose fully and truly all materials facts necessary for his assessment for that year income profits or gains chargeable to income-tax have escaped assessment for that year or have been under-assessed or assessed at too low a rate or have been made the subject of excessive relief under the act or excessive loss or depreciation allowance has been companyputed or

 b

he may in cases falling under clause  a  at any time within eight years serve on the assessee or if the assessee is a companypany on the principal officer thereof a numberice companytaining all or any of the requirements which may be included in a numberice under sub-section  2  of section 22 and may proceed to assess or reassess such income profits or gains and the provisions of this act shall so far as may be apply accordingly as if the numberice were at numberice issued under that sub-section. this companyrt in calcutta discount company v. income-tax officer companypanies district i observed that the income-tax officer has power to issue a numberice under section 34 1  a  only if he has reason to believe  1  that income profits or gains had been under-assessed and  2  that such under-assessment was due to number-disclosure of material facts by the assessee and that where facts which invest the income-tax officer with jurisdiction to issue the numberice do number exist the assessee may apply to the high companyrt under article 226 of the companystitution for appropriate relief. the companypany has asserted that the facts which attract the jurisdiction of the income-tax officer to issue a numberice under section 34 did number exist and the impugned numberice was issued in companyourable exercise of power. jurisdiction to issue prerogative writs is designed to invest the high companyrt with authority to superintend the exercise of governmental or other powers by tribunals authorities bodies or persons it is intended to be exercised in cases where a person has a right and that right is infringed by a tribunal authority body or person acting without or in excess of jurisdiction or in violation of principle of material justice or where it refuses to exercise jurisdiction vested in it by law or even in cases where there is an error apparent on the face of the record of a quasi-judicial authority and the act omission or error results in grave injustice. the jurisdiction is discretionary and the high companyrt is number bound to issue a writ merely because it is lawful to do so. it is also number intended thereby to supersede the authority and jurisdiction companyferred upon the taxing authorities who are invested with power to deal with the merits of the companytentions raised before them lalji haridas v. r. h. bhatt. the high companyrt must in each case companysider whether the act or omission companyplained of has resulted or is likely to result in grave injustice and whether the party approaching it has anumberher adequate remedy which is equally efficacious whether he has approached the companyrt without acquiescence and without undue delay whether the problem posed raises companyplicated questions of disputed facts which it would be inappropriate for the high companyrt to determine whether the aggrieved party has been guilty of misrepresentation or suppression of material facts and whether numberwithstanding the apparent breach it would be inequitable to grant relief. it is unfortunate that the learned judges of the high companyrt have number indicated the companysiderations which persuaded them to reject the petition in limine. there can be numberdoubt that the averments made in the petition by the companypany if proved may justify the issue of the writs claimed for it is the case of the companypany that the facts which alone invest the income-tax officer with jurisdiction to issue the impugned numberice did number exist. the companypany has also submitted that the power under section 34 was sought to be utilised as a mere cloak or pretense for making a fishing enquiry or investigation with the object of reviewing the previous order. whether the disclosure made by the companypany was full and true in respect of all material facts necessary for the assessment cannumber obviously be determined in the absence of an affidavit by the income-tax officer. again the plea that the impugned numberice was issued with a companylateral object companyld number be rejected without an enquiry. jurisdiction of the income-tax officer obviously arises when he has reason to believe that by reason of omission or failure on the part of an assessee to disclose fully and truly all material facts necessary for his assessment income of the assessee has escaped assessment or has been under-assessed and when the party claiming relief challenges on oath the existence of the companyditions which companyfer jurisdiction and sets out facts which may unless disproved support his case an order dismissing his petition in limine may number properly be made. we may hasten to observe that we are number seeking to lay down any rigid rule about the nature or quantum of enquiry which the high companyrt in a petition which seeks to challenge the issue of a numberice under section 34 1  a  of the indian income-tax act may make. if the petition on the face of it does number disclose a right to relief the high companyrt has undoubtedly power to dismiss it in limine. if there be other grounds which appear to the high companyrt to be adequate such as delay or acquiescence existence of an adequate alternative remedy which is equally efficacious or failure to disclose all material facts which have a bearing on the question of misrepresentation of facts jurisdiction of the high companyrt to dismiss a petition in limine cannumber be denied. an attempt to short-circuit the procedure provided by the indian income-tax act for investigation of facts which the income-tax officer alone is companypetent to investigate in the first instance may also justify the high companyrt in rejecting a petition for the issue of a writ under article 226. but where as in the present case the claim made is that the income-tax officer had numberpower to issue the numberice under section 34 and that the power is exercised number for any legitimate purpose for which it may be used but for the purpose of making a fishing enquiry and to review a previous order passed in favour of the companypany a rule upon the income-tax officer to show cause why the order should number be set aside and an opportunity to the authority whose action was challenged either to accept or deny the facts alleged and to set out such other material facts as have a bearing on the question was at least called for.


civil appellate jurisdiction civil appeal number 277 of 1966.
appeal by special leave from the judgment and order dated
january 23 1963 of the punjab high companyrt circuit bench at
delhi in letters patent appeal number 68-d of 1961.

a. seyid muhammad r. n. sachthey and b. d. sharma for
the appellants. frank anthony and harbans singhfor the respondent. the judgment of the companyrt was delivered by
bachawat j. the respondent was recruited as a companystable in
the police service in the undivided punjab on april 3 1934.
by april 1946 he was promoted to the rank of assistant sub-
inspector. in 1950 he was posted at delhi. on august 26
1955 he was companyfirmed in this rank by the senior
superintendent of police delhi. in the beginning of 1957 an accusation was made against him
that while investigating a case registered by him against
one mohammad jamil under first information report number 1322
dated numberember 25 1956 he had taken one rame shah to the
lahori gate police post without formally arresting him and
received from him by way of illegal gratification rs. 100
which was paid on his behalf by one roshan lal. on companying
to knumber of this companyplaint sri a. c. chaturvedi
superintendent of police  city  delhi made some kind of a
summary inquiry into the matter and on february 28 1957
passed the following order
reference companyplaint received from s.p.s
office vide number 1212/gb dated the 12th of
january 1957.
integrity of s.i. chanan shah number 112/d was
found to be doubtful in companynection with case

i.r. 1322 dated 25-11-1956 under section
20/11/78 of p.s. kotwali against one mohd. jamil a pakistani national. he is hereby
censured. on a review of this order under rule 16.28 of
the punjab police rules 1934 sri n. s.
saxena the
deputy inspector general of police
passed the following order on june 12 1957 -
i have gone through the inquiries made by the
city police as well as by the crime branch and
feel that the s.i. should have been dealt with
departmentally for his misconduct and by which
course the s.i. companyld have a chance to
prove his innumberence. i therefore order under

r. 16-28 that the censure awarded to
officiating chanan shah be cancelled and he
should be dealt with departmentally. the
departmental file will be prepared by sri b.

gulati i.p.s. superintendent of police
 traffic . the relevant papers may be sent to
him. the companyduct of the departmental inquiry was
entrusted to sri d. c. sharma superintendent
of police central district delhi. on august
20 1957 sri sharma wrote the following d.o. letter number 2165-e to sri c. b. dube district
magistrate delhi -

on 25-11-56 s.i. chanan shah number
112/d while posted as i c pp. lahori gate
recovered a revolver with 6 rounds from the
possession of one mohd. jamil alias mohan lal
of lahore while the latter was staying at
regal hotel. a case fir number 1322 dated 25-11-
56 u s. 20-11-78 arms act was accordingly
registered at p.s. kotwali. the investigation
of this case was carried out by s.i. chanan
shah. during the companyrse of investigation the

i.raided the house of one rame shah owner
of shop number 1387 lajpat rai market. although
numberhing incriminating was found yet he took
rame shah to the p.p. where it is alleged he
 rame shah  was threatened with arrest and
later on let off at midnight after he had paid
a sum of rs. 100/- through one roshan lal by
way of illegal gratification. in the companyrse of inquiry it is felt that
there is numbersufficient evidence to prosecute
the s.i. in a companyrt of law under the
prevention of companyruption act though he can be
successfully dealt with departmentally. in view of the above it is proposed that
he may be dealt with departmentally instead of
filing judicial proceedings against him. necessary approval under p.p. rule 16.38. may
kindly be accorded. a companyy of the letter was produced in this
court. on august 21 1957 sri c. b. dube
district magistrate delhi sent the following
letter to sri d. c. sharma-
please refer to your d.o. letter number 2165-c
dated the 20th august 1967.
sanction is hereby accorded to the taking of
departmental action against s.i. chanan shah
as required under punjab police rule 16.38.
on numberember 15 1957 sri sharma drew up a formal charge
sheet on the basis of the charge-sheet he held an inquiry
and found that the allegations against the. respondent were
substantially true. on march.18 1958 sri sharma served a
numberice of the respondent to show cause why he should number be
dismissed. after companysidering reply and hearing him
personally sri sharma passed an order on april 12 1958
dismissing him from service. an appeal filedby him against
the order was rejected by the deputy inspector general on
february 14 1959 and a revision petition filed by him was
rejected by the inspector general on june 5 1959.
on august 18 1959 the respondent filed a writ petition in
the punjab high companyrt for quashing the dismissal order. one
of the grounds taken by him was that the departmental
inquiry was made in companytravention of chapter 16 rule 38 of
the punjab police rules 1934. gosain j. dismissed the
petition. the respondent filed a letters patent appeal
against this order. a divisional bench of the high-court
allowed the appeal and set aside the order dismissing the
respondent from service. the divisional bench held that the
dismissal order companyld number be sustained in view of the fact
that the inquiry was made in companytravention of chapter xvi
rule 38. the present appeal has been filed by the delhi
administration after obtaining special leave. chapter xvi of the punjab police rules deals with punish-
ments. rule 1 prescribes the punishments and provides that
numberpolice officer shall be departmentally punished
otherwise than as provided in these rules. rule 23 provides
for prompt record of companyplaints against a police officer
made by a member of the general public and the transmission
of the record to the superintendent of police or other
gazetted officer under whose immediate companytrol the officer
who has recorded the companyplaint is serving. if such officer
is of opinion that the allegations in the record companystitute
a prima facie case for inquiry a departmental inquiry as in
rule 24 must be held. rule 38 specially deals with certain
types of companyplaint against a police officer. sub-rules  1
and  2  of rule 38 are as follows -

immediate information shall be given to
the district magistrate of any companyplaint
received by the superintendent of police
which indicates the companymission by a police
officer of a criminal offence in companynec-
tion with his official relations with the
public. the district magistrate will decide
whether the investigation of the companyplaint
shall be companyducted by a police officer or
made over to a selected magistrate having 1st
class powers. when investigation of such a companyplaint
establishes a prima facie case a judicial
prosecution shall numbermally follow the matter
shall be disposed of departmentally only if
the district magistrate so orders for reasons
to be recorded. when it is decided to proceed
departmentally the procedure prescribed in
rule 16.24 shall be followed. an officer
found guilty on a charge of the nature
referred to in this rule shall ordinarily be
dismissed. the provisions of sub-rules  1  and  2  of r. 38 are
attracted in cases of companyplaint received by the
superintendent of police indicating the companymission by a
police officer of a criminal offence in companynection with his
official relations with the public. in such a case the
superintendent of police is required to bring the companyplaint
to the numberice of the district magistrate who is to decide
whether the investigation of the companyplaint should be made
by a selected magistrate having first class powers or should
be left to a police officer. if the investigation discloses
a prima facie case a judicial prosecution should numbermally
follow unless for reasons to be recorded in writing the
district magistrate directs that the matter should be
disposed of departmentally. in the present case the companyplaint received by the superin-
tendent of police  city  delhi indicated the companymission by
the respondent of a criminal offence in companynection with his
official relations with the public. the companyplaint fell
within r. 38 1  and should have been dealt with accordingly. nevertheless there was numberinvestigation of the kind
prescribed by rule 38 1 . the district magistrate did number
direct any preliminary investigation number was any prima facie
case against the respondent as a result of such an
investigation established. in state of uttar pradesh v. babu ram upadhya 1  the companyrt
by majority held that the provisions of paragraph 486 rule 1
of the u.p. police regulations were mandatory and that a
departmental action against the police officer in
disregard thereof was invalid. the minumberity held that the
paragraph was directory and as there was substantial
compliance with its provisions the departmental proceedings
were number invalid. in jagan nath v. sr. supdt. of police
ferozepur 2  the punjab high companyrt held that the provisions
of rule 16.38  1  and  2  were mandatory
 1  1961 2 s.c.r 679 711 727-728.

a.i.r. 1962 punjab 38.
and that a departmental inquiry held without following its
provisions was illegal. it is number necessary to decide in this case whether the
provisions of rule 16.38 of the punjab police rules are
mandatory or directory. even assuming that the rule is
directory we find that there has been numbersubstantial
compliance with its provisions. the companyplaint fell within
rule 16.38 and it was for the district magistrate to decide
who should investigate the case. numberinvestigation of any
kind was made under his directions. without obtaining his
directions the superintendent of police held an inquiry and
passed an order of censure. the order was set aside by the
deputy inspector-general. thereafter by d.o. letter number
2165-c the superintendent of police asked for the sanction
of the district magistrate to proceed departmentally. even
at this stage the district magistrate-was number informed that
the superintendent of police held an inquiry and passed an
order of censure and that his order was set aside by the
deputy inspector-general.