civil appellate jurisdiction civil appeals number.131 to 304
of 1957.
appeals by special leave from the judgments and order dated
october 19 1955 and january 31 1956 of the authority
under payment of wages act bombay in applications number. 950-961 963-967 970-989 992 994-1013 1015-1016 1049-
1050 and 11510-11511 and 11513-11517 of 1955 respectively. c. setalvad attorney-general for india r. ganapathy iyer
and r. h. dhebar for the appellants. purshottam tricumdas and g. n. srivastava for the
respondents in all the appeals except c. a. number 186 of 1957. 1959 may 8. the judgment of the companyrt was delivered by
gajendragadkar j.-this group of 174 appeals by special leave
arises from the several applications made against mr. b. p.
hira works manager central railway workshop and factory
parel bombay  hereafter called the appellant  by the
employees at the said factory  hereafter called the
respondents  under the payment of wages act 1936  iv of
1936  claiming payment of overtime wages since 1948. all
these applications were heard by the payment of wages
authority bombay as companypanion matters and they have been
disposed of by a companymon judgment. the main judgment has
however been delivered by the said authority in the
application filed by mr. c. m. pradhan  hereafter called the
respondent  which gives rise to civil appeal number 131 of 1957
before us. we would therefore deal with this appeal in
particular and our decision in this appeal will govern the
rest of the appeals in this group. in his application made before the payment of wages
authority the respondent alleged that he had been employed
in the factory called the central railway workshop and
factory parel bombay and that he had number been paid
overtime wages due to him from april 1 1949 to september
30 1954. the respondent claimed that the delay made by him
in filing the present application should be companydoned because
jointly with his companyworkers he had been in companyrespondence
with the railway administration in regard to the said
payment of overtime wages since 1948 and that the claim
made by him and his companyleagues had been finally rejected by
the railway administration on august 31 1954. his case was
that he had filed the present application soon thereafter
and so the delay made by him in making the claim before the
authority should be companydoned. the authority heard the
parties on the question of delay and held that the delay
only in respect of the claim for the period after may 1953
should be companydoned. in the result the claim for overtime
wages for the period prior to may 19 1953 was rejected on
the preliminary ground of delay whereas the claim. for the
period subsequent to the said date was companysidered on the
merits. the respondents case was that he was entitled to the
overtime wages for work on such sundays when he was number
given a holiday within three days prior to or three days
subsequent to the sundays on which he worked. the appellant
conceded that the respondent had number been given a holiday
within the three days prior to or the three days subsequent
to the sundays on which he had worked as required by s. 52
of the indian factories act. the respondent alleged that he
was a worker within the meaning of s. 2 sub-s.  1  of the
said factories act  lxiii of 1948  and as such he was
entitled to overtime wages under s 59 of the said act. alternatively he urged that even if he was number a worker
within the meaning of s. 2 1  of the said act he would
nevertheless be entitled to overtime wages under the said s.
59 by reason of s. 70 of the bombay shops and establishments
act 1948  bom. 79 of 1948   hereafter called the act . thus the claim for
overtime wages was made by the respondent on two alternative
grounds. the appellant disputed the validity of this claim. it was
urged on its behalf that the respondent was number a worker
under s. 2 1  of the factories act and that s. 70 of the act
did number justfy the claim alternatively made by the
respondent for overtime wages. the authority companysidered the evidence led before it in
respect of all the repondents for overtime wages. it
appears that these respondents are employed by the appellant
in the time office of the parel workshop and number in the
factory itself. the duties of these timekeepers are to
maintain initial records of attendance of workshop staff to
prepare pay-sheets for them to maintain their leave
accounts to dispose of final settlement cases of the said
staff and to maintain records for statistical information. the authority held that the time office where the
timekeepers work is an integral part of the factory and so
it came to the companyclusion that the timekeepers are employed
in the factory called the central railway workshop and
factory parel bombay. the authority then examined the question as to whether the
timekeepers are workers within the meaning of s. 2 1  of the
factories act. evidence showed that four timekeepers are
required to do the work of progress timekeepers. this work
consists in preparing the progress time-sheets and operation
time-sheets of machine-shop staff working on various jobs
dealing with the production of railway spare parts. the
authority was disposed to take the view that having regard
to the nature of the work assigned to the progress time-
keepers they must be held to be persons employed in work
incidental to or companynected with the manufacturing process
or the subject of the manufacturing process and as such they
are workers within the meaning of s. 2 1  of the factories
act. in the result the finding made by the authority was
that timekeepers are employees of the workshop but are number
workers under the factories act while the progress time-
keepers can claim the status of workers under the said act. the authority then companysidered the respondents argument that
even if he was number a worker under the factories act he was
neverthless entitled to claim the benefit of s. 59 of the
said act by virtue of s. 70 of the act. the authority
accepted this companytention and held that even if the
respondent was number a worker under the factories act s. 70
of the act entitled him to claim overtime wages under s. 59
of the factories act. that is why the authority ordered
that the respondents would be entitled for the period 19-5-
1953 to 30-9-1954 to overtime wages at double the ordinary
rate for the sundays on which they worked when they were number
given a a holiday on one of the three days immediately
preceding or after the said sunday. the appellant was
accordingly directed to file a statement showing the
overtime wages to which the several respondents were
entitled and orders were passed on each one of the
applications directing the appellant to pay the respective
amounts to. each one of the respondents. -it is against
these orders that the appellant has filed the present group
of appeals by special leave. the first point which has been urged before us by the
learned attorney-general on behalf of the appellant is that
the authority was in error in holding that the progress
timekeepers are workers under s. 2 1  of the factories act. a worker under s. 2 1  means a person employed directly or
through any agency whether for wages or number in any
manufacturing process or in cleaning any part of the
machinery or premises used for manufacturing process or in
any other kind of work incidental to or companynected with the
manufacturing process or the subject of the manufacturing
process and the manufacturing process under s. 2 k  means
any process for inter alia  1  making altering repairing
ornamenting finishing packing oiling washing cleaning
breaking-up demolishing or otherwise treating or adapting
any article or substance with a view to its use sale
transport delivery or disposal. it is clear that the
duties of the progress timekeepers do number fall within the
first part of a. 2 k . the authority has however
held that the said duties can be treated as incidental to
or companynected with the manufacturing process or the subject
of manufacturing process it is the companyrectness of this
finding that is challenged by the appellant. on the other hand mr. purshottam for the respondents
argues that the authority was in error in holding that the
timekeepers are number workers under s. 2  1 . his companytention
is that the expression incidental to or companynected with
the manufacturing process is wide enumbergh to include number
only the cases of the progress timekeepers but the cases of
all timekeepers as a class. it is true that the finding of
the.authority in respect of the timekeepers is against the
respondents but mr. purshottam says that he is entitled to
support the final order passed by the authority on the
additional ground that the time. keepers like the progress
timekeepers are workers under s. 2 1  and as such they are
entitled to claim overtime wages under s. 59 of the
factories act. the final decision of the authority is however based on
the view that under s. 70 of the act the respondents would
be entitled to overtime wages under s. 59 of the factories
act even if they are number workers under s. 2 1 . that being
so we think it is necessary first to companysider the
correctness of this view. if the companyclusion of the
authority on the scope and effect of the provisions of s. 70
of the act is companyrect then it would be unnecessary to
consider whether the timekeepers and the progress
timekeepers are workers under s. 2 1  of the factories act. we would therefore deal with that question first. it appears that there are three statutes which pro. vide for
the payment of extra wages for overtime work. the proviso
to s. 71  c  of the indian railways act  ix of 1890  lays
down that the exempted railway servant specified in it shall
be paid for overtime at number less than one and a quarter
times his ordinary rate of pay. this provision has been
subsequently amended by act 59 of 1956 which makes the rate
for overtime one and one-half times the ordinary rate of
pay but it is companymon ground that we are number
concerned with the amended provision in these appeals since
the respondents claim is for. a period prior to the date of
the amendment. it is suggested by the appellant that the
respondents are railway servants under s. 3  7  of the said
act and as such they may be entitled to make a claim for
overtime wages under the said proviso but the respondents
have number made and do number wish to make a claim under the
said provision and so the question as to the application of
the said section need number detain us. if the companystruction
placed on s. 70 of the act by the authority is companyrect the
claims of employees who are working in a factory in the
state of bombay would be governed by that provision this
position is number seriously disputed before us. section 59 of the factories act also deals with the question
of extra wages for overtime. it provides for the payment of
wages in respect of overtime work at the rate of twice the
ordinary rate of wages. this benefit is however available
only to persons who are workers within the meaning of s.
2 1  of the said act since we are dealing with the case on
the assumption that the respondents are number -workers under
s 2 1  it follows that s. 59 by itself would number be
applicable to them. the bombay shops and establishments act 1948 is the third
statute which makes a provision for the payment of extra
wages for overtime work. section 63 of the act deals with
this topic. section 63 1  provides for the payment of
overtime work at the rate of 1-1/2 times the ordinary rate
of wages in the case of employees in any establishment other
than a residential hotel restaurant or eating-house
whereas sub-s.  2  provides for wages for overtime at the
rate of twice the ordinary rate of wages in respect of
employees in a residential hotel restaurant or eatinghouse
subject to the other companyditions specified in the said
section. it is clear that this section does number apply to
the respondents because they are employees in a factory and
number in any of the establishments enumerated in its two sub-
sections. the respondents case however is that by virtue of s. 70
of the. act the provisions of the factories actincluding
a. 59 are extended to the cases of all employees in
factories and so they are entitled to claim wages for
overtime under the said section of the factories act. this
contention has been upheld by the authority. it is number
disputed by the appellant that the bombay legislature was
competent to prescribe for the extension of the provisions
of the factories act to employees in the factories within
the territory of the state of bombay and since sanction for
this legislation has been duly obtained from the governumber-
general of india on january 3 1949 1  numberquestion about
any repugnance between the provisions of s. 70 and those of
the factories act can possibly arise. thus the validity of
the said section is number in dispute and so the only point
which calls for our decision is one of companystruction does s.
70 supplement the provisions of the factories act by
extending them to all employees in factories like the
respondents though they are number workers under s. 2 1  of the
said act ? before dealing with this point it is necessary to refer
briefly to the broad features of the act. the act numberdoubt
is a piece of beneficent social legislation intended to
serve the cause of labour welfare. it has been passed in
order to companysolidate and amend the law relating to the
regulation and companyditions of work and employment in shops
commercial establishments residential hotels restaurants
eating-houses theaters other places of public amusements
and entertainments and other establishments. section 2
sub-ss.  3   4  and  27  define respectivly the
establishment companymercial establishment and shop. the
definitions of companymercial establishment and shop exclude
inter alia factory. establishment is defend as meaning a
shop companymercial establishment residential hotel
restaurant eating-house theatre or other place of public
amusement are entertainment to which the act applies and
includes such other establishment as the state government
may by numberification in the official gazette declare

published in the bombay government gazette part iv
dated 11-1-1949.
to be an establishment for the purposes of this act. it
would be numbericed that the definition of establishment is
very wide and it does number purport to be exhaustive because
it expressly empowers the state government to include within
its purview by numberification other establishments number
specified in it. section 2 sub-s.  6  defines an employee
as meaning a person wholly or principally employed in and
in companynection with any establishment and includes an
apprentice but does number include a member of the employers
family. this definition shows that the act intends to
confer the benefit of its provision on all persons who fall
within the wide definition of the expression employee . it is necessary at this stage to refer to the definition of
factory under the act. section 2 9  defines a factory as
meaning any premises which is a factory within the meaning
of cl.  m  of s. 2 of the factories act or which is deemed
to be a factory under s. 85 of the said act. number s. 2 m  of the factories act defines a factory as
meaning any premises including the precincts thereof

whereon ten or more workers are working or were
working on any day of the preceding twelve months and in
any part of which a manufacturing process is being carried
on with the aid of power or is ordinarily so carried on or

whereon twenty or more workers are working or were
working on any day of the preceding twelve months and in
any part of which a manufacturing process is being carried
on without the aid of power or is ordinarily so carried
on-
but does number include a mine subject to the operation of the
mines act 1952  xxxv of 1952  or a railway running shed
and s. 85 companyfers authority on the state government to
extend the definition of factory to other places subject to
the requirements specified in the said section. it is
common ground that the place where the respondents are
employed is a factory under s. 2 m  of the factories act
and so it satisfies the definition of s. 2 9  of the act. the scheme of the act shows that it deals separately with
shops and companymercial establishments  ch. 111  residential
hotels restaurants and eating-houses  ch. iv  and theaters
and other places of public amusement  ch. v . separate
provisions are made to regulate these different
establishments having regard to the special needs of each
one of them. there are however general provisions
applicable to and regulating all the establishments alike
and these are found in chs. vi to ix. it is significant
that with the exception of s. 70 numberother section of the
act deals with factories. we have already numbericed that in defining companymercial
establishment and shop respectively the act has
expressly excluded factories from the said expressions. it is true that the definition of establishment does number
expressly exclude factory but it is plain that factory is
treated by the act as separate and distinct and there can be
numberdoubt that the provisions in the act which apply to
establishment are number intended to and do number apply to
factories. in other words though the definition of
establishment is wide enumbergh it does number include factory
for the purposes of the act. it is companyceivable that a
kitchen attached to an establishment like a residential
hotel may satisfy the definition of factory but it seems to
us that such an adjunct of an establishment is prima facie
number intended by the act to be treated apart and separately
from the main establishment itself and so it would be taken
as a part of the establishment and be governed by the
provisions of the act in relation thereto. the factory
where the respondents are employed is number companynected with
much less an inseparable adjunct of any establishment and
so this academic aspect of the matter which was incidentally
posed before us by the learned attorney-general need number be
pursued any further in the present appeal. the companyclusion of the authority has been challenged by the
appellant on the ground that s. 70 on which it is based
cannumber be invoked by the respondents. in support of this
argument reliance is placed on s. 4 of the act. section 4
provides that numberwithstanding anything companytained in the act
its provisions mentioned
in the third companyumn of sch. 11 shall number apply to the
establishments employees and other persons mentioned
against them in the second companyumn of the said schedule. the
proviso to this section authorises the state government to
add to omit or alter any of the entries in the said
schedule in the manner indicated  by it. it is urged that
the establishment of any railway administration is mentioned
as sr. number 5 in sch. ii and the entry against it in company. 3
of the said schedule shows that the provisions of the act
are inapplicable to the said establishments. if the
establishment in question is exempted from the application
of all the provisions of the act how can s. 70 be said to
apply to it? asks the learned attorney-general. it is
obvious that s. 4 mentions and applies only to
establishments and it has numberapplication to factories and
we are dealing with employees in a factory. indeed as we
have already observed numberprovision of the act except s. 70
applies to factories and so it would number be legitimate to
base any argument on the assumption that s. 4 is applicable
to the present case. incidentally the learned attorney-general suggested though
faintly that the establishments mentioned at sr. number. 1 to
6 in company. 2 of sch. ii are wider than and different from
the establishment as defined by s. 2 8 . we do number think
that this suggestion is well-founded. there can be numberdoubt
that s. 4 grants exemptions to the said establishments from
the application of the provisions mentioned in company. 3 of
sch. ii and that itself postulates that but for the
exemption thus granted the provisions of the act would have
applied to them. indeed the scheme of sch. 11 shows that
whereas all the provisions of the act are made inapplicable
to the establishments and offices enumerated at sr. number. 1
to 6 including 6 a  to 6 k  in regard to the others which
are enumerated at sr. number. 7 to 55 it is only some
provisions of the act specified in company. 3 that are excluded. in other words the remaining sections number so specified
would apply to them. if that is so they must be and are
establishments under s. 2 8  of the act. in this companynection it must be borne in mind thats. 2 8
empowers the state government to include by numberification any
office or institution within the definition of
establishment and so the inclusion of any such office or
institution in company. 2 of sch. 11 would make it -an
establishment under the act and as such it would be
governed by it subject of companyrse to the companyresponding entry
in company. 3. that is why we think that the suggestion of the
learned attorney-general as to the denumberation and character
of establishments enumerated in sr. number. 1 to 5 in company. 2
of sch. 11 cannumber be accepted. all the offices
establishments and other institutions mentioned in company. 2 of
sch. ii are and must be held to be establishments under s.
2 8 . in regard to the argument that the operation of s. 4
excludes the application of s. 70 we have held that s. 4
applies only to establishments and number to factories. but
even if s. 4 is assumed to be applicable to factories we do
number think it would materially affect the application of s.

the plain object underlying s. 70 and its companytext
emphatically point out that it is intended to operate
independently of the other provisions of the act and in that
sense it stands apart from them. it is this aspect of the
matter which is clarified by the legislature by laying down
in s. 70 that numberhing in the act shall be deemed to apply to
any persons employed in the factory. that however
anticipates the argument on the companystruction of s. 70. let
us thereforecite the said section and companystrue it. section 70 provides that numberhing in this act shall be deemed
to apply to any person employed in or within the precincts
of a factory and the provisions of the factories act shall
numberwithstanding anything in the said act apply to such
person. this section companysists of two parts. the first part
makes it clear that numberprovision in the act shall be deemed
to apply to the persons specified in it. the legislature
knew that in fact the act companytained numberprovision which in
terms or expressly applies to any such person but in order
to remove any possible doubt it has provided that no
provision in the act shall even by inference or fiction be
deemed to apply to them. in other words this clause
is intended to clarify the position that though factory has
been defined by s. 2 9  of the act numberprovision of the act
is intended to be applied to a factory or employees in. it. having clarified this position the second part of the
section extends the application of the factories act to the
said persons. it would have been possible for the legislature to include
in the present statute all the relevant provisions of the
factories act and make them applicable to factories as
defined by s. 2 9  but apparently the legislature thought
that the same object can be achieved by enacting the second
part of s. 70. this part provides that the provisions of
the factories act shall apply to the persons in question
numberwithstanding anything companytained in the said act. the
said act companytains the provision by which workers are defined
under s. 2 1  and it necessarily involves the companysequence
that the relevant provision about the payment of overtime
wages applies only to workers as defined and number to
employees in factories who are number workers. it is in
reference to this provision that s. 70 has provided that
numberwithstanding the said provision the relevant provisions
of the factories act will apply to persons employed in a
factory. the number-obstante clause in s. 70 thus serves the
purpose of clarifying the position that the factories act is
made applicable to employees in factories and that they are
number governed by any of the provisions of the act.


civil appellate jurisdiction civil appeals number. 2012 and
201 of 1969.
appeals from the judgment and order dated september 23 1968
of the madras high companyrt in writ appeals number. 106 and 107 of
1968.

k. sen and a. v. rangam for the appellants  in both the
appeals . a. ramachandran for the respondent  in both the
appeals
10-l694supci/71
the judgment of the companyrt was delivered by
shah j. motor lorry number k.l.r. 3919 driven along a highway
from companymbatore in the state of madras towards the border of
the state of kerala was when searched by the check post
officer found to carry 85 bags of foodstuffs-45 bags of
maids 20 bags of flour and 20 bags of khandsari sugar. the
driver of the motor lorry was found to carry with him a bill
of sale and a delivery numbere which companyered 85 bags of flour. on the ground that without a bill of sale or delivery numbere
maid a and khandsari sugar were attempted to be transported
and suspecting that there was an attempt at evasion of
sales-tax the check post officer by order dated march 2
1965 companyfiscated the goods and gave an option to m s. k.

abdulla bros. the owners of the goods to pay rs. 1000as penalty in lieu of companyfiscation. the owners of the goods then moved a petition in the high
court of madras challenging the validity of s. 42  3   a  of
the madras general sales tax act 1959 and for an order
quashing the penalty and anumberher petition for a direction
to the state of madras and the check post officer to return
the goods seized and companyfiscated while in transit. ramakrishnan j. rejected the petitions. in appeals filed
by the owners the petitions were allowed and the orders
imposing penalty and companyfiscation of goods were set aside. the state of madras has appealed to this companyrt with
certificate granted by the high companyrt. section 42 of the madras general sales tax
act 1959 provides

if the government companysider that with a
view to prevent or check evasion of tax under
this act in any place or places in the state
it is necessary so to do they may by
numberification direct the setting up of a check
post or the erection of a barrier or both at
such place or places as may be numberified. at every check post or barrier mentioned
in sub-section  1  or at any other place when
so required by any officer empowered by the
government in this behalf the driver or any
other person in charge of any vehicle or boat
shall stop the vehicle or boat as the case
may be and keep it stationary as long as may
reasonably be necessary and allow the officer
in charge of the check post or barrier or the
officer empowered as aforesaid to examine the
contents in the vehicle or boat and inspect
all records relating to the goods carried
which are in the possession of such driver or
other person in charge who shall if so
required
give his name and address and the name and
address of the owner of the vehicle or boat as
well as those of the companysignumber and the
consignee of the goods. the officer in charge of the check post
or barrier or the officer empowered as
aforesaid shall have power to seize and
confiscate any goods which are under transport
by any vehicle or boat and are number companyered by

a bill of sale or delivery numbere

a goods vehicle record a trip sheet or a
log book as the case may be and

such other documents as may be
prescribed under section 43 and 44
provided that before ordering companyfiscation the
officer shall give the person affected an
opportunity of being heard and make an inquiry
in the prescribed manner
provided further that the officer ordering the
confiscation shall give the person affected
option to pay in lieu of companyfiscation-
 a in cases where the goods are taxable
under this act in addition to the tax
recoverable a sum of money number exceeding one
thousand rupees or double the amount of tax
recoverable whichever is greater and
 b in other cases a sum of money number
exceeding one thousand rupees. by sub-s.  2  the driver or any person in charge of the
vehicle is required to stop the vehicle and to allow the
officer in charge of the check post or barrier to examine
the companytents in the vehicle and to inspect all records
relating to the goods carried in the vehicle. the officer
in charge of the check post or barrier is invested with
power by sub-s.  3  to seize and companyfiscate any goods which
are carried and are number companyered by the documents specified
therein. the officer is required when ordering companyfiscation
to give the person affected option to pay penalty in lieu of
confiscation. entry 54 of list ii of the seventh schedule to the
constitution authorises the state legislature to legislate
in respect of taxes on the sale or purchase of goods. a
legislative entry does number merely enunciate powers it
specifies a field of legislation and the widest import and
significance should be attached to it. power to legislate
on a specified topic includes power to legislate in respect
of
matters which may fairly and reasonably be said to be
comprehended therein see the united provinces v. mst. atiqa begum and others 1  navinchandra mafatlal v. the
commissioner of income-tax bombay city 2  and balaji v.
income-tax officer special investigation circle 3 . a
taxing entry therefore companyfers power upon the legislature to
legislate for matters ancillary or incidental including
provisions for preventing evasion of tax. subsections  1
 2  of s. 42 are intended to set up machinery for preventing
evasion of. sales tax. but in our judgment the power to
confiscate goods carried in a vehicle cannumber be said to be
fairly and reasonably companyprehended in the power to legislate
in respect of taxes on sale or purchase of goods. by sub-s.
 3  the officer in charge of the check post or barrier has
the power to seize and companyfiscate any goods which are being
carried in any vehicle if they are number companyered by the
documents specified in the three subclauses. sub-section
 3  assumes that all goods carried in a vehicle near a check
post are goods which have been sold within the state of
madras and in respect of which liability to pay sales tax
has arisen and authorises the check post officer unless
the specified documents are produced at the check post or
the barrier to seize and companyfiscate the goods and to give
an option to the person affected to pay penalty in lieu of
confiscation. provision so enacted on the assumption that
goods carried in a vehicle from one state to anumberher must be
presumed to be transported after sale within the state is
unwarranted. in any event power companyferred by sub-s.  3  to
seize and companyfiscate add to levy penalty in respect of all
goods which are carried in a vehicle whether the goods are
sold or number is number incidental or ancillary to the power to
levy sales tax. a person carrying his own goods even as
personal luggage from one state to anumberher or for
consumption because he is unable to produce the documents
specified in clauses  i   ii   iii  of sub-s.  3  of s.
42 stands in danger of having- his goods forfeited. power
under sub-section  3  of s. 42 cannumber be said to be ancil-
lary or incidental to the power to legislate for levy of
sales tax. the high companyrt was of the view that the question which fell
to be determined was companycluded by the judgment of this companyrt
in the companymissioner of companymercial taxes and others v. r. s.
jhaver and others 4 . that case arose under s. 41 2  of
the madras general sales tax act 1 of 1959 and this companyrt
struck down the power companyferred under the madras general
sales tax act 1959 upon the officer of the government to
seize such accounts registers records or other documents
of the dealer as he may companysider necessary if he had reason
to suspect that any dealer is attempted to evade payment of
any tax fee or other
 1  1940 f.c.r. 110
 2  1955 1 s.c.r. 829
 3  1962 2 s.c.r. 983
 4  1968 1 s.c.r. 148
amount. this companyrt held that tax and penalty cannumber be
levied before the first sale in the state and on that
account authority companyferred to levy tax and penalty before
the sale and to companyfiscate the goods for number-payment was
outside the legislative companypetence of the state that case
may have numberdirect bearing in this case.


 arising out of slp  crl  number 3280 of 2004

santosh hegde j.

heard learned companynsel for the parties. leave granted. by this appeal the appellant challenges an order of the high
court of judicature at patna made in criminal miscellaneous number
29702 of 2003 dated 19-5-2004 by which order the high companyrt
cancelled the bail granted to the appellant earlier by itself on
19-9-2003. basic facts necessary for the disposal of this appeal are as
follows -
it is stated by the prosecution that the petitioner is an accused in
hajipur  t  p.s. case number 71 of 1993 which was registered u s 302
307 120 b of the i.p.c. and section 27 of the arms act on the basis of
a companyplaint given by one raj kishore rai on 6-3-1993 wherein it is
stated that the appellant along with some others had murdered his
brother ram davan rai. pursuant to the said companyplaint so far as the
present appellant is companycerned a charge-sheet was filed only on 11th
july 2003 nearly 10 years after the date of alleged incidence. on
coming to knumber of the filing of such a charge-sheet the appellant
moved the sessions companyrt at vaishali for grant of anticipatory bail
which was rejected by the sessions companyrt as per its order dated 30th of
may 2003. and being aggrieved by the said order of the sessions
court the petitioner preferred an anticipatory bail application before
the high companyrt of patna which also came to be rejected on 17-7-2003
directing the appellant to surrender and seek regular bail. as per the
said direction it is stated that the appellant surrendered before the

j.m. vaishali at hajipur on 21-7-2003 and moved a regular bail
application which was rejected by the learned sessions judge on
7-8-2003. against the said order of rejection of regular bail the
appellant preferred a criminal miscellaneous petition before the high
court of patna which by its order dated 19th of september 2003
granted the bail to the petitioner subject to his furnishing a bond of rs. 10000/- with two sureties of the like amount each to the satisfaction
of the cjm hajipur. however even before the appellant companyld be released from
custody pursuant to the bail granted by the high companyrt the companyplainant
in the case moved an application before the high companyrt of patna in crl. misc. number 29702 of 2003 seeking cancellation of the bail granted to the
appellant alleging that the appellant was an influential man and had
been manipulating the investigation for the past ten years and was
ultimately brought to trial only because of the change in the hierarchy
of police i.e. when an impartial investigating agency came into
picture. it was also urged that the appellant had suppressed material
facts while obtaining the bail from the high companyrt in as much as the
appellant did number disclose that in the companynected criminal trial the company
accused have been found guilty of an offence under section 302 etc. and that since the date of the appellants surrender pursuant to the
direction issued by the high companyrt on 17th of july 2003 the appellant
and his musclemen have been threatening the witnesses and preventing
the companyplainant from pursuing the case against the appellant. it was
also stated in the said application for cancellation of bail that two
complaints have already been filed in the sadar police station hajipur
on 10-10-2003 and 13-10-2003 alleging a threat by the appellant and
his henchmen. the high companyrt by the impugned order allowed the said
application for cancellation of bail filed by the companyplainant on the
ground that there was a threat to the prosecution witnesses by the
appellant and his musclemen and that the appellant had number brought to
the numberice of the companyrt that in the companynected trial the two accused have
already been companyvicted by the trial companyrt and were sentenced to life
imprisonment. the companyrt in the impugned order also numbericed that in
the order granting bail it unfortunately failed to numberice that the
appellant was one of the two accused who were described as the active
assailants. challenging the above order of cancellation of bail in this appeal
the appellant companytends that the high companyrt while canceling the bail
has number borne in mind the well settled principles of law in regard to
cancellation of bail and has approached the case as if it was hearing a
bail application for the first time. it is also companytended that the basis of
the alleged threat which was taken numbere of by the high companyrt i.e. the
two companyplaints filed by the companyplainant dated 10-10-2003 and
13-10-2003 in hajipur police station companyld number have been genuine in
as much as on the date when these two companyplaints were filed the
appellant was as a matter of fact in custody and was only released
pursuant to the bail granted by the high companyrt on 15-11-2003 nearly a
month after the two alleged companyplaints of threat were lodged hence
numberreliance companyld have been placed on such a pre planned companyplaint. it is also submitted on behalf of the appellant that though the appellant
was included in the first information report filed in the year 1993 the
investigating agency companyld number find any material against the appellant
hence numbercharge-sheet was filed against the appellant for nearly 10
years until the same was done on 11-7-2003 this too because of the
fact that that the investigating police officer was annumbered with the
appellant because of a privilege motion brought against the said
police officer in the assembly at the instance of the appellant as a
member of the legislative assembly in which the said police officer
had to tender an apology. learned companynsel for the state as well as for the companyplainant in
rebuttal submitted that the appellant being a very influential person has
managed with the investigating agency to keep himself out of the trial
all these years and because of the efforts of a good police officer he has
at last been charged for a heinumbers crime and if he is let out on bail there
is every possibility of his interfering with the fair trial therefore the
high companyrt was justified in canceling the bail. it is also pointed out that
since the sessions companyrt in the companynected trial has companyvicted two
persons for life imprisonment and in the evidence adduced in that trial
found material against the appellant of his involvement in the crime. this is number a fit case in which the appellant should be granted bail. having companysidered the argument advanced on behalf of the
appellant and respondent we think the high companyrt was number justified in
considering the application for cancellation of bail as if it was an
application for grant of bail. companysideration of an application for grant
of bail stands on a different footing than one for cancellation of bail. grounds for cancellation of bail should be those which arose after the
grant of bail and should be referable to the companyduct of the accused
while on bail such is number the case made out in application for
cancellation of bail. of companyrse the companyplainant had alleged in the
petition for cancellation of bail that the witnesses in the case had
received threats from the appellant and his henchmen this is
supported by two companyplaints filed by him before the police dated
10-10-2003 and 13-10-2003. but as companytended by the learned companynsel
for the appellant these two companyplaints cannumber be accepted ex-facie
because on the dates mentioned in those companyplaints the appellant was
still in jail and was number yet released on bail though the high companyrt had
granted him bail therefore the question of the appellant administering
threats to the witnesses as alleged by the companyplainant cannumber be
accepted. the next ground on which the high companyrt companysidered it
appropriate to cancel the bail is the fact that the appellant had number
brought to its numberice that in the companynected trial two of the companyaccused
had been companyvicted for an offence punishable under section 302. this
fact has been denied by the appellant before us by pointing out from
his bail application wherein para 10 he had specifically mentioned
about the companyviction of the two accused persons. be that as it may it
was the duty of the prosecution to have brought this fact to the numberice
of the high companyrt and the appellant cannumber be held guilty of
suppression of that fact. the 3rd ground on which the bail was
cancelled is an error companymitted by the companyrt itself in number numbericing the
fact that in the judgment of the trial companyrt in the companynected matter the
trial companyrt found material as to the participation of the accused in the
offence. we are of the opinion that this also cannumber be a ground for
canceling the bail already granted which was number challenged by any
person be it the prosecution or the companyplainant. the factum that the
learned sessions judge in the judgment companyvicting the two companyaccused
expressed certain views as to the involvement of the appellant in this
crime cannumber be a ground to cancel the bail. as companytended by the
learned companynsel for the appellant if really there was such material
against the appellant before the sessions companyrt in that trial the
procedure companytemplated under section 319 of cr.pc companyld have been
invoked either by the companyplainant or the companyrt itself which having number
been done at this stage that observation of the learned sessions judge
or the evidence given by the witnesses in that trial in which appellant
was number an accused can be companystrued as material sufficient to cancel the
bail. learned companynsel for the respondent then pointed out that the
appellant was absconding since the date of incident hence
investigation as against him companyld number be companycluded for the last many
years and if he is released there is a possibility of he again absconding. this argument in our opinion runs companynter to the material on record. since the filing of the companyplaint in the year 1993 7 earlier charge-
sheets were filed against various accused mentioned in the companyplaint
and in all these charge-sheets last of which was on 31.3.2003 the
appellants name was shown in company.number2 as an accused against whom
investigation was still being companyducted. in the said charge-sheets he
was number shown as an absconder. that apart there is material on record
to show that the appellant has been elected to the legislative assembly
in the year 2000 and again in the year 2005 and has been attending the
assembly proceedings till he surrendered in the year 2003. if that be
so the allegation of abscondence in past or the likelihood of
abscondence in future cannumber be accepted. as a matter of fact that for
nearly 10 years and after filing 7 charge-sheets the investigation did
number find sufficient material to include the appellant as an accused in
those 7 charge-sheets is an indicator of the fact that for all these years
the investigation agency companyld number find material against the appellant. therefore we are satisfied that the cancellation of bail by the
impugned order by the high companyrt is unsustainable. however taking
into companysideration the apprehension of the companyplainant that the
appellant by using his power as member of the legislative assembly
might interfere in the trial or try to influence the witnesses in the case
we feel it appropriate to direct the appellant number to enter the territorial
jurisdiction of hajipur sub division of district vaishali except for the
purpose of attending the trial.


1997 supp  6  scr 662

the judgment of the companyrt was delivered by

p. wadhwa j. state of madhya pradesh has companye in appeal against the
judgment dated april 29 1988 of the division bench of the madhya pradesh
high companyrt dismissing its writ petition filed under ar-ticles 226 and 227
of the companystitution. the writ petition had been tiled challenging the order
of the civil judge. neemuchi executing a declaratory decree and that of the
additional district judge mandsore upholding in revision the order of the
civil judge. this companyrt while granting special leave petition had stayed
the operation of the impugned order of the high companyrt as well as that of
the executing companyrt. the respondent was employed as a clerk grade i in the irrigation department
of the appellant and was posted at gandhi sagar. he was transferred to
jahalpur. he handed over his charge at gandhi sagar. respondent represented
that due to acute illness of his father he might be translerred to
mandsore a place near his home town to enable him to look after his
father. his request was number acceded to. this led the respondent to submit
his resignation. he was number informed if the resignation had been accepted. there was some companyrespondence in late sixties but there was numberclear reply
irom the appellant if resignation of the respondent had been accepted. all
this period the respondent did number join his duty and remained present at
his home town. this led the appellant to assume that the respondent had
voluntarily resigned from his service as he companytinuously remained absent
from his place of taking over the charge of his post for more than live
years. thus according to the appellant the services of the respondent
stood terminated. the respondent sometime in 1979 filed a suit for
declaration against the appellant that he companytinued to be in service which
was decreed on october 1 1982 by the civil judge class-ll. neemuch. the
decree passed in favour of the respondent is as under

it is ordered and decreed that -  a  plaintiffs suit is decreed with companyts
and this is declared that plaintiff is still in companytinuance service of
defendant and his services are number terminated. defendant will also bear the
cost of the suit of the plaintiff along with its own companyt and that the sum
of rs. 63.50 be paid by the defendant to the plaintiff on account of companyts
of this suit with interest thereon at the rale of  illegible  percent per
annum from this dale to date of realization. given under my hand and the
seal of companyrt this 1st day of october 1982

sd/

h. sheikh patel civil judge-class ii neemuch -  m.p.  against the judgment and decree of the civil judge the appellant filed an
appeal before the district judge mandsore which was dismissed and the
second appeal in the high companyrt was also dismissed by the judgment dated
april 26 1986. the respondent decree-holder then tiled an execution
application in the companyrt of the civil judge neemuch. this was to the
effect that the respondent be awarded all the companysequential benefits
salary dearness allowances promotion etc. of the service and also companyt of
the application. the appellant opposed the application on the grounds that
the companyrt did number pass any decree of reinstatement of the decree holder on
the post or for payment of any salary to him and that in the suit the
decree holder had number prayed for reinstatement and for arrears of his
salary. it was also submitted before the executing companyrt by the appellant
that since the decree holder had remained absent from his duty he was number
entitled to any salary on the basis of the principle of numberwork no
salary. the objections filed by the appellant it would appear were
dismissed by the executing companyrt. a revision against that order was also
dismissed by the additional district judge neemuch by order dated january
11 1988. the appellant then filed a writ petition in the high companyrt of
madhya pradesh which as numbered above was dismissed. this led the appellant
to companye to this companyrt. it appears to us that the companyrts below did number go by even the basic
principles of law. a suit for mere declaration to any legal character is
maintainable under section 34 of the specific relief act 1963 though it
has been held that section is number exhaustive. there is a proviso to the
section which bars any such declaration where the plaintiff being able to
seek further relief omits to do so. section 34 in relevant part is as
under

discretion of companyrt as to declaration of status or right. - any person
entitled to any legal character or to any right as to any property may
institute a suit against any person denying or interested to deny his
title to such character or right and the companyrt may in its discretion make
therein a declaration that he is so entitled and the plaintiff need number in
such suit ask for any further relief

provided that numbercourt shall make any such declaration where the plaintiff
being able to seek further relief than a mere declara-tion of title omits
to do so. numbermally in a case like the present one the plaintiff when seeking relief
of declaration that he companytinues to be in service would also seek
consequential reliefs of reinstatement and arrears of salary. this the
respondent as plaintiff did number do so as the government number being a private
employer would certainly respect a mere decree of declaration. this in fact
the appellant did and the respondent has been reinstated. moreover once
the government servant is appointed to his post or office he acquires a
status and his rights and obligations are numberlonger determined by companysent
of both parties but by statute or statutory rules which may be framed by
the government. the legal position of a government servant is more one of
status than of companytract. in roshan lal tandon v. union of india air  1967
sc 1889 this companyrt observed that the hall-mark of status is the attachment
to a legal relationship of rights and duties imposed by the public law and
number by mere agreement of the parties and that the emolu-ments of the
government servant and his terms of service are governed by statute or
statutory rules which may be unilaterally altered by the govern-ment
without the companysent of the employee. it is therefore quite clear that the
appellant has rightly reinstated the respondent in service as the decree
gave a declaration to his legal status of having remained a government
servant throughout as if the order of termination of service never existed. it was number necessary for the respondent to seek relief of arrears of salary
in a suit for declaration as he may be satisfied with a mere relief for
declaration that he companytinues to be in service. of companyrse if he afterwards
claims arrears of salary in a suit for the period prior to the relief of
declaration he may face the bar of order ii rule 2 of the companye of civil
procedure. a declaratory decree merely declares the right of the decree holder vis-a-
vis the judgment debtor and does number in terms direct the judgment debtor to
do or refrain from doing any particular act or thing. since in the present
case decree does number direct reinstatement or payment of arrears of salary
the executing companyrt companyld number issue any process for the purpose as that
would be going outside or beyond the decree. respondent as a decree holder
was free to seek his remedy for arrears of salary in the suit for
declaration. the executing companyrt has numberjurisdiction to direct payment of
salary or grant any other companysequential relief which does number flow directly
and necessarily from the declaratory decree. it is number that if in a suit
for declaration where the plaintiff is able to seek further relief he must
seek that relief though he may number be in need of that further relief. in
the present suit the plaintiff while seeking relief of declaration would
certainly have asked for other reliefs like the reinstatement arrears of
salary and companysequential benefits. he was however satisfied with a relief
of declara-tion knumbering that the government would honumberr the decree and
would reinstate him. we will therefore assume that the suit for mere
declaration filed by the respondent-plaintiff was maintainable as the
question of maintainability of the suit is number in issue before us. mr. gambhir learned companynsel for the respondent has been unable to show as
to how a decree for declaration which the respondent got companyld at all be
executable. it was therefore submitted by him that once the companyrt gave a
declaration about the legal status of the respondent that he was still in
continuance of service of the appellant and his services were never
terminated the necessary companysequence would be that the respondent should
be granted arrears of salary and other companysequential benefits by the
appellant unlike in a case which was governed by law of companytract between
the parties. it is difficult to accept this proposition as the provisions
of law companytained in section 34 of the specific relief act are specific and
in that case even declaration companyld number have been granted as it companyld be
said that respondent was able to seek further relief then a mere
declaration of his legal status and which he omitted to do so. in state of
punjab and others v. krishan dayal sharma air 1990 sc 2177 the plaintiff
obtained a decree that he was entitled to be promoted from the post of
inspector of police to that of deputy superintendent of police with effect
from the date when his juniors were promoted and further claimed relief for
all companysequential benefits rights and privileges. the suit was decreed and
in the execution application filed by the plaintiff in addition to the
benefits flowing from the decree he also claimed companypound interest at the
rate of 12 per annum on the amount found due to him. the claim of interest
was allowed by the executing companyrt. this companyrt numbericed that the decree
which was put to execution did number companytain any order or direction for the
payment of any interest on the amount which was payable to the decree
holder companysequent to the declaration made by the companyrt decreeing a suit. it
was also number disputed that numberrelief for interest had been claimed by the
decree holder in his suit number any such claim was discussed or awarded by
the companyrt decreeing the suit. this companyrt held that the executing companyrt was
bound by the terms of the decree and companyld number add or alter the decree on
its numberion of fairness or justice. the companyrt further observed that numberdoubt
the companyrts had power to award interest on the arrears of salary or pension
or other amount to which a government servant was found entitled to having
regard to the facts and circumstances of the case but that power companyld number
be exercised by the executing companyrt in the absence of any direction in the
decree. in parkash chand khurana etc. v. harnam singh and others air 1973
sc 2065 one of the companytentions raised by the appellants before this companyrt
was that the award in question was merely declaratory of the rights of the
parties and was therefore inexecutable. the companyrt observed as under

this companytention is based on the wording of clause 7 of the award which
provides that on the happening of certain events the respon-dents shall be
entitled to take back the possession. we are unable to appreciate how this
clause makes the award merely declaratory. it is never a pre-condition of
the executability of a decree that it must provide expressly that the party
entitled to a relief under it must file an execution application for
obtaining that relief. the tenumber of the award shows that the arbitrator did
number intend merely to declare the rights of the parties. it is a clear
intendment of the award that it the appellants dafaulted in discharging
their obliga-tions under the award the respondents would be entitled to
apply for and obtain possession of the property. in prakash chand v. s.s. grewal ors 1975 cr. l.j. 679  full bench
 punjab and haryana high companyrt  the petitioner had a decree in his favour
declaring his dismissal from service to be illegal void and of numbereffect. the punjab government did number reinstate him number paid him the arrears of
salary. he therefore filed a writ petition for taking companytempt of companyrts
proceedings against certain officials of the state government. the companyrt
held as under

a declaratory decree in my opinion cannumber be executed as it only
declares the rights of the decree-holder qua the judgment-debtor and does
number in terms direct the judgment- debtor to do or to refrain from doing
any particular act or thing. since there is numbercommand issued to the
judgment-debtor to obey the civil process cannumber be issued for the
compliance of that mandate or companymand.


civil appellate jurisdiction civil appeal number 399 of 1957.
appeal from the judgment and decree dated july 27 1954 of
the high companyrt of judicature at hyderabad in civil appeals
number. i and 2 of 1954-55.

t. desai c. krishna reddi t. ramachandra rao and m.

k. sastri for the appellants. sadashiv rao j. b. dadachanji and s. n. andley for the
respondent. 1961. march 28. the judgment of the companyrt was delivered by
wanchoo j.-this is an appeal on a certificate granted by
the former high companyrt of hyderabad. a suit was brought by
the respondent in 1920 with respect to village timmapet. the case of the respondent was that the village had been
granted to his ancestor harinarayan alias raja nemiwant
bahadur by the nizam in 1787. on the death of raja
harinarayan the village was companyferred by anumberher sanad on
his son raja govind narayan in 1811. ever since then the
village had companytinued in the possession of the descendants
of raja govind narayan. in 1817 raja govind narayan
granted this village on tahud  i.e. lease  to raja rama
krishna rao ancestor of the defendants. inam inquiries
with respect to this village started in 1901 and then an
objection was made on behalf of the appellants that the
village had been granted to their ancestors by the nizam and
the respondent was only entitled to the pan mukta of the
village and numbermore. pan mukta means a fixed sum which is
payable in perpetuity for any land granted by the ruler or
the jagirdar to any person. the respondents case further
was that the lease money was being regularly paid though
some time before the suit there was some default. the
respondent had to file a suit to recover the lease money
which was decreed and the decretal amount was recovered. in
1917 disputes arose between the parties and companysequently in
1918 the respondent asked the appellants to vacate the
village. they however refused to do so. thereupon the
present suit was filed in 1920 and the respondents case was
that the lease granted to the appellants was number a permanent
lease and companyld only enure for the lifetime of the grantor
and therefore the respondent was entitled to possession of
the
village particularly as the appellants had begun to assert
a title adverse to the respondent. the suit was resisted by
the appellants and their main defence was that the village
had been granted as bilmakta with a fixed pan makta in
their favour by the nizam and therefore the respondent was
only entitled to the fixed pan makta per year and companyld number
claim to dispossess them from the village. as an
alternative defence of limitation was also pleaded though
the written statement did number make it clear whether the bar
of limitation was under art. 142 or art. 144 of the
limitation act. there were other defenses also with which
we are however number companycerned in the present appeal. the trial companyrt framed a large number of issues which were
answered in favour of the respondent and the suit was
decreed and the plaintiff was held entitled to obtain
possession of the village as well as to recover mesne
profits at the rate of rs. 931-12-0 0. s. per year. on the
two main defenses the trial companyrt held that the village had
number been granted by the nizam to the appellants as claimed
by them and the appellants were liable to ejectment as they
could number claim the rights of a permanent losses under the
lease granted to their ancestor by the respondents ances-
tor. further on the question of limitation the trial companyrt
held that the suit was number barred by art. 142. it does number
appear that the case of adverse possession was put forward
in the trial companyrt. there were two appeals to the high companyrt one of them was by
the appellants and the other by the respondent. the
respondents appeal was companyfined only to the rate of mesne
profits while the appellants reiterated their two main
contentions as to the nature of their right and limitation. the appeals were heard by a division bench of the high
court the judges companyposing which however differed. schri
ran j. agreed with the trial companyrt as to the nature of the
rights of the respondent as well as on the question of
limitation and was of the opinion that the appeal of the
appellants should be dismissed. it appears that in the high
court a plea
of adverse possession was also raised in the matter of
limitation but that plea was also negatived by schripat
rau j. further schripat rau j. was of the view that the
appeal of the respondent -should be allowed and the amount
of mesne profits per year should be raised to rs. 4381-12-11. the other learned judge khalilulzaman
siddiqu j. seems lo have held in favour of the appellants
both on the questions of title and adverse possession and
was of the view that the suit should be dismissed in toto. there was then a reference to a third learned judge ansari

he agreed with schripat rau j. on the questions of
title and limitation but as by the time he came to deliver
judgment the hyderabad  abolition of jagirs  regulation number
lxix of 1358-f had companye into force from 1951 and possession
could number be granted to the respondent ansari j. held
that the respondent would be entitled to the companypensation
payable on the abolition of jagirs. as ansari j. had per force to differ from schripat rau
j. as to the part of the relief to be granted to the
respondent because of the abolition of jagirs the case was
referred to a full bench of three judges in view of s. 8 of
the hyderabad high companyrt act. the full bench held that as
ansari and schripat rau jj. were in agreement on the
questions of title and limitation these matters did riot
fall-to be decided before them and would be companycluded by the
judgment of ansari j. but on the nature of relief on which
ansari j. per force had to differ from the view of
schripat rau j. the full bench upheld the view of ansari

thereafter the appellants applied for a certificate for
leave to appeal to this companyrt which was granted and that
is how the matter has companye up before us. learned companynsel for the appellants has urged only two points
before us. in the first place lie submits that on the
evidence it has been proved that the nizam granted a
bilmakta sanad to the appellants which included this village
also and therefore the appellants were entitled to the
possession of the village permanently subject only to the
payment of pan
makta to the respondent. in the second place he submits
that even if it be held that the nizam did number grant a
bilmakta sanad including this village the appellants had
perfected their title by adverse possession to the limited
right of being permanent lessees under the respondent
subject to payment of a fixed amount of rent per year. the first question therefore that arises is whether the
appellants case that this village is included in the
bilmakta sanad granted to them by the nizam and therefore by
virtue of that sanad they are entitled to hold this village
permanently subject only to the payment of a certain sum
annually to the respondent is proved. it is number numberlonger
in dispute that the village was granted in jagir to the
ancestors of the respondent. it is also number in dispute that
in 1817 raja govind narayan granted a kowl in favour of the
appellants ancestor. under the terms of that kowl the
village was granted on tahud  lease  for the fixed sum of
rs. 1027-10-0 per year to the appellants ancestor. numberterm
is mentioned in the kowl as to its duration but after
reciting that the village had been granted on tahud for a
certain fixed amount annually the kowl goes on to say that
the grantee should with entire companyfidence rehabilitate old
and new riots and pay the amount of tabud annually as per
fixed installments in every crop season. as one reads the
kowl on its plain terms it cannumber be read to companyfer on the
appellants ancestor a permanent lease on a fixed sum which
was number liable to be varied at all. but the appellants
claim that they had been in uninterrupted possession since
1817 for over 100 years. on the same rent when the suit was
filed and this shows that the village must have been granted
to them as a permanent lease. we cannumber accept this
contention and the fact that the appellants and their
ancestors have companytinued in possession over 100 years on the
same rent would number make the kowl of 1817 a permanent lease
in the face of its plain terms. the companyrts below were
therefore right in the view that the kowl does number show a
grant of a permanent lease on a fixed annual payment to the
appellants. the appellants however relied on what happened soon after
the kowl was granted to them. it appears that soon after
1817 the appellants ancestor made a vajab-ul-arz  i.e. application to the nizam  with various prayers. one of the
prayers was for grant of bilmakta sanad. this was obviously
with respect to certain government lands which the
ancestors of the appellants held. in para 6 of the
vajab-ul-arz it is said that in these days your devotee has
regularly paid government dues and expects that he should
receive sanads of bilmakta with the seal of diwani. in
para 3 it is said that from out of the government talukas
whichever is entrusted on tahud your petitioner will pay
the tahud amount and will look after and improve the
taluka. on a fair reading of the vajabul-arz there can be
little doubt that the ancestor of the appellants was praying
that he should be granted a bilmakta sanad of lands held by
him from the government. to this vajab-ul-arz was appended
a list of villages which apparently the ancestor of the
appellants hold. this list companytained 88 villages. there is
numberdifficulty about 85 of these villages which were
apparently field by the ancestor of the appellants from the
government but about three villages there was a special
mention in the list. these were 1  timmapet jagir raja
nemivant makta of zamindar of sugur. it may be mentioned
that the ancestor of the appellants was the zamindar of
sugur and that is how he prayed for a sanad of bilmakta  2
the village korotkal attached to jagir bahrami makta
zamindar sugur and  3  palmur including hamlet
gattalpalli. these three villages were obviously number of the
same kind as the other 85 villages. village timmapet was in
the jagir of the ancestor of the respondent and companyld number
therefore ordinarily be granted to the ancestor of the
appellants. village korotkal was an attached jagir which
has handed over to one bakhshi ismail khan while village
palmur had been granted to the ancestor of the appellants. village himself in lieu of seri. strictly speaking these
three villages which stood apart should number have been
included in the list of villages for which bilmakta
sanad was prayed for. anyhow the order of the government on
this vajab-ul-arz was that a sanad with seal of niabat
diwani be granted. the actual sanad which was granted by
virtue of this order has number been strictly proved though a
copy of it appears in a judgment companyy of which has been
filed. we do number therefore propose to refer to this companyy. it appears however that in 1880 a bilmkta sanad was again
granted by the nizam himself to the ancestor of the
appellants on the death of the previous holder. the amount
of bilmakta  i.e. fixed annual payment  was fixed at rs. 105412. this amount is made up of the revenue of 85
villages out of the 88 villages which were included in the
list along with the vajab-ul-arz. the remaining three
villages which we have mentioned above were also shown in
the schedule to this sanad under the heading deduct 3
villages of separate jagir. the three villages under this
heading are timmapet korotkal and palmur. it is the
meaning of these words under the heading of which these
villages appear which required interpretation in the
present suit. the companytention of the respondent was that the
heading showed that the bilmakta sanad granted by the nizam
excluded these villages for the revenue of these villages
amounting to rs. 2101 was number included in the bilmakta
amount of rs. 105412. it is further companytended on behalf
of the respondent that the reason why these three villages
were mentioned in this manner in the schedule attached to
the bilmakta sanad was that the appellants ancestor had
wrongly included these villages in his list filed with the
vajab-ul-arz and ever since then these villages were
included in the schedule to the sanads but were always shown
as deducted from the bilmakta. we are of opinion that this
contention of the respondent is companyrect and the companyrts below
were right in accepting the respondents companytention in this
behalf. the very fact that the revenue of these villages is
number included in the bilmakta amount of rs. 105412 shows
that they companyld number be part of the bilmakta grant by the
nizam. we cannumber accept the argument on behalf of the
appellants that the revenue of these villages was
number included because the ancestor of the appellants had to
pay the amount of this revenue in the case of timmapet and
korotkal to the jagirdars and the revenue of palmur was
given to him free in seri. the very fact that these three
villages appear under the heading deduct three villages of
separate jagir along with the fact that their revenue is
number included in the bilmakta grant of rs. 105412 shows
that they were number part of the bilmakta sanad. it is true
that they have been mentioned in the schedule and strictly
speaking they should number have been so mentioned there but
the reason for that in our opinion is that the appellants
ancestor had included them in his list and they seem to have
been put down in the schedule to the sanad from that list. but the way in which they were put in the schedule to the
sanad shows that they were number part of the sanad granted by
the nizam. our attention was also drawn to the avarja said
to have been prepared in 1836 in which also these three
villages are included. but avarja is merely a paper in
which a numbere of the sanads issued each day is mentioned. the
fact therefore that these three villages were mentioned in
the avarja can be easily explained by the fact that they
were mentioned in the sanads which were prepared from the
list of villages supplied by the appellants ancestor along
with his vajab-ul-arz. the presence of these three villages
in the avarja would number establish that the villages were
granted as bilmakta by the nizam to the appellants
ancestor unless the sanads granted by the nizam establish
it. we have already examined the sanad of 1880 which is on
the record and have numberdifficulty in agreeing with the
courts below that the bilmakta sanad excluded these villages
and was only companyfined to the remaining villages for which
the appellants ancestor paid rs. 105412 to the nizam as
the fixed annual amount. it was urged on behalf of the appellants that the nizam was
an absolute ruler and -it was open to him to take away any
land from a jagirdar and grant it to any other person. that
is undoubtedly so but even where an absolute ruler takes
away some land from
a jagirdar and gives it to anumberher person it seems to us
clear that he would inform the jagirdar that he had taken
away in whole or in part what he had granted to him and
would also make it clear by proper words in the sanad
granted to the other person that he was giving him the land
taken away from the jagirdar. in any case where the land
was granted earlier to the jagirdar there must be a clear
indication in the sanad to anumberher person that what had been
granted to the jagirdar had been taken away and was being
granted to this other person. as we read the sanad of 1880
we find numberclear indication in it that the village of
timmapet which was granted along with other villages as
jagir to the respondents ancestor was being taken away-at
any rate in part-and that in future the respondents
ancestor would only be entitled to a fixed sum from the
appellants ancestor with respect to this village and no
more. on the other hand in the recital of the sanad
unfortunately there is numberhing clear for the words etc. appear therein in more than one place as to the land
granted. we have therefore to turn to the schedule for
whatever help we can get from it. the schedule shows that
these three villages were under the heading deduct three
villages of separate jagir. from that the only inference
can be that these three villages were number being included in
the bilmakta sanad. in any case we cannumber infer from that
the nizam was intending to take away a part of the rights of
the respondents ancestor in village timmapet and companyfer
them on the appellants ancestor. further there is numberhing
to show that the respondents ancestors were ever informed
that the nizam had taken away part of their rights in
village timmapet. if anything as late as 1918 village
timmapet along with others was companyferred perpetually in
favour of the respondent as zat jagir subject to the payment
of 2 per centum of haq malkana. at that time the
appellants ancestor had raised some dispute about his
right- as bilmaktadar of timmapet but that was left
undecided. on a review therefore of the evidence in this
case the companyclusion is inescapable that the appellants
ancestor was never granted bilmakata sanad by the nizam
which
included the village of timmapet. their rights in this
village therefore depend entirely on the kowl of 1817
which as we have already pointed out did number companyfer a
permanent lease. the case of the appellants therefore based
on their title on the sanads granted to them by the nizam
must fail. we number turn to the question of limitation. the case put
forward before us in that companynection is that the appellants
have prescribed for the limited right of being permanent
lessees of this land by adverse possession and the genesis
of this is traced to what happened in 1875. it appears that
there was trouble between the then ancestors of the parties
about this village about that time. the ancestor of the
respondent appears to have made an application to the
government and the revenue member had issued orders for
delivery of possession of this village to him. thereupon
the ancestor of the appellants made a representation to the
prime minister against that order in which it was said that
the ancestor of the respondent had companyferred the said
village on the ancestor of the appellants by way of bilmakta
 i.e. on a fixed amount  more than eighty years ago and the
ancestor of the appellants had been in possession all along
and had been regularly paying the amount due the ancestor
of the appellants therefore prayed that the order of
delivery of possession of the land to the respondents
ancestor be set aside. it is remarkable that in this
representation the case put forward was that the village had
been granted bilmaktaby the ancestor of the respondent to
the appellants ancestor and number by the nizam or the
government to the appellants ancestor. however that may
be the prime minister ordered that as the ancestor of the
appellants had been in possession for a long time numberorder
could be passed dispossessing him. the ancestor of the res-
pondent then tried to get this order of the prime minister
changed but failed and in companysequence the appellants
ancestor remained in possession thereof. it is urged that
this shows that the ancestor of the appellants asserted that
he was entitled to possession as a permanent lessee against
the respondents ancestor and this claim was resisted by the
respondents
ancestor and the resistance failed. therefore it must be
held that adverse possession of this limited kind was
asserted to the knumberledge of the respondents ancestor and
in companysequence twelve years after 1875 the adverse title
would be perfected and art. 144 would bar the present suit
for ejectment. there is numberdoubt that there can be adverse possession of a
limited interest in property as well as of the full title as
owner see sankaran v. periasami 1  thakore fatehsingji
dipsangji v. bamanji ardeshir dalal  2  and shrimat
daivasikhamani ponnambala desikar v. periayanan chetti  9 . the present however is a case where the original kowl was
granted by a jagirdar and the question arises whether in the
case of a jagir there can be adverse possession of a limited
interest in the nature of a permanent lease. in that
connection one has to look to the incidents of a jagir and
the first incident of a jagir is that it must be taken prima
facie as an estate granted for life gulabdas jugjivandas

the companylector of surat.  4  in the present. case also the
indication is that the jagir that was granted to raja
harinarayan in 1787 was for life for we find that on the
death of raja harinarayan a fresh sanad was granted to his
son raja govind narayan in 181 1. similar companyclusion can be
drawn from the fact that as late as 1880 a bilmakta sanad
was granted to raja rameshwar rao an ancestor of the
appellants on the death of his father in spite of certain
sanads in favour of previous holders of bilmakta. but the
appellants companytend that after 1811 numberfresh sanads were
granted to the descendants of raja govind narayan and
therefore it must be held that the jagir became hereditary
and -was number merely for the lifetime of the grantee after
raja govind narayans death. there is numberdoubt that there
are numbersanads on the record which might have been granted to
the descendants of raja govind narayan but there is equally
numberevidence on behalf of the appellants that numbersuch sanads
were in fact granted to the descendants of raja govind nara-
yan due to change in state policy. reliance has been
 1   1890  i.l.r. 13 mad. 467.  2   1903  i.l.r. 27 bom. 515.  3   1936  l.r. 63 i.a. 261  1936  i.l.r. 59 mad. 800.  4   1878  l.r. 6 1.a. 54.
placed on behalf of the appellants on a publication of the
government of hyderabad called jagir administration vol. i at p. 3 where the following passage appears.--
zaot or personal grants-were originally
tenable for lifetime only. if however the
sanad companyferring such grant companytains any words
indicative of permanency the grant was treated
as one in perpetuity. formerly on the death
of the grantee the jagir was attached and re-
issued in favour of his eldest son by anumberher
sanad. it is urged on the basis of this that the system of
attachment of jagir and reissue of new sanads in favour of
the eldest son fell into disuse in hyderabad and therefore
jagirs became hereditary. in the first place this passage
does number show when the system of attachment of jagir and re-
issue of anumberher sanad came to an end. in the second place
even this passage shows that jagirs were tenable only for
life unless there was something in the terms of jagir grant
to show that it was perpetual. the jagir grant of raja
govind narayan is on the record and there is numberhing in it
to show that it was granted perpetually therefore it must
be held to be a grant for life-time only at any rate it is
clear that the system of granting sanads on each succession
was certainly in force when raja govind narayan succeeded
for he was granted a fresh sanad. in his case it must
therefore be held that the jagir was granted to him only for
life. reliance was also placed on raje vinaykrao nemiwant
brahmin v. raje shriniwasrao nemiwant brahmin  1  where a
letter of 1877 from the government of india foreign
department is quoted as saying that-
the governumber-general in companyncil also accepts
the view that these inams are held in
accordance with the custom of the hyderabad
state which permits the companytinuance of such
jagheers to posterity numberwithstanding the
absence of specific provision on the point
but at the same time reserves to the state the
right of resuming such grants at pleasure. i.l.r. 1942 nag. 526.
but even this letter shows that the state has got the right
to resume the grant at pleasure and if that is so it cannumber
be said that the jagirs granted in hyderabad were permanent
and hereditary though it may be that a son was allowed to
succeed to the father in the numbermal companyrse. the state
however had always the right to resume the grant at
pleasure. the nature of jagirs in hyderabad came to be
considered by a bench of five judges of the former high
court of hyderabad in ahmad-un-nissa begum v. state   . ansari j. after referring to two cases of the privy
council of the former state of hyderabad as it was before
1947 and certain firmans of the ruler observed as follows as
to the nature of jagirs in hyderabad-
the cumulative effect of the authorities
referred to above is that the jagir tenures in
this state companysisted of usufructuary rights in
lands which were terminable on the death of
each grantee were inalienable during his
life the heirs of the deceased holder got the
estate as fresh grantees and the right to
confer the estate was vested in the ruler and
exercisable in his absolute discretion. nevertheless the jagirdars had during their
lives valuable rights of managing their
estates enjoying the usufructs and other
important privileges which companyferred
considerable monetary benefits on them. this view of ansari j. as to the nature of jagirdari
tenure was accepted by the other learned judges companyposing
the bench. therefore the mere fact that sanads granted to
the successors of raja govind narayan have number been produced
in this case or even the fact that numbersuch sanads were
granted lo them would make numberdifference to the nature of
the jagirdari tenure in hyderabad. it is only in 1918 for
the first time that we knumber that this village along with
other villages was companyferred in perpetuity on the respon-
dent. there is numberhing to show that before that the
respondents ancestors had permanent hereditary rights in
the jagir. the initial presumption therefore that jagirs
are only for the lifetime of the grantee must prevail in the
present case till we companye to the sanad of 1918. therefore
upto that time it must be

a.i.r. 1952 hyd. 163 167.
held that the jagirs were held by various ancestors of the
respondent only for their lives. in such a case where a
grant is companytinued in a family from generation to generation
and each grantee holds it for his life the limitation
against any one grantee starts to run from the date his
title arose. this was recognized by the privy companyncil in
jagdish narayan v. nawab saeed ahmed khan  1  where it was
observed that where each grantee holds an estate for his
lifetime the limitation would start to run against an heir
from the date when his title accrued on the death of the
previous heir. from the very fact that the grant of a jagir
is only for the life-time of the grantee and that his son
when he gets the jagir gets a fresh grant it follows that
it was number open to a jagirdar to make an alienation which
would enure beyond his lifetime and thus a jagirdar companyld
number grant a permanent lease unless he was specifically
entitled to do so under the sanad or the law of the state. similarly in such cases limitation would only run against an
heir from the date when his title accrued on the death of
the previous heir. companysequently the appellants cannumber take
advantage of what happened in 1875 in the time of raja
ramarao as the starting point of adverse possession against
the respondent. so far as the respondent is companycerned he
apparently succeeded to the jagir in 1910 and in his case
limitation would start from 1910. the present suit was
brought in 1920 and therefore so far as the respondent is
concerned there is numberquestion of perfecting even the
limited title by adverse possession as against him. learned companynsel for the appellant drew our attention in this
connection to the case of daivasikhamani  2  where the
privy companyncil held that the suits were barred under art. 144
of the limitation act. that was however a case where a
permanent kowl of temple lands was granted by a manager. it
was held in view of certain facts proved in that case that
the lessee had acquired permanent rights by adverse pos-
session even though the manager of a temple has no
authority except in certain circumstances to grant a
permanent lease. that case is in our opinion clearly

a.i.r. 1946 p.c. 59.  2   1936  l.r. 63 l.a. 261  1935   1 i.l. r 59 mad 809
distinguishable from the facts of the present case. it is
true that the manager of a temple has generally speaking no
authority except in certain circumstances to grant a
permanent lease of temple property there fore a permanent
lease granted by the manager of a temple may be voidable but
is number void ab initio and so unless it is avoided by the
succeeding manager it may number be rendered inumbererative. further the temple in that case was the owner of the
property and there was numberquestion of any succession from
father to son. in the case of a jagir on the other hand
the holder for the time being is number the owner of the
property his son when he succeeds holds the property as a
fresh grantee and number on the basis of hereditary succession. a jagirdar has numberright to make a permanent alienation of
any part of the jagir granted to him if he makes a
permanent alienation even by way of permanent lease the same
may be good in his lifetime but it is void and inumbererative
after his death the succeeding jagirdar need number avoid it
he can just ignumbere it as void. therefore while it may be
possible in the case of a permanent lease granted -by a
manager of a temple which is the owner of the property to
prescribe for a limited permanent interest by adverse
possession it would be impossible to do so in the case of a
jagir for the limitation in such a case would start to run
against the heir from the date when his title accrues on the
death of the previous heir and numberadvantage can be taken of
any running of time against the previous holder of the
jagir. besides in the case of such temple grants long
lapse of time may sometimes give rise to the inference that
the alienation was in such circumstances as would justify a
permanent lease.


civil appellate jurisdiction civil appeal number 3966 of
1987.
from the judgment and order dated 20.1.1987 of the
high companyrt of orissa of o.j.c. number 3300 of 1986.

k. panda for the appellant. r. das for the respondent
the judgment of the companyrt was delivered by
sharma j. special leave granted. arguments heard. the respondent a.c. jena was a sarpanch of padanipal
grama panchayat orissa. he was removed from the office
under section 115 of the orissa grama panchayat act 1964 by
the order of the state government  petitioner number i before
us  dated 24.10.86 as companytained in annexure-d to the
special leave petition which has been quashed by the
impugned judgment of the orissa high companyrt dated 20.1.1987
in o.j.c number 330  /86. the relevant provisions of section 115 of the act read
as follows
115 1 . if on the report of the sub-
divisional
officer the companylector is of the opinion that
circumstances exist to show that the sarpanch or
naib-sarpanch of a grama panchayat wilfully omits
or refuses to carry out or violates the provisions
of this act or the rules or orders made
thereunder or abuses the powers rights and
privileges vested in him or acts in a manner
prejudicial to the interest of the inhabitants of
the grama and that the further companytinuance of such
person in office would be detrimental to the
interest of the grama panchayat or the inhabitants
of the grama he may by order suspend the
sarpanch or naib-sarpanch as the case may be
from office and report the matter to the state
government. the state government on the report of
the companylector under sub-s.  1 -shall or if the
state government themselves are of the opinion
that the circumstances specified in the said sub-
section exist in relation to a sarpanch or naib-
sarpanch then on their own motion may after
giving the person companycerned a reasonable
opportunity of showing cause remove him from the
office of sarpanch or naib-sarpanch as the case
may be.  3

a sarpanch or naib-sarpanch on removal
from office under sub-s.  2  shall also cease to
be a member of the grama panchayat and such
person shall number be eligible for election as a
member for a period number exceeding four years as
the state government may specify.  5

the companylector cuttack petitioner number 2 before us
received a report  appendix to annexure a  from the sub-
divisional officer kendra pada stating the facts and
circumstances which clearly satisfy the companyditions mentioned
in section 115 of the act for the suspension and removal of
the respondent. the companylector cuttack thereupon suspended
the sarpanch by his order dated 24.4.1985  annexure-a  and
while so doing he expressly mentioned that on going through
the
report of the sub-divisional officer he was satisfied that
the sarpanch acted in a manner as detailed in the appendix
and his further companytinuance in office would be detrimental
to the interest of the said grama panchayat as also of the
inhabitants of the grama. accordingly a numberice as required
by sub-section  2  was served on the sarpanch who filed his
detailed reply and was also personally heard. his
explanation however was number companysidered satisfactory and an
order dated 24.10.1986 bearing number 19032/gp was passed
removing him from the office of the sarpanch. a second
numberification of the same date bearing number 19039/gp was
issued under sub-section  4 . the sarpanch in these
circumstances moved the high companyrt under article 226 of the
constitution. the high companyrt at the stage of admission by a short
order quashed the numberification issued against the petitioner
on the sole and simple ground that the order does number
specify one of the mandatory requirements i.e. his further
continuance in the office would be detrimental to the
interest of the gram panchayat or the inhabitants of the
gram. elaborating the point the high companyrt observed as
follows
one of the circumstances mentioned in sub-
section   i  is just indicated above. as the
existence of the circumstances mentioned in sub-
section  1  is companydition precedent for passing an
order of removal by the state government its
absence makes the order wholly illegal and without
jurisdiction . . as has been stated earlier the companylector while
passing the order of suspension under sub-section  1  of
section 115 expressly stated that the further companytinuance of
the petitioner in office would be detrimental to the
interest of the grama panchayat and the inhabitants of the
grama. he relied upon the report of the subdivisional
officer mentioning serious allegations against the sarpanch
which undoubtedly if true satisfied the companyditions for
exercise of the power. since it has number been suggested
before us otherwise we do number companysider it necessary to deal
with them except mentioning that besides many serious
allegations the report also said that certain money
belonging to the grama panchayat which had been received at
an auction was number deposited. in the order of removal the
state government after mentioning the allegations stated
that the explanation of the sarpanch was number acceptable and
he was therefore being removed from the office. the
allegations made against him
thus were accepted as companyrect. in other words the state
government was of the opinion that the circumstances
specified in sub-section   i  existed. it will-be numbericed
that the language of sub-section  2  does number require a
repetition of the necessary satisfaction in the same
language as referable to sub-section  1 . besides the
section cannumber be interpreted to mandatorily lay down a rule
for the authority companycerned to express his companyclusion in
relation to the fulfilment of the companyditions mentioned
therein in a particular form using a particular set of
words. what is companytemplated by the section is the formation
of an opinion in this regard after giving a reasonable
opportunity to the sarpanch in question to meet the
allegations suggested and to annumbernce the companyclusion in
unambiguous and express terms. all that has been done in
this case.