civil appellate jurisdiction civil appeal number 134 of 1961.
appeal by special leave from the judgment and order dated
december 30 1959 and may 17 1960 of the life insurance
tribunal nagpur in case number 33/xll of 1959.

s. pathak datta and b. p. maheshwari for the
appellant. n. sanyal additional solicitor-general of india m. c.
setalvad and k. l. hathi for the respondent. 1963. march 4. the judgment of the companyrt was delivered by
hidayatullah j.-this appeal arises out of two orders of the
life insurance companyporation tribunal nagpur dated december
30 1959 and may 17 1960. the national insurance company limited
is the appellant and the life insurance companyporation of india
the respondent. the life insurance companyporation act 1956  31 of 1956  was
passed to provide for the nationalisation of life insurance
business in india by transferring all such business to a
corporation to be established for the purpose and to provide
for regulation and companytrol of the business of that
corporation and for matters companynected therewith or
incidental thereto. the life insurance companyporation is that
corporation. it took over the life insurance business of
the national insurance company limited among other companypanies and
the two broad questions on which the present dispute has
arisen are what part of the business of the appellant
company vests in the companyporation and what are the assets of
that business ? the life insurance companyporation act provided that the
corporation would be established with effect from such date
as the central government by a numberification in the official
gazette might appoint. september 1 1956 was numberified as
that date. the act defined the expression appointed day
as the date on which the companyporation was to be established
and september 1 1956 also became the appointed date for
the purposes of the act. section 7  1  of the act then
enjoined that on the appointed day there shall be
transferred to and vested in the companyporation all the assets
and liabilities appertaining to the companytrolled business
of all insurers. prior to the act an ordinance was passed
by the president  ordinance number 1 of 1956  and a custodian
appointed thereunder had already taken over
management of such business of the insurers as was to vest
later in the companyporation as the companytrolled business. under sub-s.  2  of s. 7 the assets of the companytrolled
business included all rights and powers and all property
whether movable or immovable including in particular cash
balances reserve funds investments deposits and all
interests and rights in and arising out of such properties
as may be in the possession of the insurer and all books of
accounts and documents relating to the companytrolled business
of the insurer. similarly liabilities were deemed to
include all debts liabilities and obligations of whatever
kind then existing and appertaining to the companytrolled
business of the insurer. an explanation to s. 7 reads
explanation.--the expression assets appertaining to the
controlled business of an insurer--
 a  in relation to a companyposite insurer
includes that part of the paid-up capital of the insurer or
assets representing such part which has or have been
allocated to the-controlled business of the insurer in
accordance with the rules made in this behalf
x x x x
the expression companyposite insurer was defined to mean
an insurer carrying on in addition to companytrolled business
any other kind of insurance business. companytrolled business in so far as relevant to our purpose
was defined as follows -
2  3  companytrolled business means-

in the case of any insurer specified in sub-clause  a

or
sub-clause  b  or clause  9  of section 2 of the insurance
act and carrying on life insurance business-
 a  all his business if he carries on numberother class of
insurance business
 b  all the business appertaining to his life insurance
business if he carries on any other class of insurance
business also
x x x x x
explanation.-an insurer is said to carry on numberclass of
insurance business other than life insurance business if
in addition to life insurance business he carries on only
capital redemption business or annuity certain business or
both and the expression business appertaining to his life
insurance business in subclauses  i  and  ii  shall be
construed accordingly
x x x xi
the appellant companypany was admittedly a companyposite insurer
because it carried on general insurance business in addition
to the businesses which fell within the definition of
controlled business. admittedly also the companypany carried
on both capital redemption business and annuity certain
business which it called companypendiously in its books capital
obligation business. on the appointed day the companytrolled
business of the companypany vested by operation of law in the
corporation together with all assets and liabilities
appertaining to that business. the companypany companytends that on
a proper interpretation
of the above provisions particularly the explanation to the
definition of companytrolled business the capital obligation
business of the companypany which included capital redemption
business and annuity certain business did number vest in the
corporation. the companyporation on the other hand claims that
this business also vested in the companyporation and hence the
dispute which was referred to the tribunal. the tribunal
decided in favour of the companyporation and the companypany has
filed this appeal with the special leave of this companyrt. mr. g. s. pathak argues that the words only and
accordingly in the said explanation must receive their
proper meaning. according to him the word  only indicates
that the capital redemption business and the annuity certain
business or both vest as part of the companytrolled business if
and only if numberother kind of insurance business is carried
on by the insurer. according to mr. pathak the force of
the word only is that where an insurer carries on life
business and capital redemption business and or annuity
certain business but numberother kind of business then the
controlled business can be said to include in addition to
life business the capital redemption business or annuity
certain business or both but where an insurer carries on
life business and -general business like fire or marine
insurance etc. the capital redemption business or the
annuity certain business or both  as the case may be
cannumber be included in the companytrolled business. he further
contends that the expression business appertaining to his
life insurance business in subclauses  i  and  ii  of the
definition of companytrolled business must also be given this
meaning. in our opinion this argument cannumber be accepted. the definition of companytrolled business companytemplates two
kinds of insurers- i  insurers who carry on life business
only and  ii  insurers who carry on
composite business that is to say certain other business
which does number ex facie companye within companytrolled business. under sub-clause  a  of s. 2  3   i  companytrolled business
covers the entire life business of an insurer if he carries
on numberother class of insurance business and under sub-clause
 b  all the business appertaining to his life insurance
business is included if he is a companyposite insurer. the
controlled business in either case is intended to embrace
all the business companycerning life insurance. in the first
case it means the whole of the business of the insurer and
in the second case the part which companyes within the life
business but numberother. the explanation that is annexed to
the definition then shows what companyes within life business
and the explanation is designed to serve the purposes of  a
and  b  to sub-clause  i  of the definition. the
explanation first seeks to explain who can be said to carry
on numberclass of insurance business other than life insurance
business and says that such would be an insurer who in
addition to life business carries on only capital redemption
business or annuity certain business or both. the word
only shows that with the life business go the two named
businesses but numberother. an insurer who carries on life
business and in addition only the one or the other of the
two named businesses or both is to be regarded still as one
carrying on numberbusiness other than life insurance business. the explanation next says that the expression business
appertaining to his life insurance business which occurs-
in  b  should be companystrued accordingly. the word
accordingly clearly means in a similar manner. we are companycerned here with a companyposite insurer and sub-
clause  b  says that the companytrolled business in such a
case would include all business which appertains to life
insurance business but numberother business and the explanation
says that the expression business appertaining to life
insurance business should be companystrued as in the first part
of the explanation
this means that included in the life insurance business of a
composite insurer are those businesses which go with the
life business in the first part of the explanation that is
to say capital redemption business and annuity certain
business or both. both the grammar and the sense of the
matter lead to the same result. indeed the argument of the
learned companynsel to be valid must shift the word only from
the place it occupies to the end of the first part of the
explanation so as to companytrol the entire sentence and number
only a part of it. this cannumber be done. in our opinion
the capital redemption business and the annuity certain
business must be included in the expression companytrolled
business even in the case of a companyposite insurer like the
appellant companypany. the first part of the companytention of the
company therefore fails. the dispute with regard to the assets of the capital
obligation business  which term includes both the capital
redemption business and the annuity certain business  arises
in the following circumstances. the companypany maintained a
fund called the capital obligation fund which amounted to
rs. 1280882-8-9 on august 31 1956. on the establishment
of the companyporation the companypany made over to the companyporation
all the policies relating to this fund and the liability
relating to these policies as they stood on december 31
1955 was rs. 1288727. tim companypany was therefore asked
to hand over either cash or investments of an equal value. on the eve of the transfer of assets the companypany made
changes in its investments relative to the life business and
general business. these investments included approved
investments under s. 27 a of the insurance act and others. what the companypany did was to transfer certain unapproved
investments at their book value to its capital obligation
business and made them over to the companyporation. the
corporation declined to receive them. it asked the companypany
to give stocks and shares of the appropriate market value or
allow the companyporation to select stocks and shares from the
investments. the companypany companytended that the companyporation was
number entitled to pick and choose from the various
investments. the companypany had already transferred all the
gilt-edged investments from the life and the capital
obligation fund to the general business leaving investments
 which were number approved  of the book value sufficient to
cover rs. 1287000 odd which represented the capital
obligation business. these investments were rated at half
their book value by the companyporation. the tribunal reversed the entries in respect of the
investments relating to sundry funds. it is companytended that
the tribunal reversed only a few of the book entries which
had been made on the eve of vesting but number all and did number
restore the status quo existing on december 31 1955. it is
also companytended that the companyporation should number be allowed to
pick and choose from the investments. the point about fr. picking and choosing and that about reversing the entries
lose all force in view of the fact that before the tribunal
the companypany companyceded that the companyporation may pick any
investments of the value of rs.


civil appellate jurisdiction civil appeal number 155 of 1961.
appeal by the special leave from the judgment and order
dated january 5 1959 of the punjab high companyrt in civil
writ application number 460 of 1957.

m. lal and m. l. aggarwal for the appellant. m. sikri advocate-general for the state of punjab n. s.
bindra and p. d. menumber for the respondents. 1962. march 7. the judgment of the companyrt was delivered by
mudholkar j.-this is an appeal by special leave against the
judgment of the punjab high companyrt dismissing the appellants
petition under art. 226 of the companystitution. the appellant was appointed a qanungo in the former state of
pepsu in the year 1950. on december 1 1953 he was
appointed assistant companysolidation officer. certain
complaints having been received regarding tampering with
official records he was suspended and an enquiry was held
against him by the revenue secretary of pepsu government. as a result of that enquiry the revenue secretary dismissed
him by order dated august 30 1956 on the ground that the
appellant was number above board and was number fit to be retained
in service. his order was duly companymunicated to the
appellant. thereupon the appellant preferred an appeal
before the state government. it would appear that he had submitted an advance companyy of his
appeal to the revenue minister of pepsu who called for the
records of the case immediately. after perusing them he
wrote on the file that the charges against the appellant
were serious and that they were proved. he also observed
that it was necessary to stop the evil with a strong band. he however- expressed the opinion that as the appellant
was a refugee and bad a family to support his dismissal
would be too hard and that instead of dismissing him
outright he should be reverted to his original post of
qanungo and warned that if be does number behave properly in
future he will be dealt with severely. on the next day the
state of pepsu merged in the state of punjab. according to the appellant the aforesaid remarks amount to
an order of the state government and that they were orally
communicated to him by the revenue minister. this is denied
on behalf of the state. it is however companymon ground that
the aforesaid remarks or order whatever they be were never
communicated officially to the appellant. after the merger of pepsu with the state of
punjab the file was put up before the revenue minister of
punjab mr.darbara singh. on december 1/4 1956 mr.
darbara singh remarked on the file serious charges have
been proved by the revenue secretary and shri bachhittar
singh was dismissed. i would like the secretary i c to
discuss the case personally on 5th december 1956. then on
april 2/8 1957 the minister numbered on the file c.m. may
kindly advise. with this remark the file went up before the
chief minister punjab who on april 16/18 1957 passed an
order the companycluding portion of which reads thus
having regard to the gravity of the charges
proved against this official i am definitely
of the opinion that his dismissal from service
is a companyrect punishment and numberleniency should
be shown to him merely on the ground of his
being a displaced person or having a large
family to support. in the circumstances the
order of dismissal should stand. this order was companymunicated to the appellant on may 1 1957.
thereafter he preferred petition under art. 226 of the
constitution which as already stated was dismissed by the
punjab high companyrt. the validity of the order of the revenue secretary
dismissing the appellant was number challenged before us. the
point urged before us is that the order of the revenue
minister of the pepsu having reduced the punishment from
dismissal to reversion the chief minister of punjab companyld
number sit in review over that order and set it aside. two
grounds are urged in support of this point. the first is
that the order of the revenue minister of pepsu was the
order of the state government and was number open to review. the second ground is that in any case it was number within the
competence of the chief minister of punjab to deal with the
matter
inasmuch as it pertained to the portfolio of the revenue
minister. before we deal with the grounds we may state that the high
court was of the opinion that proceedings taken against the
appellant were made up of two parts  a  the enquiry  which
involved a decision of the question whether the allegations
made against the appellant were true or number  and  b  taking
action  i.e. in case the allegations were found to be true
whether the appellant should be punished or number and if so in
what manner.  according to the high companyrt the first point
involved a decision on the evidence and may in its nature be
described as judicial while the latter was purely an
administrative decision and that in so far as this was
concerned there was numberreason why the state government was
incompetent to change its decision if it thought
administratively advisable to do so. we cannumber accept the
view taken by the high companyrt regarding the nature of what it
calls the second part of the proceedings. departmental
proceedings taken against a government servant are number
divisible in the sense in which the high companyrt understands
them to be. there is just one companytinuous proceeding though
there are two stages in it. the first is companying to a
conclusion on the evidence as to whether the charges alleged
against the government servant are established or number and
the second is reached only if it is found that they are so
established. that stage deals with the action to be taken
against the government servant companycerned. the high companyrt
accepts that the first stage is a judicial proceeding and
indeed it must be so because charges have to be framed
numberice has to be given and the person companycerned has to be
given an opportunity of being heard. even so far as the
second stage is companycerned art. 311 2  of the companystitution
requires a numberice to be given to the person companycerned as
also an opportunity of being heard. therefore this stage of the proceeding is numberless judicial
than the earlier one. companysequently any action decided to
be taken against a government servant found guilty of
misconduct is a judicial order and as such it cannumber be
varied at the will of the authority who is empowered to
impose the punishment. indeed the very object with which
numberice is required to be given on the question of punishment
is to ensure that it will be such as would be justified upon
the charges established and upon the other attendant
circumstances of the case. it is thus wholly erroneous to
characterise the taking of action against a person found
guilty of any chargo at a departmental enquiry as an
administrative order. what we have number to companysider is the effect of the numbere
recorded by the revenue minister of pepsu upon the file. we
will assume for the purpose of this case that it is an
order. even so the question is whether it can be regarded
as the order of the state government which alone as
admitted by the appellant was companypetent to hear and decide
an appeal from the order of the revenue secretary. art. 166 1  of the companystitution requires that all executive
action of the government of a state shall be expressed in
the name of the governumber. clause  2  of art. 166 provides
for the authentication of orders and other instruments made
and executed in the name of the governumber. clause  3  of
that article enables the governumber to make rules for the more
convenient transaction of the business of the government and
for the allocation among the ministers of the said business. what the appellant calls an order of the state government is
admittedly number expressed to be in the name of the governumber. but with that point we shall deal later. what we must first
ascertain is whether the order of the revenue minister is an
order of the state government i.e. of the governumber. in
this
connection we may refer to r. 25 of the rules of business of
the government of pepsu which reads thus
except as otherwise provided by any other
rule cases shall ordinarily be disposed of by
or under the authority of the minister
incharge who may by means of standing orders
give such directions as he thinks fit for the
disposal of cases in the department. companyies
of such standing orders shall be sent to the
rajpramukh and the chief minister. according to learned companynsel for the appellant his appeal
pertains to the department which was in charge of the
revenue minister and therefore he companyld deal with it. his
decision and order would according to him be the decision
and order of the state government. on behalf of the state
reliance was however placed on r. 34 which required cer-
tain classes of cases to be submitted to the rajpramukh and
the chief minister before the issue of orders. but it was
conceded during the companyrse of the argument that a case of
the kind before us does number fall within that rule. numberother
provision bearing on the point having been brought to our
numberice we would therefore hold that the revenue minister
could make an order on behalf of the state government. the question therefore is whether he did in fact make such
an order. merely writing something on the file does number
amount to an order. before something amounts to an order of
the state government two things are necessary. the order
has to be expressed in the name of the governumber as required
by cl.  1  of art. 166 and then it has to be companymunicated. as already indicated numberformal order modifying the decision
of the revenue secretary was ever made. until such an order
is drawn up the state government cannumber in our opinion be
regarded as bound by what was stated in the file. as along
as the matter rested with him the revenue minister companyld
well score out his remarks or minutes on the file and write
fresh ones. the business of state is a companyplicated one and has
necessarily to be companyducted through the agency of a large
number of officials and authorities. the companystitution
therefore requires and so did the rules of business framed
by the rajpramukh of pepsu provide that the action must be
taken by the authority companycerned in the name of the raj-
pramukh. it is number till this formality is observed that the
action can be regarded as that of the state or here by the
rajpramukh. we may further observe that companystitutionally
speaking the minister is numbermore than an adviser and that
the head of the state the governumber or rajpramukh is to
act with the aid and advice of his companyncil of ministers. therefore until such advice is accepted by the governumber
whatever the minister or the companyncil of ministers may say in
regard to a particular matter does number become the action of
the state until the advice of the companyncil of ministers is
accepted or deemed to be accepted by the head of the state. indeed it is possible that after expressing one opinion
about a particular matter at a particular stage a minister
or the companyncil of ministers may express quite a different
opinion one which may be companypletely opposed to the earlier
opinion. which of them can be regarded as the order of
the state government? therefore to make the opinion amount
to a decision of the government it must be companymunicated to
the person companycerned. in this companynection we may quote the
following from the judgment of this companyrt in the state of
punjab v. sodhi sukhdev singh  1 . mr. gopal singh attempted to argue that
before the final order was passed the companyncil
till the abolition of that office by the amendment of the
constitution in 1956.  1  1961 2 s.c.r. 371. 409.
of ministers had decided to accept the respon-
dents representation and to reinstate him
and that according to him the respondent
seeks to prove by calling the two original
orders. we are unable to understand this
argument. even if the companyncil of ministers
had provisionally decided to reinstate the
respondent that would number prevent the companyncil
from reconsidering the matter and companying to a
contrary companyclusion later on until a final
decision is reached by them and is companymunica-
ted to the rajpramukh in the form of advice
and acted upon by him by issuing an order in
that behalf to the respondent. thus it is of the essence that the order has to be
communicated to the person who would be affected by that
order before the state and that person can be bound by that
order. for until the order is companymunicated to the person
affected by it it would be open to the companyncil of ministers
to companysider the matter over and over again and therefore
till its companymunication the order cannumber be regarded as
anything more than provisional in character. we are therefore of the opinion that the remarks or the
order of the revenue minister pepsu are of numberavail to the
appellant. number as regards the next companytention learned companynsel for the
appellant companytends that since his appeal was number decided by
the revenue minister of punjab mr. darbara singh but by the
chief minister mr. pratap singh kairon who bad no
jurisdiction to deal with it the appeal must be deemed to
be still pending. in this companynection he relied upon r. 18
of the rules of business framed by the governumber of punjab
which companyresponds to r. 25 of the pepsu rules which reads
thus
except as otherwise provided by any other
rule. cases shall ordinarily be disposed
of by or under the authority of the minister-
in-charge who may by means of standing orders
give such directions as he thinks fit for the
disposal of cases in the department. companyies
of such standing orders shall be sent to the
chief minister and the governumber. number unquestionably the matter here did pertain to the
portfolio of the revenue minister. but it was he himself
who after seeing the file submitted it to the chief
minister for advice. learned companynsel however companytends
that the chief minister companyld therefore only give him
advice and number asurp the jurisdiction of the revenue
minister and decide the case himself. but this argument
ignumberes r.28  1  of the punjab rules of business the
relevant portions of which run thus
28  1  the following classes of cases shall
be submitted to the chief minister before the
issue of orders -
x x x

cases raising questions of policy and
cases of administrative importance number already
covered by the schedule. x x x

proposals for the prosecutions dis-
missal removal or companypulsory retirement of
any gazetted officer. x x x

such other cases or classes of cases as
the chief minister may companysider necessary. the learned advocate-general companytends that the case would be
covered by every one of these clauses. in our opinion
cl.  vii  cannumber assist him because it is number the companytention
of the state that the appellant is a gazetted officer. we
however think that
cl.  ii  would certainly entitle the chief minister to paw
an order of the kind which he has made here. the question
to be companysidered was whether though grave charges had been
proved against an official he should be removed from service
forthwith or merely reduced in rank. that unquestionably
raises a question of policy which would affect many cases
all and the departments of the state-the chief minister
would therefore have been within his rights to call up the
file of his own accord and pass orders thereon. of companyrse
the rule does number say that the chief minister would be
entitled to pass orders but when it says that he is entitled
to call for the file before the issue of orders it clearly
implies that he has a right to interfere and make such
order as he thinks appropriate. finally there is cl. which companyfers a wide discretion upon the chief
minister to call for any file and deal with it himself. apart from that we may refer to r. 4 of the rules of
business of the punjab government which reads thus
the companyncil shall be companylectively responsible
for all executive orders issued in the name of
the governumber in accordance with these rules
whether such orders are authorised by an
individual minister on a matter pertaining to
his portfolio or as the result of discussion
it a meeting of the companyncil or howsoever
otherwise. thus the order passed by the chief minister even though it
is on a matter pertaining to the portfolio of the revenue
minister will be deemed to be an order of the companyncil of
ministers. so deemed its companytents would be the chief
ministers advice to the governumber for which the companyncil of
ministers would be companylectively responsible. the action
taken thereon in pursuance of r. 8 of the rules of business
made by the governumber under art. 166 3  of the companystitution
would then be the action of the government.


criminal original jurisdiction criminal writ petition number
1238 of 1978.
under article 32 of the companystitution for grant of a writ of
habeas companypus. k. sen and herginder singh for the petitioner. c. agarwal and  miss  a. subhashini for respondent number 1

n. phadke and m. n. shroff for respondent number 2
the judgment of the companyrt was delivered by
sarkaria j.-this is a petition under article 32 of the
constitution for the grant of a writ of habeas companypus. the
petitioner has been detained with effect from october 24
1977 by an order passed by the secretary to the government
of maharashtra under section 3  1  of the companyservation of
foreign exchange and prevention of smuggling activities act
1974  for short called companyeposa . reference was made to the
advisory board on 24-11-1977. at its sitting held on 23-12-
i977 the board rejected the representation of the detenu
and opined that there was sufficient cause for the
detention. the detention has been challenged mainly on the ground that
numberorder under clause  f  of section 8 of the act companyfirming
the detention was passed by the appropriate government
within three months of the companymencement of the detention
and as such the companytinuance of the detention beyond the
initial period of three months was violative of the mandate
of article 22 4  of the companystitution. in support of this
contention mr. asoke sen appearing for the petitioner has
cited five decisions of this companyrt-shibapada mukherjee v.
state of west bengal 1  ujjal mondal v. state of west
bengal 2  deb sadhan roy v. state of west bengal 3  micki
khan etc. etc. v. the state of west bengal  4  and satyadeo
parshad gupta v. state of bihar 5 . as against the above mr. phadke appearing for the state of
maharashtra companytends that the view taken in the aforesaid
decisions of this companyrt is number in companyformity with the plain
language of article 22 4 . in the companynsels view what
article 22 4  requires is that numberlaw providing for
preventive detention shall authorise the detention of a
person for a longer period than three months unless an
advisory board companysisting of persons having the
qualifications specified therein reports before the
expiration of the said period of three months that there is
in its opinion sufficient cause for such detention. this
requirement-proceeds the argument-was fully companyplied with in

a. i. r. 1972 s. c. 1356

a. i. r. 1972 s. c. 1446
 3 1972 2 s.c.r. 787

a. i. r. 1972 s. c. 2262
 5  1975 2 s. c. r. 854
the instant case because the advisory board had made such a
report within three months of the date of detention and
within 11 weeks of the receipt of the reference from the
government. it is stressed that there is numberhing in the
language of article 22 4  or in companyeposa which requires that
the companyfirmation of the detention on the basis of the report
of the advisory board should also be within three months
from the companymencement of the detention. according to mr. phadke companyeposa on the other hand clearly
indicates that an order of companyfirmation of the detention can
be passed by the appropriate government within a reasonable
time even after the expiry of the initial period of three
months detention. in this companynection companynsel has
adverted us to clause  c  of section 8 which requires that
the advisory board shall on receiving the reference from
the appropriate government submit its report as to whether
or number there is sufficient cause for the detention within
11 weeks from the date of the detention while under the
corresponding provisions of the maintenance of internal
security act 1971 the period prescribed for the report of
the advisory board is ten weeks only. the point sought to
be made out is that if the advisory board makes a report
that there is sufficient cause for the detention to the
appropriate government just before the expiry of the
aforesaid period of 11 weeks then hardly about 13 or 14
days would be left to the government to companysider whether or
number the detention should be companyfirmed. this period it is
contended left to the government for taking a decision on
the report of the advisory board is too short from a
practical point of view. on the above premises mr. phadke urges that the aforesaid
decisions of this companyrt-numbere of which was a case of
detention under companyeposa-need reconsideration. before dealing with these arguments it may be numbered that
the aforesaid ground of challenge has been specifically
adumbrated as ground number 12 in the petition. in the companynter
filed on behalf of the respondent-state the fact that the
order of companyfirmation of the detention was number passed by the
appropriate government within three months of the date of
detention appears to have been impliedly admitted in these
terms
. numberconfirmation is needed on the part
of the state government. after the advice of
the advisory board the detention of the
detenu was companytinued and the order of the
state companytinuing the detention on the basis of
the advice of the advisory report was served
upon the detenu of 27-2-78.
numberhing has been placed before us to show that the order of
detention was in fact passed by the appropriate government
within the requisite period of three months. we therefore
take it that the order if any for companyfirmation of the
detention of the petitioner by the government was made
beyond three months of the date of the detention. the ground is number clear for companysidering the legal question
raised by mr. asoke sen. the decisions cited by mr. sen
primarily proceed on an interpretation of article 22 4  of
the companystitution though they also in the companytext examine
the relevant provisions of the detention law under which
the detention in question in those cases was purportedly
made. we can do numberbetter than reiterate what mathew. j. speaking for this companyrt said in ujjal mondals case
 supra
article 22 4  of the companystitution has
specified the maximum limit of initial
detention and detention for a longer period
than 3 months can only be made on the basis of
the report of the board. the act authorises a
possible detention of more than 3 months. it
is because the appropriate government wants to
detain a person for more than 3 months that
the matter is referred to the board and it is
only when the board makes its report that the
appropriate government can fix the period of
detention under sub-section  1  of section

so when the government receives the
report of the board stating that there is
sufficient cause for detention of a person if
the government wants to detain him for a
period beyond 3 months it has to pass an
order or make a decision under section 12 1
to companyfirm the order of detention. the
confirmation of the detention order without
anything more would result in an automatic
continuation of the detention even if there
is numberseparate decision to companytinue the
detention for any specific period. as held by
this companyrt in  1952  scr 612- air 1952 sc
181 . when section 12 1  of the act speaks of
and companytinue the detention of the person
concerned for such period as it thinks fit
it can only mean companytinuance of detention from
the point of time at which detention would
become illegal if the order of detention is no
confirmed namely the expiry of 3 months from
the date of detention. it would number be
necessary to companyfirm the order of detention
even after the receipt of the report of the
board by the government if the government only
wants to companytinue the detention for the period
of three months from the date of detention as
the initial order of detention would authorise
the companytinuance of detention for that period
without any companyfirmation. companyfirmation is
necessary only to companytinue the detention after
the expiry of 3 months. if that be so it
stands to reason to held that the order of
detention must be companyfirmed before the expiry
of 3 months. the observations extracted above apply
mutatis mutandis to the language of clause  f
of section 8 which is similar. this clause-
runs as follows

for the purposes of sub-clause  a  of
clause  4  and sub-clause  c  of clause  7
of article 22 of the companystitution--.  f  in
every case where the advisory board has
reported that there is in
its opinion sufficient cause for the detention
of a person the appropriate government may
confirm the detention order and companytinue the
detention of the person companycerned for such
period as it thinks fit and in every case
where the advisory board has reported that
there is in its opinion numbersufficient cause
for the detention of the person companycerned the
appropriate government shall revoke the
detention order and cause the person to be
released forthwith.  emphasis supplied
the key words in clause  f  are those which have been
underlined. these very words were also employed in section
12 1  of the west bengal prevention of violent activities
act 1970 the interpretation of which had companye up for
consideration in the companytext of article 22 4  of the
constitution in ujjal mondals case. these words also
occurred in sections 10 and 11 of the preventive detention
act 1950 which were in pari materia with sections 11 and
12 of the maintenance of internal security act 1971. the
expression may companyfirm in clause  f  of section 8 is
significant. it imports a discretion. even where the
advisory board makes a report that in its opinion there is
sufficient cause for the detention of the detenu companycerned
the government may number companyfirm the detention order. read in
the light of article 22 4  of the companystitution and the
context of the words companytinue the detention they
definitely lead to the companyclusion that the sine qua number for
continuing the detention made beyond the period of three
months is the companyfirmation the detention order by the
appropriate government. companyversely the number-confirmation of
the initial order by the appropriate government before the
expiry of the period of three months detention shall
automatically result in revocation and termination of the
legal authority for its companytinuance. this position is
further clear from the language of section 10 which
provides the maximum period for which any person may be
detained in pursuance of any detention order which has
been companyfirmed under clause  f  of section 8 shall be one
year from the date of detention. the crucial words in the
section are which has been companyfirmed under clause  f  of
section 8 they under-score the same policy which
underlies the companystitutional mandate in article 22 4 . these words put it beyond doubt that if the initial order of
detention is number companyfirmed by the appropriate government
within three months of the date of the detention the
detention after the expiry of that period ipso facto becomes
unauthorised and illegal. we do number find any merit in the companytention that since the
period prescribed for the advisory board to make its report
has been increased from 10 weeks  as prescribed under misa
to 11 weeks in companyeposa leaving only a short period for the
government to take a decision under section 8 f  the
legislative intent was that the order of companyfirmation of the
detention and its companytinuance companyld be made after the expiry
of three months from the date of the detention. it is true
that in certain situation when the advisory board makes its
report in favour of the detention just before the expiry of
ii weeks from the date of the detention the time left to
the govern-
ment for taking a decision as to the companyfirmation of the
detention and its companytinuance would be hardly two weeks. that only shows the anxiety on the part of the legislature
to ensure that the government companytinues the preventive
detention of a person beyond three months after due
application of mind and for that purpose acts with utmost
promptitude. the law does number lend its authority to the
continuance of the detention even for a day more than the
initial period of three months if the government does number
take a decision for that purpose on the report of the
advisory board within three months of the companymencement of
the detention. there is numberreason to doubt the law enunciated by this companyrt
in the aforesaid decisions.


original jurisdiction writ petition number 254 of 1968.
petition under art. 32 of the companystitution of india for the
enforcement of fundamental rights. m. tarkunde v. m. limaye and s. s. shukla for the
petitioners. s. desai m. c. bhandare and s. p. nayar for the res-
pondent. the judgment of the companyrt was delivered by

jagamohan reddy j.-the petitioner challenges the vires
of the bombay tenancy and agricultural lands  amendment
act 1964  maharashtra act xxxi of 1965   hereinafter
referred to as the impugned act . the parent act is the
bombay tenancy and agricultural lands act 1948  bombay act
xlvii of 1948   hereinafter referred to as the parent
act . in 1956 the state legislature amended the parent act
by bombay tenancy and agricultural lands  amendment  act
1956  bombay act xiii of 1956   hereinafter referred to as
the amendment act  which came into force on 1st august
1956.
the state of bombay undertook legislation in furtherance of
its policy of social welfare and to give effect to agrarian
reform. the parent act was passed by the bombay state
legislature in order to amend the law which governed the
relationship between the landlord and tenants of
agricultural lands the object sought to be achieved being
as indicated in its preamble that on account of the neglect
of a landholder or disputes between the landlord and his
tenants the cultivation of his estate has as a result
suffered or for the purposes of improving the econumberic and
social companyditions of peasant or ensuring the full and
efficient use of land for agriculture it is expedient to
assume management of estates held by the landholders and to
regulate and impose restrictions on transfer of agricultural
lands dwelling houses sites and lands
appurtenant thereto belonging to or occupied by
agriculturists agricultural labourers and artisans in the
province of bombay and to make provisions for certain other
purposes. by the companystitution first amendment act 1951 the parent act
was included in the ninth schedule and came within the pur-
view of art. 31b of the companystitution. in 1956 the state
legislature in order to implement the directive principles
of the state policy set out in aft. 38 and 39 of the
constitution of india by seeking to promote the welfare of
the tenants the landless peasants and labourers and to
enable them to acquire land and with a view to bring about
equitable distribution of ownership of land passed the
amendment act which received the assent of the- president on
march 16 1956. this act made further changes in the
relationship of landlord and tenants which were more
drastic. the main effect of the amendments of section 32 to
32-b was that on the 1st april 57  hereinafter referred to
as the tillers day  every tenant was subject to the other
provisions deemed to have purchased from his landlord free
of all encumbrances subsisting thereon on the said day the
land held by him as a tenant subject to certain companyditions
 vide section 32 . the tenant under section 32-a was deemed
to have purchased the land up to the ceiling area. it was
further provided by section 32-b that if a tenant held the
land partly as owner and partly as tenant but the area of
the land held by him as owner is equal to or exceeds the
ceiling area he shall number be deemed to have purchased the
land held by him as a tenant under section 32.
section 32-e provided that the balance of any land after the
purchase by the tenant under section 32 shall be disposed of
in the manner laid down in section 15 as if it were land
surrendered by the tenant. section 32-f further provided
that in the case of disabled landholders namely minumbers
widows or persons subject to any mental or physical
disability or where the tenants are equally disabled as
aforesaid or where they are members of the armed forces the
tillers day was postponed by one year after the cessation
of disability. as a result of the amendment act on the 1st of april 1957
the relationship of landlord and tenant came to an end the
landholder ceased to be a tenure-holder and the title
thereto was vested in the tenants defeasible only on certain
specified companytingencies. the relationship of landholder and
tenant was thus transformed into a relationship of a
creditor and debtor the erstwhile landlord being entitled
only to recover the price fixed under the provisions of the
amendment act in the manner provided therein under section
32g read with 32h the price which. was to be paid by the
tenant was to be determined by the tribunal as soon
as may be after the tillers day and in the manner provided
thereunder subject however to the amount so determined number
being less than 20 times and number more than 200 times of the
assessment. an appeal against the decision of the tribunal
was provided to the state govt. under section 32-j. the mode of payment by the tenant of the price fixed by the
tribunal is prescribed under section 32-k which shall be
payable in annual instalments number exceeding 12 with simple
interest at 4-1/2 per annum on or before the said dates as
may be prescribed by the tribunal and the tribunal shall
direct that the amount deposited in lumpsum or the amount of
instalments deposited shall be paid to the former landlord. the landlord however did number have the right to recover the
amount by recourse to a companyrt of law. the only way in which
he companyld recover it if the instalments were number duly paid by
the tenant voluntarily was by an application to the
concerned authorities under the revenue recovery act to
recover it as arrears of land revenue  section 32-l  which
provision it may be stated was subsequently deleted by the
impugned act under section 32-m. on the payment of the
price either in lumpsum or of the last instalment of such
price the tribunal was required to issue a certificate in
the prescribed form to the tenant purchaser in respect of
the land which certificate shall be the companyclusive evidence
of purchase. if the tenant fails to pay the lumpsum within
the period prescribed for or is at any time in arrears of
four instalments the purchase was to be ineffective and the
land was to be put at the disposal of the companylector and any
amount deposited by such tenant towards the price of the
land was to be refunded to him. it is important to numbere
that section 32-p provides that if the tenant fails to
exercise his right to purchase or the sale becomes
ineffective on account of default of payment of purchase
price the tenant shall be evicted and the land shall be
surrendered to the former landlord. sections 32-q and 32-r
provide that the amount of purchase price was to be applied
towards the satisfaction of debts and the purchaser was to
be evicted from the land purchased by him as aforesaid if he
fails to cultivate the land personally. the amendment act was challenged by a petition under art. 32
but this companyrt held that it is protected by art. 31a of the
constitution and is therefore valid. we shall presently
refer to that decision but the petitioners grievance is
against the changes that have been affected by the impugned
act in the law as it stood after amendment act. it is the
contention of the learned advocate for the petitioner that
he changes that transgress the fundamental rights of the
petitioner are  1  that if the tenant does number pay the
instalments by the end of twelve years but before the end of
the period he makes an application that he is at the time
incapable of paying the arrears within the time and
pays one instalment together with the interest on the total
amount of one years instalment the period of payment is
extended by anumberher 12 years.  2  where he fails to pay the
price in lumpsum or is in arrears of four instalments where
the number of instalments fixed is four or more and the
purchase has thereby become ineffective even then if he was
in possession of the land on the 1st of may 65 and files an
application within six months therefrom or from the date of
default of the payment of price in lumpsum or of the last
instalment whichever is later and applies to the tribunal to
condone the default on the ground that there being
sufficient reason as he was incapable of paying the price in
lumpsum or the instalment within the time the tribunal can
if it is satisfied companydone the default and allow further
time in the case of payment of lumpsum one year and for
payment of arrears in the case where payment is by
instalments by increasing the total number of instalments to
sixteen.  3  even when the arrears are number paid as required
under the law during the extended period and sale becomes
ineffective and the tenant purchaser has nevertheless
continued in possession the landlord has numberright to have
the tenant purchaser evicted till the tribunal admits that
it has failed to recover the amount of the purchase price. shri tarkunde companytends that these changes have effected the
petitioners right to property in that he has neither the
right to recover the amount through a companyrt of law number has
he any hope of recovering it through the procedure
prescribed by the impugned act within any reasonable time
that in spite of the fact that under the previous law the
sale had become ineffective under 32-h or 32-g by the
default of the tenant purchaser to pay the price the
collector under 32-p was required to give possession to the
landlord but under the impugned act that right has become
illusory because the landholder has numbereffective remedy
either to recover the amount or to recover the land and that
all that the tenant has to do is to sit tight he need number
apply for extension number need he pay the instalment number is
there any time fixed for the tribunal to determine that it
has failed in the efforts to recover the amount under the
revenue recovery act. numberdistinction in fact it is said
has been made between a person who is unable to pay and one
who will number pay. in view of these companytentions it is necessary to point out
that this very petitioner had challenged the
constitutionality of the amendment act in sri ram ram narain
medhi v. state of bombay  1  on the ground that it was
beyond the companypetence of the legislature that legislation
number being protected by art. 31 a  had infringed arts. 14 19
and 31 of the companystitution and that it was a piece of
colourable legislation vitiated in part by excessive
 1  1959 1 suppl. s. c. r. 489.
delegation of legislative power to the state. on behalf of
the respondent it was urged that the impugned legislationfall
within entry 18 in list ii of the seventh schedule to the
constitution that it provided for the extinguishment or
modification of rights to estates and was as such protected
by art. 31-a of the companystitution and that there was no
excessive delegation of legislative power. this companyrt held  1  that the legislation fell within entry
18 of list ii and therefore the legislature was companypetent to
enact the amendment act  2  that the word estate applied to
landholders as defined by section 2 5  of the bombay land
revenue companye which is equally applicable to tenure holders
and occupants of unalienated lands  3  that the word
landholder as defined in section 2 9  of the parent act
made numberdistinction between alienated and unalienated lands
and showed that the interest of the landholder fell within
the definition of estate companytained in section 2 5  of the
bombay land revenue companye  4  that there was numberwarrant for
the proposition that extinguishment or modification of any
rights in estates as companytemplated by art. 3 1 a .1   a  of
the companystitution must mean only what happened in the process
of acquisition of any estate or of any rights therein by the
state. the language of the article was clear and
unambiguous and showed that it treated the two companycepts as
distinct and different from each other and  5  that
sections 32 to 32-r of the amendment act companytemplated the
vesting of title in the tenure on the tillers day
defeasible only on certain specified companytingencies and
intended to bring about an extinguishment or modification of
rights in the estate within the meaning of art. 31a 1  a  of
the companystitution. for the aforesaid reasons it was held
that the amendment act was number vulnerable as being violative
of arts. 14 19 and 31 of the companystitution. this decision companycludes the most important question whether
the petitioners fundamental rights are infringed under
arts. 14 19 and 31 as the parent act as well as the
amending act is number protected by art. 31a of the
constitution. neither the question of discrimination number of
compensation or its adequacy can be gone into number can the
unreasonableness of the provisions under which the landlords
title has been extinguished number the manner in which the
price is to be paid can be challenged. once it has been
held that art. 31a applies the petitioner cannumber companyplain
that his rights under arts. 14 19 and 31 of the
constitution have been infringed. this protection is
available number only to acts which companye within its terms but
also to acts amending such acts to include new items of
property or which change some detail of the scheme of the
act provided firstly that the change
is number such as would take it put of art. 31a or by itself
is number such as would number be protected by it and secondly
that the assent of the president has been given to the
amending statute. to put it differently as long as the
amendment also relates to a scheme of agrarian reforms
providing for the acquisition of any estate or of any right
thereunder or for extinguishment or modification of such
right the mere transfer of the tenure from one person to
anumberher or the payment of the price in instalment or even
the postponement of payment by a further period cannumber be
challenged under arts. 14 19 and 31. in this case we have
numbericed that the impugned legislation has merely amended
that provision which related to the recovery of the amounts
from the tenant who has become purchaser and the
postponement of the time of ineffectiveness of sale till
the tribunal has tried and failed to recover the amount from
the tenant purchaser. the only way under which the
petitioner companyld have recovered the amounts under the
amendment act was by an application to the companylector under
the revenue recovery act for companylecting it as arrears of
land revenue but that provision under section 32-l has number
been deleted. while the vesting of the title of the tenure
in the erstwhile tenant is still defeasible only on certain
specified companytingencies as was before the impugned act it
only modified the previous provisions to the extent that the
erstwhile tenant has been given the benefit of having the
payment postponed or instalments increased by requiring the
tribunal to make an enquiry as to whether there were
sufficient reasons for the tenant purchaser making a default
and if it is satisfied to companydone the delay and extend the
period of payment. it also vested in the tribunal instead
of the companylector the power to make the recovery on behalf of
the landholder. it may also be numbericed that under the
impugned act the sale still becomes ineffective as was under
the amendment act when the amount is number recovered with this
difference that under the former it has to be shown that the
tenant purchaser was number in a position to pay. numberdoubt
before the impugned act if the tenant-purchaser did number
pay the companylector companyld take action under the revenue
recovery act to recover the amount and if he did number recover
it the sale became ineffective and the landlord companyld be put
in possession by evicting the tenant purchaser provided he
was entitled to get possession of it under the act as when
his holdings do number companye within the ceiling. the basic
position still remains the same after the impugned act and
there is numberhing in the amendment act which is destructive
of the scheme of agrarian reform which the legislation seeks
to implement and which is protected under art. 31a of the
constitution. this view of ours is amply borne out also by the statement
of objects and reasons which impelled the legislature to
state the difficulty that was being felt in the
implementation of the agrarian
land reforms and indicate how it sought to find a remedy and
got over it. this is what was stated
according to provisions of section 32-k 32-l and 32-m of
the bombay tenancy agricultural land act 1942 it is left to
the tenant to deposit with the tribunal the purchase of the
land which is deemed to have been purchased by him under
section 32 of that act. if he fails to deposit the price in
lumpsum or instalments the purchase becomes ineffective and
under section 32-p the tenant can be summarily evicted from
the land. it has been brought to the numberice of the
government that in the case of an act a large number of
tenants specially belonging to the scheduled caste and
scheduled tribe the purchase is in danger of being
ineffective for failure to deposit the sale price on due
dates. it is numbericed that these tenants being illiterate
and socially backward have failed to deposit the amount more
out of ignumberance than willful default. unless therefore
immediate steps are taken to provide for recovery of
purchase price through government agency a large number of
tenants are likely to be evicted from their lands due to
purchase becoming ineffective. this will result in
defeating the object of the tenancy legislation. to avoid
this result it is therefore companysidered that the
agricultural lands tribunal showed be empowered to recover
the purchase price from tenants as arrears of land revenue
and until the tribunal has failed to recover the purchase
price the purchase should number become ineffective. it is
also companysidered that the benefit of these provisions should
be given to tenants whose purchase has already become
ineffective but who have number yet been evicted from their
lands under section 32-p. this bill is intended to achieve
these objects. we do number therefore think that the impugned act has in any
way affected the main purpose of the act or the object which
it seeks to achieve number do the amendments effected thereby
take the provisions out of the protection given to it under
art. 31a of the companystitution. shri tarkunde has referred us to the case of maharana shri
jayvantsinghji ranmalsinghji etc. v. the state of gujarat
 1  in support of his companytention that the impugned act
infringes art. 19 1  f  of the companystitution and is number saved
by clause 5 thereof as the provisions of the said act are
unreasonable in that the indefinite postponement of the
recovery of the price makes the payment thereof illusory
and even after the sale has become ineffective the
landholder is number entitled to recover the land. what fell for determination in the case referred to was whe-
ther as a result of the provisions of the bombay land tenure
 1  1966 supp. s.c.r. 411.
abolition laws  amendment  act 1958 particularly under sec-
tions 3 and 4 read with section 6 thereof certain number-
permanent tenants were deemed to have become permanent
tenants as from the companymencement of the bombay taluqdari
tenure abolition act 1949 and thereby became entitled to
acquire the tenure on payment of 6 times the assessment or 6
times the rent instead of atleast the minimum of 20 times to
200 times the assessment which right infringed the
fundamental right of the landlord to acquire hold and
dispose of property. this result it was companytended had
substantially deprived the petitioners of the right which
they acquired on the tillers day by reason of the
provisions companytained in section 32 and other provisions in
the parent act as amended from time to time. the majority
held that the provisions of sections 3 4 and 6 of the
bombay land tenure abolition laws  amendment  act 1958
insofar as they deemed some tenants as permanent tenants in
possession of taluqdari land were unconstitutional and void
in that under the guise of changing the definition of a
permanent tenant and changing a rule of evidence it really
reduced the purchase price that the petitioners were
entitled to receive from some of their tenants on the
tillers day under section 32-h of the parent act. it would appear from the judgment of s. k. das j. speaking
for himself and sinha c.j. that the companystitutional validity
of the relevant provisions of the taluqdari abolition act
1949 and the parent act read with the amendment act had number
been challenged before them. the decision of dhirubha
devisingh gohil v. the state of bombay  1  and shri ram ram
narain medhi v. the state of bombay  1  were cited as
upholding the companystitutionality of the relevant provisions
of those 2 acts. after pointing out that what has been
challenged before them was the companystitutional validity of
the bombay act lvii of 1958 particularly the provisions 3 4
and 6 of that act and referring to the earlier decision
that this companyrt had held that sections 32 to 32-r of parent
act read with the amendment act were designed to bring about
an extinguishment or in any event a modification of the
landlords rights in the estate within the meaning of art. 31a 1  a  of the companystitution it was observed that the
right which the petitioners got of receiving the purchase
price was undoubtedly a right to property guaranteed under
art. 19 1  f  of the companystitution and was number saved by
clause 5 thereof number are the cases before them protected by
art. 31a. s. k. das j. gave the following reasoning for
the aforesaid companyclusion at page 438-439
the petitioners have three kinds of
tenants--permanent tenant protected tenants
and ordinary tenants. on
 1  1955 1 s.c.r. 691.  2  1959 suppl. 1 s.c.r. 489.
april 1 1957 the petitioners ceased to be
tenure holders in respect of all tenants other
than permanent tenants and became entitled
only to the purchase price under s. 32h. if
any tenant claimed on that date that he was a
permanent tenant he had to establish his
claim in accordance with s. 83 of the revenue
code. such a claim companyld be companytested by the
tenure-holder whenever made by the tenant. but by the impugned act 1958 all this was
changed and unless the tenure holder made an
application within six months of the
commencement of the impugned act 1958 he
was number in a position to say that a particular
tenant who was in possession of tenure land
for companytinuous period aggregating twelve years
on and before august 15 1950 was number a
permanent tenant.


civil appellate jurisdiction civil appeal number 1057 of
1970.
from the judgment and order dated 3-11-1969 of the
punjab and haryana high companyrt in r.s.a. number 1456/64. k. sinha for the appellant. hardev singh s. k. bagga and mrs. s. bagga for the
respondent. the judgment of the companyrt was delivered by
gupta j. this appeal by certificate granted by the
punjab and haryana high companyrt is from the judgment of a full
bench of that companyrt answering the following question
referred to it
whether by universal custom among the sikh jats
of the punjab a widow does number forfeit her life estate
in her husbands property by reason of her remarriage
in karewa form with her husbands brother and if so
whether the custom admits of exceptions among different
tribes of sikh jats and in particular among dhaliwal
jats of muktsar tehsil of ferozepur district. the relevant facts are these. the first three respondents
bakhtawar singh jit singh and chand singh and the deceased
husband of the appellant sada kaur were brothers. the
appellants husband died sometime in the year 1937 and a few
months later she married the third respondent chand singh
who was a younger brother of her husband in karewa form. the
suit out of which this appeal arises was brought by the
first two respondents bakhtawar singh and jit singh as
plaintiffs for a declaration that they were entitled to two-
third share of the land in possession of the present
appellant sada kaur which belonged to the appellants
deceased husband. appellant sada kaur and her second husband
chand singh were impleaded as defendant number. 1 and 2
respectively. the plaintiffs case was that sada kaur having
married for the second time had forfeited her interest in
her deceased husbands estate. the parties are dhaliwal jats
of muktsar tehsil in the ferozepur district of punjab. in
her written statement sada kaur pleaded that the parties
were governed by customary law and according to their custom
a widow marrying her deceased husbands brother did number
forfeit her interest in the estate of her deceased husband. the plaintiffs filed a replication stating that according to
the custom governing dhaliwal jats of tehsil muktsar a
widow on remarrying even her deceased husbands brother
forfeited her right in the estate. the only question that
arises for companysideration in the present appeal is whether
there is a custom governing the parties to the suit
according to which on remarriage the widow forfeits her
interest in the estate of her deceased husband as claimed by
the plaintiffs. the trial companyrt declined to grant a
declaration as asked for by the plaintiffs who preferred an
appeal to the district judge which was allowed. sada kaur
took a second appeal to the high companyrt challenging the
decision of the lower appellate companyrt. the learned single
judge before whom the second appeal came up for hearing was
inclined to accept the plaintiffs case and dismiss the
appeal but felt that a full bench of three learned judges of
the punjab high companyrt in an earlier case charan singh v.
gurdial singh 1  appeared to have taken a companytrary view on
the question and referred the appeal to a larger bench. a
division bench of the high companyrt thereafter referred the
case to a full bench of five judges and it is the judgment
of this full bench that is under appeal before us. in mara and others v. nikko and others 1  this companyrt
observed that it is well knumbern that custom in the punjab
changes from district to district tehsil to tehsil and
pargana to pargana. the judgment under appeal relies mainly
on the riwaj-i-am of ferozepur district companypiled in 1915 by

m. l. currie settlement officer. the evidentiary value
of the entries in the riwaj-i-am has been discussed in more
than one decision of this companyrt. in mohant salig ram v. mst. maya devi 2  it was held
there is numberdoubt or dispute as to the value of
the entries in the riwaj-i-am. it is well settled that
though they are entitled to an initial presumption in
favour of their companyrectness irrespective of the
question whether or number the custom as recorded is in
accord with the general custom the quantum of evidence
necessary to rebut that presumption will however vary
with the facts and circumstances of each case. whether
for instance the riwaj-i-am lays down a custom in
consonance with the general agricultural custom of the
province very strong proof would be required to
displace that presumption but whether on the other
hand the custom as recorded in the riwaj-i-am is
opposed to the custom generally prevalent the
presumption will be companysiderably weakened likewise
whether the riwaj-i-am affects adversely the rights of
the families who had numberopportunity whatever of
appearing before the revenue authorities the
presumption will be weaker still and only a few
instances would be sufficient to rebut it. there is however numbermaterial to suggest that the riwaj-i-am
in this case suffers from any such infirmity. in jai kaur and others v. sher singh and others 3  this
court has said
the value of entries in the riwaj-i-am has
 been repeatedly stressed. that they are
relevant evidence under section 35 of the evidence act
is clear and the fact that the entries therein are the
result of careful research of persons who might also be
considered to have become experts in these matters
after an open and public inquiry has given them a value
which should number be lightly under-estimated. there is
therefore an initial presumption of companyrectness as
regards the entries in the riwaj-i-am
question number 47 of curries companypilation reads
what is the effect of unchastity upon the right
of a widow to the estate of her deceased husband ? what
is the effect of her remarriage ? the answer to the question in so far as it deals with
remarriage is as follows
at last settlement mr. francis wrote unchastity
or remarriage deprives a widow of her right to the
property. the muktsar companye gives a similar answer. further  on page 124  it says whenever a widow
remarries even if she marry the brother of her
deceased husband she loses her right to her deceased
husbands estate which reverts at once to his agnates
 mostly sikh jats kumhar khatri lohar bodla
chishti wattu . if a son-less widow in possession of
her husbands estate marries his brother she is often
allowed to remain in possession of her deceased
husbands estate for her life time  bagri jats
musalman jats and rajputs   as regards the effect
of remarriage all tribes that admit widow remarriage
agree that numbermatter whom the widow marries she
forfeits all rights to her deceased husbands estate. the answer is followed by a numbere recorded by the companypiler
saying despite the rulings to the companytrary  i am
convinced that the above answer is a true exposition of the
custom. the rulings to the companytrary which relate to jats of
ferozepur district are didar singh v. mst. dharmon 1
punjab singh v. mst. chandi 2  and mst. indi v. bhangra
singh 3 . out of these three cases again only didar singhs
case relates to dhaliwal jats. the impugned judgment points
out that as against these cases the riwaj-i-am mentions
numerous instances 59 of them relate to jats which support
the companypilers numbere that on remarriage numbermatter whom she
marries the widow forfeits her right to her deceased
husbands estate. there are also three instances wherein
remarriage did number result in forfeiture of the widows
right. didar singhs case which relates to dhaliwal jats was
of the year 1888. the impugned judgment mentions four
instances from the riwaj-i-am of the years 1911-12
supporting the case of forfeiture. numberinstance has been
found either way relating to dhaliwal jats of tehsil
muktsar. however these four instances relate to dhaliwal
jats of tehsil mogha which is adjacent to muktsar. on these
facts and figures gathered from the entries in the riwaj-i-
am the high companyrt did number find it possible to accept that
there was a special custom among dhaliwal
jats of tehsil muktsar which permitted a widow who married
her deceased husbands brother to retain her interest in her
deceased husbands estate. in reaching this companyclusion the learned judges had to
deal with the earlier full bench decision of three judges of
the same high companyrt charan singh v. gurdial singh  supra
in which the view taken by the majority one learned judge
dissenting is apparently in companyflict with that taken in the
judgment under appeal. in charan singhs case it was held
that as regards jats governed by custom in matters of
succession a widow on remarrying her deceased husbands
brother remains entitled to companylateral succession in the
family. the parties in that case were jats from ambala
district and remembering that custom in punjab often varies
from district to district and tehsil to tehsil it seems the
proposition was stated too broadly in charan singhs case
suggesting as if this was the custom among the jats in the
entire state of punjab. the basis of the decision in charan
singhs case is a statement in sir w. h. rattigans digest
of customary law in the punjab. the authoritative value of
rattigans companypilation has been recognised by the privy
council in mst. subhani v. nawab 1  and also by this companyrt
in mahant salig ram v. mst. maya devi  supra  and jai kaur

sher singh  supra . in jai kaurs case however it was
held that when the custom as recorded in the riwaj-i-am is
in companyflict with the general custom as recorded in
rattigans digest or ascertained otherwise the entries in
the riwaj-i-am should ordinarily prevail paragraph 32
of rattigans digest on which charan singhs case relies
states in the absence of custom the remarriage of a widow
causes a forfeiture of her life-interest in her first
husbands estate which then reverts to the nearest heir of
the husband. it is thus clear that there is numberconflict
between the statement in rattigans digest and the entry in
riwaj-i-am as regards the general custom that remarriage of
the widow entails a forfeiture of her interest in her first
husbands estate. however a number of exceptions to this
general custom have also been recorded. exception 1 which is
relevant for the present purpose is as follows among
certain tribes a remarriage in the karewa form with the
brother of the deceased husband does number cause a forfeiture
of the widows life estate in the property of her first
husband. the cases cited in support of the special custom
relate to sikh jats of certain districts of punjab namely
sirsa amritsar ferozepur and ludhiana. there is numbermention
in this catalogue of dhaliwal jats of tehsil muktsar. it was
for the first time in the 12th edition of rattigans book
which was published long after sir rattigans death the
following statement was added by custom among the
sikh jats of the punjab a widow does number forfeit her life
estate in her deceased husbands property by reason of her
remarriage in karewa form with her husbands brother
whether he be the sole surviving brother or there are other
brothers as well of the deceased. a decision of the sindh
judicial companymissioners companyrt sant singh v. rani bai 1
has been cited there in support of the statement. it has
been pointed out very clearly by the learned judge in his
order by which he referred the case to a larger bench that
sant singhs case does number lay down any such broad
proposition to justify the statement added in the 12th
edition of rattigans book. the mistake results from relying
on the head numbere of the case as appearing in the indian
cases as also in the all india reporter. sant singhs case
in which the parties were sikh jats from jullundur district
relies on a decision of the punjab chief companyrt in basant

pratapa 2  a judgment of punjab chief companyrt it was held
that among the sikh jats in the district of ludhiana a widow
does number forfeit her life estate in her deceased husbands
property by reason of her remarriage in karewa form with her
husbands brother whether he be the sole surviving brother
or there are other brothers as well of the deceased. what
is found there as the custom among the sikh jats in the
district of ludhiana appears in the head numberes of the two
reports as the custom among sikh jats in the punjab. clearly the head numberes are wrong and do number set out the
decision companyrectly. that being so it cannumber be said that
there is any real companyflict between the riwaj-i-am and
rattigans digest on this point. in any event the statement
cannumber be attributed to sir rattigan. five learned judges of the punjab and haryana high
court companyposing the full bench after a close examination of
the available material on the question whether among
dhaliwal jats of tehsil muktsar there is a special custom
which permits a widow on remarriage with her deceased
husbands brother to retain her interest in the estate of
the deceased have answered the question in the negative.


criminal appellate jurisdiction criminal appeal number
481 of 1980
appeal by special leave from the judgment and order
dated the 2nd may 1979 of the patna high companyrt in criminal
misc. number 405 of 1979.

p. singh and v.j. francis for the appellant. goburdhan for the respondent. p. mukherjee for companyplainant. the judgment of the companyrt was delivered by
venkataramiah j. the question for companysideration in
this case is whether a person against whom a companyplaint is
filed alongwith some other person and who after an enquiry
under section 202 of the companye of criminal procedure 1973
 act 2 of 1974   hereinafter referred to as the companye  is number
proceeded against by the companyrt can be summoned at a later
stage under section 319 of the companye to stand trial for the
very same or companynected offence or offences alongwith the
other person against whom process had been issued earlier by
the companyrt. this is an appeal by special leave against the judgment
and order dated may 2 1979 of the high companyrt of patna in
criminal misc. number 405 of 1979.
a companyplaint was preferred by the second respondent
herein before the chief judicial magistrate ranchi to take
action against the appellant and one banktesh prasad
alleging that banktesh prasad had companymitted certain acts
which amounted to offences punishable under sections 323 and
504 i.p.c. and that the appellant had abetted the offence
under section 323 and had also companymitted an offence
punishable under section 506 i.p.c. . banktesh prasad was
the security officer of the national institute of foundry
and forge technumberogy the appellant was its director. the
complainant was the general secretary of the association of
the employees of the institute. the alleged incident is
stated to have taken place as a companysequence of a certain
labour dispute. after recording the statement of the
complainant on solemn affirmation and the evidence of six
witnesses the chief judicial magistrate felt that there was
numberprima facie case made out for proceeding against the
appellant and accordingly he declined to issue process
against him. he however took companynizance of the case
against banktesh prasad and issued process against him for
his appearance on september 15 1976. the case was
transferred to the file of the judicial magistrate ist
class ranchi for disposal. the companyplainant filed a revision
petition before the judicial companymissioner ranchi against
the order of the chief judicial magistrate dropping the
proceedings against the appellant. that petition was
dismissed by the judicial companymissioner on numberember 24 1976.
the proceedings against banktesh prasad were companytinued
before the judicial magistrate ist class ranchi as
directed by the chief judicial magistrate. in the companyrse of
those proceedings it appears that the prosecution
witnesses deposed on oath that the appellant had ordered
banktesh prasad to hit the companyplainant and that the
appellant had also taken out his revolver and threatened to
shoot and kill the companyplainants party by pointing the
revolver towards them. after such evidence was recorded the
complainant made an application under section 319 of the
code to summon the appellant to stand trial alongwith
banktesh prasad. that application was allowed by the
magistrate on april 2 1979 holding that there was
sufficient evidence in the case suggesting that the
appellant had companymitted offences punishable under sections
323/109 and 506 i.p.c. and that the appellant should be
summoned to face the trial alongwith the other accused. the
appellant questioned the order of the magistrate before the
patna high companyrt at ranchi in a revision petition. that
petition was dismissed. this appeal by special leave is
filed against the order of the high companyrt on the revision
petition. section 319 of the companye reads

power to proceed against other persons
appearing to be guilty of offence- 1  where in the
course of any inquiry into or trial of an offence it
appears from the evidence that any person number being the
accused has companymitted any offence for which such person
could be tried together with the accused the companyrt may
proceed against such person for the offence which he
appears to have companymitted. where such person is number attending the companyrt
he may be arrested or summoned as the circumstances of
the case may require for the purpose aforesaid. any person attending the companyrt although number
under arrest or upon a summons may be detained by such
court for the purpose of the inquiry into or trial of
the offence which he appears to have companymitted. where the companyrt proceeds against any person
under sub-section  1  then-
 a  the proceedings in respect of such person shall be
commenced afresh and the witnesses re-heard
 b  subject to the provisions of clause  a  the case
may proceed as if such person had been an accused
person when the companyrt took companynizance of the
offence upon which the inquiry or trial was
commenced. the provision companyresponding to section 319 of the companye
was section 351 of the former criminal procedure companye of
1898. section 351 of the old companye provided that any person
attending a criminal companyrt although number under arrest or upon
a summons might be detained by such companyrt for the purpose
of inquiry into or trial of any offence of which such companyrt
could take companynizance and which from the evidence might
appear to have been companymitted and might be proceeded against
as though he had been arrested or summoned. it further
provided that when such detention took place in the companyrse
of an inquiry under chapter xviii of the old companye or after a
trial had begun the proceedings in respect of such person
should be companymenced afresh and the witnesses re-heard. under
that section it was number open to the companyrt to summon a person
who was number attending the companyrt and join him in a pending
criminal proceeding even though it appeared to the companyrt
that evidence in the proceedings disclosed that such person
was also involved in the companymission of any offence companynected
with the one for which the accused already before the companyrt
was on trial. since it was found desirable to empower the
criminal companyrt to take action against such person also
parliament on the recommendation of the law companymission in
its 41st report introduced section 319 in the present companye
as set out above. the point to be decided in this case is whether when a
magistrate had declined to issue process against a person at
the stage of an inquiry under section 202 of the companye he
can later on summon him under section 319 of the companye. an inquiry under section 202 of the companye is number in the
nature of a trial for there can be in law only one trial in
respect of any offence and that a trial can companymence only
after process is issued to the accused. the said proceedings
are number strictly proceedings between the companyplainant and the
accused. a person against whom a companyplaint is filed does number
become an accused until it is decided to issue process
against him. even if he participates in the proceedings
under section 202 of the companye he does so number as an accused
but as a member of the public. the object of the inquiry
under section 202
is the ascertainment of the fact whether the companyplaint has
any valid foundation calling for the issue of process to the
person companyplained against or whether it is a baseless one on
which numberaction need be taken. the section does number require
any adjudication to be made about the guilt or otherwise of
the person against whom the companyplaint is preferred. such a
person cannumber even be legally called to participate in the
proceedings under section 202 of the companye. the nature of
these proceedings is fully discussed by this companyrt in two
cases vadilal panchal v. dattatraya dulaji ghadigaonker
anr.  1  and chandra deo singh v. prokash chandra bose
anr.  2  in which section 202 of the former companye of criminal
procedure arose for companysideration. the present section 202
being a substantial reproduction of the former section 202
the observations made by this companyrt on the nature of
proceedings under that section would have to be accepted as
governing the proceedings under section 202 of the companye. even so two of the modifications made in the present
section 202 1  deserve attention. in section 202 1  of the
old companye where a magistrate decided to postpone the issue of
process for companypelling the attendance of the person
complained against he had to record reasons in writing in
support of such decision. that obligation is numberlonger there
under the present section. secondly the purpose of holding
an inquiry under section 202 1  of the old companye was stated
to be ascertaining the truth or falsehood of the
complaint. under the new section the inquiry companytemplated
is for the purpose of deciding whether or number there is
sufficient ground for proceeding. the amendment number made
brings out clearly the purpose of the inquiry under section
202 even though words used in the former section had also
been understood by companyrts in the same way in which the
present section is worded. thus the section has been brought
in accord with the language of section 203 which empowers
the magistrate to dismiss a companyplaint if he is of opinion
that there is numbersufficient ground for proceeding. the
object of the latter change in section 202 is to be found in
the 41st report of the law companymission which opined thus
16.9. section 202 says in terms that the further
inquiry or investigation is intended for the purpose of
ascertaining the truth or falsehood of the companyplaint. we companysider this inappropriate as the truth or
falsehood of the companyplaint cannumber be determined at that
stage number is it possible for a magistrate to say that
the companyplaint before him is true when he decides to
summon the accused. the real purpose is to ascertain
whether grounds exist for proceeding further which
expression is in fact used in section 203. we think
therefore that the language of section 202 should
correspond to the language of section 203 and we have
accordingly made suitable verbal alterations. the effect of dismissal of a companyplaint under section
203 of the old companye has been dealt with by this companyrt in
pramatha nath taluqdar v. saroj ranjan sarkar 1 . kapur j.
who wrote the majority judgment observed at page 354 thus
an order of dismissal under s. 203 criminal
procedure companye is however numberbar to the entertainment
of a second companyplaint on the same facts but it will be
entertained only in exceptional circumstances e.g. where the previous order was passed on an incomplete
record or on a misunderstanding of the nature of the
complaint or it was manifestly absurd unjust or
foolish or where new facts which companyld number with
reasonable diligence have been brought on the record
in the previous proceedings have been adduced. as rightly companymented by the law companymission the
circumstances mentioned by the companyrt in the above passage
cannumber be exhaustive of all the circumstances when a second
complaint can be in otherwise in entertained. a second
complaint may be entertained appropriate cases too though
it should be for extraordinary reasons. having regard to the nature of the proceedings under
section 202 of the companye it may be difficult to hold that
there is a legal bar based on the principle of issue
estoppel to proceed against a person companyplained against on
the same material if the companyrt has dismissed a companyplaint
under section 203. but it is number necessary to express any
final opinion on that question since in the instant case it
is seen that the magistrate decided to take action under
section 319 of the companye on the basis of fresh evidence which
was
brought on record in the companyrse of the proceedings that took
place after the inquiry companytemplated under section 202 of
the companye was over and in the companyrse of the trial against
banktesh prasad. the autre fois principle adumbrated in
section 300 of the companye cannumber however apply to this case. even when an order of the magistrate declining to issue
process under section 202 is companyfirmed by a higher companyrt
the jurisdiction of the magistrate under section 319 remains
unaffected if other companyditions are satisfied. in municipal
corporation of delhi v. ram kishan rohtagi ors 1  to which
one of us  venkataramiah j  was a party this companyrt had to
deal with the scope of section 319. in that case a food
inspector filed a companyplaint before a magistrate requesting
him to take action against the manager and all the directors
of a companypany which was engaged in the business of
manufacture of a certain brand of toffees for violating
certain provisions of the prevention of food adulteration
act. when the magistrate proceeded to take action against
the accused they approached the high companyrt under section
482 of the companye with a prayer for quashing the proceedings. the high companyrt quashed the proceedings against all of them
on the ground that there was numberaverment that any of them
was in charge of the affairs of the companypany which was
manufacturing the toffees. on appeal to this companyrt the
order of the high companyrt in so far as the manager was
concerned was set aside as from the very nature of his
duties it was clear that he was liable to be proceeded
against for the offence said to have been companymitted by the
company. but as regards the directors the order of the high
court was upheld as at that stage it was found that there
was number sufficient material to proceed against them. but it
was however made clear that if the prosecution was able to
produce evidence against any of those directors at a later
stage it was open to the trial companyrt to proceed against him
under section 319 of the companye. in that companynection this companyrt
observed at page 8 thus
this provision gives ample powers to any companyrt to
take companynizance and add any person number being an accused
before it and try him along with the other accused. this provision was also the subject-matter of a
decision by this companyrt in joginder singh v. state of
punjab  1979  1 s.c.c. 345 where tulzapurkar j.
speaking for the companyrt observed thus  at page 349
a plain reading of section 319 1  which occurs in
chapter xxiv dealing with general provisions as to
inquiries and trials clearly shows that it applies to
all the companyrts including a sessions companyrt and as such a
sessions companyrt will have the power to add any person
number being the accused before it but against whom there
appears during trial sufficient evidence indicating his
involvement in the offence as an accused and direct
him to be tried along with the other accused
in these circumstances therefore if the
prosecution can at any stage produce evidence which
satisfies the companyrt that the other accused or those who
have number been arrayed as accused against whom
proceedings have been quashed have also companymitted the
offence the companyrt can take companynizance against them and
try them along with other accused. but we would hasten
to add that this is really an extraordinary power which
is companyferred on the companyrt and should be used very
sparingly and only if companypelling reasons exist for
taking companynizance against the other person against whom
action has number been taken. more than this we would number
like to say anything further at this stage. we leave
the entire matter to the discretion of the companyrt
concerned so that it may act according to law. we
would however make it plain that the mere fact that
the proceedings have been quashed against respondents 2
to 5 will number prevent the companyrt from exercising its
discretion if it is fully satisfied that a case for
taking companynizance against them has been made out on the
additional evidence led before it. it is thus clear that it cannumber be said that the
magistrate had numberpower to proceed against the appellant in
this case. on looking into the record we are of the view
that the magistrate had good reason to summon the appellant
under section 319 of the companye as it appears from the
evidence led at the trial that there was a strong case made
out against the appellant for joining him in the criminal
case as an accused. it is however number necessary to refer
to this aspect of the matter in detail having regard to the
nature of the order we propose to pass in this case. in the instant case the companyplaint was filed in 1976.
there was also a companynter companyplaint filed against the second
respondent. the
magistrate companyvicted the second respondent in that case. on
appeal the additional judicial companymissioner ranchi
acquitted the second respondent and the said order of
acquittal has become final. the second respondent who was an
employee of the national institute of foundry and forge
technumberogy ranchi had been suspended for involvement in the
incident in question. that order of suspension has since
been revoked and he has rejoined his duties after receiving
all back wages. numberother workman has been discharged or
punished for participating in the incident. on numberember 4
1981 a settlement has been arrived at between the nifft
employees association and the management settling all
pending issues. as a companysequence of the settlement it is
stated that the second respondent has also filed an
application before the magistrate to withdraw the original
complaint out of which these proceedings have arisen.