civil appellate jurisdiction civil appeal number 429 of1963. appeal from the judgment and decree dated october 6 1958 of
the punjab high companyrt in civil regular second appeal number340 of
1953.
gopal singh for the appellants and respondent number 11.

n. keswani for respondent number 1.
the judgment of the companyrt was delivered by
bachawat j. the parties are aulakh jats of tehsil ajnala
in amritsar district and are governed by customary law in
matters of succession and adoption. the dispute companycerns
succession to the property of one santa singh alias din
mohammad. santa singh has number been heard of for a long time
and is presumed to be dead. the revenue authorities
sanctioned mutation of the lands left by him in favour of
the defendants who are his companylaterals of the 8th degree. one megh singh was the companylateral of santa singh in the 5th
degree. megh singh died more than 50 years ago. before his
death he adopted his daughters son one kala singh. kala
singh has died leaving his sons dewan singh and gian singh
as his heirs. dewan singh and gian singh instituted a suit
in the companyrt of the subordinate judge first class ajnala
praying for a decree for possession of the lands left by
santa singh and alleging that megh singh adopted kala singh
as his son took him out of his natural family transplanted
him companypletely in the family of megh singh and bestowed on
him the rights of a natural son according to the custom by
which the parties were governed kala singh was entitled to
succeed as a reversionary heir in the family of his adoptive
father and was the preferential heir of santa singh. the
contesting defendants alleged that the adoption of kala
singh amounted to the appointment of an heir only and they
denied that according to custom kala singh was the
reversionary heir of santa singh or entitled to inherit his
lands. the subordinate judge ajnala and the district judge amrit-
sar companycurrently held that the adoption of kala singh was
the usual customary appointment of an heir. the trial companyrt
also held that by the custom of jats in amritsar district an
appointed heir was entitled to succeed companylaterally in the
family of his adoptive father and companysequently kala singh
was the preferential heir of santa singh. on appeal the
district judge amritsar set aside the decree passed by the
trial companyrt and dismissed the suit. he held that according
to custom the adoption of a daughters son was number
permissible and the adoption of kala singh was therefore
invalid. he also held that under the customary law an
adopted son companyld number succeed companylaterally in his adoptive
fathers family if he was a number-agnate i.e. if he did number
belong to the got of his adoptive father. on second appeal
the high companyrt set aside the order of the district judge
amritsar and restored the decree passed by the trial companyrt. the high companyrt held that it was number open to the defendants
to challenge the validity of the adoption of kala singh as
the point was number in issue between the parties and under
the customary law kala singh as the adopted son of megh
singh was entitled to succeed companylaterally in his adoptive
fathers family. some of the defendants number appeal to this
court on a certificate granted by the high companyrt. in agreement with the high companyrt we hold that it is number open
to the defendants to companytend that the adoption of kala singh
by megh singh was invalid. in the written statement the
defendants did number allege that megh singh had numberpower to
adopt kala singh as kala singh was the daughters son of
megh singh. as the validity of the adoption was number in
issue the parties had numberopportunity to lead any evidence
on the question whether by the special custom of the
parties megh singh companyld lawfully adopt his daughters son. the substantial point in companytroversy between the parties is
whether by the custom governing the jats of amritsar
district kala singh was entitled to succeed companylaterally in
the family of his adoptive father. some general customs as
to adoption are found to exist in the punjab and they are
collected in rattigans digest of customary law. some of
the customs observed in the several districts and tehsils of
the punjab are companylected in the riwaj-i-am. there is a
presumption that the entries in the riwaj-i-am are companyrect
and if there is a companyflict between rattigans digest and the
riwaj-i-am numbermally the riwaj-i-am of the locality
prevails see jai kaur v. sher singh  1  salig ram v.
munshi ram  2 . judicial decisions furnish reliable
instances in which the custom in question was recognised or
departed from. oral and documentary evidence of mutations
and other transactions in which the custom was
 1  1960 3 s.c.r. 979  2  1962 1 s.c.r. 470 474-475.
recognised or departed from are also relevant material to
prove or disprove the custom. a customary adoption in the punjab is ordinarily numbermore
than a mere appointment of an heir creating a personal
relationship between the adoptive father and the appointed
heir only see mela singh v. gurdas  1 . there is numbertie of
kinship between the appointed heir and the companylaterals of
the adoptive father. the appointed heir does number acquire
the right to succeed companylaterally in the adoptive fathers
family. the status of the appointed heir is thus materially
different from that of a son adopted under the hindu law. the general custom negativing the right of the appointed
heir to succeed companylaterally in the family of his adoptive
father is stated in art. 49 of rattigans digest of
customary law 13th edn. p. 572 thus

number on the other hand does the heir
acquire a right to succeed to the companylateral
relatives of the person who appoints him
where numberformal adoption has taken place
inasmuch as the relationship established
between him and the appointer is a purely
personal one. the rule in art. 49 does number apply to a formal adoption by
the customary method. the customary formal adoption
completely severs the companynection of the adopted son with his
natural family and transplants him from his natural family
to the adoptive family. such an adoption companyfers on the
adopted son the right of companylateral succession in the
adoptive fathers family and takes away the right of
collateral succession in the natural family. the formal
adoption may be made in accordance with custom and by
observing the customary forms and it is number necessary to
comply with the rules of hindu law in the matter of ritual
or otherwise. see abdur rehman v. raghubir singh  2
waryaman v. kanshi ram  3 . the manual of customary law of the amritsar district by

d. craik in 1914 records the following question and
answer-
question 91--can an adopted son succeed
collaterally in the family of his adoptive
father ? answer 91. all the tribes state that an
adopted son succeeds companylaterally in the
family of his adoptive father with the
exception of brahmans and khatris of neshta
who say that he does number do so. the rule
defined by the companyrts however is that an
adopted son has numberright to
 1  1922 t.l.r. 3 lah. 362 f.b  2  1949 51

l.r. 119.  3  1922 i.l.r. 3 lah. 17.
succeed in this manner. the latest ruling on
this point is p.r. 107 of 1913 in which it was
held that among jat sikhas of the taran taran
tehsil an adopted son appointed by the usual
customary method does number succeed to companyla-
terals as his adoptive fathers
representative. the english translation of the urdu version of the riwaj-i-
am of the amritsar district for the year 1940  ex. p. c/1
records the following question and answer
number of question answer
question
90 can an adopted son all the tribes yes. succeed companylaterally see schedule i for
in the family of his relevant mutations. adoptive father ? see schedule ii for
judgments in civil cases. schedule i annexed to ex. p.c./1 gives 17 instances of
mutations on companylateral successions of adopted sons in the
family of the adoptive father. schedule 11 annexed to ex. c./1 is number printed in the paper book. the english
version of the riwaj-i-am of the amritsar district published
by a. macfarquhar in 1947 gives the list of the relevant
judicial decisions bearing on question 90. the decided cases
show that where the adoption is by way of a customary
appointment of an heir the adopted son does number succeed
collaterally in the adoptive fathers family. the latest
riwaj-i-am refers to the companyrt rulings without disapproval. in the light of the decided cases the entries in the riwaj-
i-am recognising the adopted sons right of companylateral
succession in the adoptive fathers family should be taken
to apply to cases of customary formal adoptions and number to
cases of adoptions by way of customary appointments of
heirs. the relevant judicial decisions may be briefly numbericed. in
jowala singh v. mt. lachmi and others  1   gil jats of
tehsil ajnala amritsar  mangal singh v. tilok singh  2
 sohel jats of tehsil ajnala amritsar  chetu v. jawand
singh and others  3   sikh jats of tehsil taran taran
amritsar  it was held that an heir appointed under the
customary law of jats in the district of amritsar does number
acquire a right to succeed to the companylaterals of the adop-
tive father and in indar singh v. mt. gurdevi  4
 amritsar jats  it was held that he was number a lineal
descendant of the adoptive father within the meaning of s.
59 of the punjab tenancy act xvi of 18 87. 21.7
 1  14 p.r. of 1884.  3  107 p.r. of 1913.  2  61 p.r. of 1894.

a.i.r. 1930 lah. 8 97.
conversely the appointed heir retains the right of
collateral such cession in his natural family. see jagat
singh v. ishar singh     amritsar jats . on the other hand
according to the customs of jats in the amritsar district
in a case of a formal adoption effecting a companyplete
transplantation of the adopted son in the adoptive fathers
family the adopted son is entitled to inherit companylaterally
in the adoptive fathers family. see teju v. kesar singh
 2  affirming the decision of kapur j. in teja singh v.
kesar singh  3 . we thus find that under the customary law of jats in
amritsar district where the customary adoption is formal
and the adopted son is companypletely transplanted in the family
of his adoptive father he is entitled to succeed to the
collateral relatives of the adoptive father. this finding
is in harmony with the riwaj-i-am of the amritsar district
is supported by judicial decisions and is number in companyflict
with art. 49 of rattigans digest. on the other hand if
the customary adoption amounts to a mere appointment of an
heir the appointed heir is number entitled to succeed to the
collateral relatives of the adoptive father. this finding
is in harmony with art. 49 of rattigans digest and the
judicial decisions and is companysistent with the riwaj-i-am
properly interpreted in the light of the decided cases. in teju v. kesar singh  2  it was said that the ordinary
rule in amritsar district is that the adoption is companyplete. in other cases it was said that ordinarly such an adoption
is by way of a customary appointment of an heir. the true
rule appears to be that it is a question of fact in each
case whether the adoption by a jat in the amritsar district
is formal or informal. the adoption is formal if the
parties manifest a clear intention that there should be a
complete change of the family of the adopted son so that he
ceases to be a member of his natural family and loses his
right of companylateral succession in that family and at the
same time becomes a member of the adoptive fathers family
and acquires a right of companylateral succession in the family. the loss of the right of companylateral succession in the
natural family is strong evidence to show that the adoption
is formal and effects a companyplete change in the family. on
the other hand retention of the right of companylateral
succession in his natural family indicates that the adoption
was informal by way of customary appointment of an heir. the onus is upon the plaintiffs-respondents to prove that
the adoption of kala singh was formal and effected a
complete change in his family. on the death of the adoptive
father megh singh kala singh inherited the properties of
megh singh and on the death of kala singh his sons gian
singh and dewan singh inherited those properties. but
these successions are companysistent with the

i.l.r. 11 lah. 645.  2  a.i.r. 1954 punjab 30.

a.i.r. 1951 punjab 117.
informal appointment of kala singh as an heir to megh singh. according to custom the appointed heir succeeds to the
properties left by the adoptive father and on the death of
the appointed heir his male issue succeeds see rattigans
digest of customary law 13th edn. arts. 52 and 54 pp. 572-573. the succession of kala singh as the reversionary
heir of one mst. bhagan is cited as an illustration of
collateral succession of the adopted son in his adoptive
fathers family in the list of mutations given in sch. 1 of
the riwaj-i-am of 1940  ex. p.c. i . but the oral testimony
on the record of this case discloses that mst. bhagan who
was the widow of a predeceased son of megh singh was given
some land by megh singh for her maintenance and on her
death kala singh succeeded to this land. it will appear
therefore that mst. bhagan got a life estate in this land
and on her death the land reverted to kala singh as the
adopted son of megh singh. the succession of kala singh to
this land is therefore number an instance of companylateral
succession of kala singh in his adoptive fathers family
and this was fairly companyceded by learned companynsel for the res-
pondents. companysidering all the circumstances of the case
the trial companyrt and the first appellate companyrt companycurrently
found that the adoption of kala singh was by way of
customary appointment of an heir to megh singh. on second
appeal the high companyrt did number interfere with this finding. the finding is amply supported by the materials on the
record. it appears that after his adoption kala singh
succeeded to the lands left by one makhan his natural
brother and by one hira singh his companylateral in his natural
family. these companylateral successions in the natural family
strongly indicate that the adoption of kala singh did number
effect a change in his family. the adoption of kala singh
was numbermore than a mere appointment of an heir and by the
custom of the jats in the district of amritsar he was number
entitled to succeed companylaterally in his adoptive fathers
family. for this reason the suit out of which this appeal
arises must be dismissed. the district judge relying on mangal singh v. tilok
singh 1  held that as kala singh was number an agnate of his
adoptive father he was number entitled to succeed cc laterally
in his adoptive fathers family even assuming that his a
option was valid.


civil appellate jurisdiction civil appeal number 2231 of
1985.
from the judgment and order dated 8.3.1983 of the
madhya pradesh high companyrt in misc. petition number 1124 of
1982.

satish for the appellants. k. mehta for the respondents. the judgment of the companyrt was delivered by
desai j. special leave granted. a trivial dispute disposed of by an eminently just
and legally companyrect order by the labour companyrt was
unnecessarily interfered with by the industrial companyrt
madhya pradesh which has forced employees working in a
comparatively lower grade to knumberk at the doors of this
court. urban family planning clinic  clinic for short  was
set up at bhilai for implementation of family welfare
schemes of the government of india in accordance with
approved pattern set out in the letter of ministry of health
dated may 16 1963. the chief medical officer of the bhilai
steel plant was to be the administrative officer for the
clinic the entire expenditure of the clinic was met by the
government of india by giving 100 grant though it was
stated as a fact that this amount was number brought into the
bank account of bhilai steel plant but was deposited in a
separate bank account in the state bank of india under the
name and style of bhilai steel plant urban family planning
clinic grant-in-aid account. subsequently on the
recommendation of bureau of public enterprises the clinic
was treated as an integral part of the
1052
administration of bhilai steel plant and the employees
working in the clinic were absorbed as employees of the
bhilai steel plant effective from february 4 1976.
smt. usha rani datta and 11 others who were serving as
aaya attendants etc.  presumably class iv employees  moved
an application before the labour companyrt for a relief that
they are being wrongly treated as fresh employees from the
date of absorption and that their services since the
commencement of employment somewhere in 1964 be treated as
continuous for the purpose of gratuity retrenchment and
leave etc. the application was moved in the labour companyrt
durg but it came to be transferred to labour companyrt at
raipur. the management of the bhilai steel plant companytested the
application companytending that the clinic was an independent
unit set up by the government of india and that it was number
an integral part of the administration of bhilai steel
plant and therefore the services rendered prior to the
absorption on february 4 1976 companyld number be treated as
service under the bhilai steel plant and therefore the
application deserves to be dismissed. the learned presiding officer of the labour companyrt after
hearing both sides and taking into companysideration the
evidence produced before it held that the clinic had hardly
any independent existence and that the employees of the
clinic were in reality and for all practical purposes the
employees of the steel plant. accordingly the application
was allowed and the necessary relief was given. two revision petitions came to be filed before the
industrial companyrt at madhya pradesh set up under the madhya
pradesh industrial relations act. one revision petition
being number 10/mplr/81 was filed by the executive director
bhilai steel plant questioning the companyrectness of the
decision of the labour companyrt. original applicants before the
labour companyrt smt. usha rani datta and others filed a
revision petition being number 2/mpir/81 praying for relief number
granted by the labour companyrt. both the revision petitions were disposed of by a
learned member of the industrial companyrt by a companymon
judgement. taking up the revision petition of the management it
was held
1053
family planning centres were run by different public
undertakings
and it was started as part of the general policy of the
government of india and even though the entire expenditure
of the centre was reimbursed by the government of india the
clinic of the centre companyld number be said to be an industry
within the meaning of the expression in the act number companyld it
be said to be incidental to the main business of the bhilai
steel plant. the learned member further held that the prayer
in the application before the labour companyrt was that the
petitioners before the labour companyrt who were formerly
employed in the family planning clinic should be given
additional and better wages and service companyditions and this
subject was beyond the companypetence of the labour companyrt and
for these reasons the application was number maintainable. accordingly the revision petition filed by the management
was allowed and the revision petition of the original
petitioners was dismissed with a further direction that the
application before the labour companyrt was liable to be
dismissed. after an unsuccessful writ petition number 1124/82 in the
high companyrt of madhya pradesh at jabalpur theoriginal
applicants have filed this appeal by special leave. the findings of facts as recorded by the labour companyrt
and which have neither been departed from number questioned by
the high companyrt clearly point to the inescapable companyclusion
that the clinic had numberindependent existence of its own and
that for all practical purposes it was under the
administrative companytrol of the bhilai steel plant. let us
recapitulate those findings of facts. the clinic was set up
at bhilai somewhere in 1964 according to the approved
pattern set out in the letter of the ministry of health
dated may 16 1963. this letter was annexed as annexure r-l
to the writ petition in the high companyrt. bhilai steel plant
is an wholly owned government of india undertaking. it
received grant to meet the entire expenditure of the clinic. after the independent existence on paper from 1964 to 1976
the pretence was removed and the reality accepted in that
all the employees of the clinic were absorbed as employees
of the bhilai steel plant. this becomes clear from the
letter of the senior personnel manager bhilai steel plant
dated february 4 1976. it provides that the general manager
has approved absorption of family planning staff as regular
employees of the bhilai steel plant under chief medical
officer with imme-
1054
diate effect against posts and scales set out in the
letter. it was further stated that the posts designations
and scales are personal to the existing incumbents and on
finalisation of standard manning designations the
absorbed personnel would be suitably adjusted to the extent
feasible. therefore till the absorption the pretence was
that the clinic even though it wholly under the
administrative companytrol of the chief medical officer bhilai
steel plant who was numbere other than a full-time employee of
the bhilai steel plant was treated independent. absorption
erased the pretence. these facts are number in dispute and were
number companytroverted before us. the learned member of the industrial companyrt with whom
high companyrt appears to have agreed was of the opinion that
when the clinic had its separate existence it was number
covered in the expression industry and that even though
bhilai steel plant is an industry the clinic companyld number be
styled as industry. in our opinion this distinction drawn is
entirely meaningless. if bhilai steel plant is an industry
and if under the decision of this companyrt in bangalore water
supply sewerage board etc. v r. rajappa others  1  an
hospital is an industry this distinction drawn between two
branches of administration of bhilai steel plant attaches
importance to a shadow without substance and substance
without significance the clinic had numberindependent existence
in fact it was an euphimism to call it an independent
undertaking. lt was part and parcel of bhilai steel plant
administrative set-up. may be for purpose of accounting 100
grant received from the government of india was kept in a
separate account but that does number clothe the clinic with
any independent existence. lt was numberhere suggested that the
employees of the clinic were employees of the government of
india this aspect did agitate the mind of the high companyrt
when it observed that it is a moot question whether the
employees in the clinic were employees of the government of
india or of the plant. the undisputed fact is that the
clinic was managed by chief medical officer of bhilai steel
plant with a designation of administrative officer of the
clinic and was accountable for the money received from the
government of india as grant to the undertaking called
bhilai steel plant and if it was never companytended that the
employees of the clinic were the employees of the government
of india indisputably the labour companyrt was perfectly
justified in holding that the employees of the clinic were
the employees of the bhilai steel
 l  1978 3 scr 207
1055
plant working in a department called clinic under the
administrative companytrol of chief medical officer who was
under the overall administrative companytrol of the management
of bhilai steel plant. in our opinion therefore the labour
court was perfectly justified in holding that since the
inception of the clinic the employees were the employees of
the bhilai steel plant and that the absorption was an
acceptance of reality avoiding the pretence. the learned member of the industrial companyrt was in error
in companycluding that whether the application as made was number
maintainable. the reasons which appealed to the labour companyrt
for holding that the application was maintainable are
indisputably unquestionable and the view to the companytrary
does number companymend to us. lastly we may refer to one observation of the high
court which may create companyfusion in future and therefore
requires to be properly understood. says the high companyrt that
the clinic was number a canteen or a hospital run for the
welfare of the employees in the main industry and it was number
opened as an operation incidental to the main industry- the
high companyrt companycluded that for this reason the employees
working in the clinic companyld number be taken to be the
employees employed in the iron and steel industry carried
on by the plant. unfortunately the high companyrt overlooked
that family planning scheme has to be implemented in larger
national interest. public sector undertakings owned by the
government of india may be directed to carry out this
scheme. probably imbued with this idea the clinic was set
up under the administrative companytrol of the chief medical
officer of the plant. if a hospital can be said to be run
for the welfare of the employees of the plant as observed by
the high companyrt one fails to understand how a clinic which
could also be described as a hospital for giving advice in
family planning companyld be differentiated from a hospital
modern hospital can as well have a family planning clinic. the distinction drawn by the high companyrt lacks logic. therefore also one can safely companyclude that the clinic was
an integral department of the plant and had hardly any
independent existence. the independent paper existence was
found unworkable in the long run and therefore the public
enterprises companymittee directed public enterprise to absorb
the employees of the clinic in the establishment of the
plant.


criminal appellate jurisdiction special leave
petition  crl.  number. 1288 to 1301 of 1983.
from the judgment and order dated 31st january 1983 of
the karnataka high companyrt in crl. appeal number. 461 to 474 of
1981.

l. sharma and m. veerappa for the petitioner. the order of the companyrt mas delivered by
chinnappa reddy j. on pleas of guilty the respondent
was companyvicted of several charges under sections 408 and 477a
and sentenced in each case by the trial magistrate to
suffer imprisonment till the rising of the companyrt and a fine
of either rs. 50 or rs. 100. the state preferred appeals to
the high companyrt for enhancement of the sentences. the appeals
were dismissed on the ground that the accused was a young
man who had already been punished sufficiently by the loss
of his job and also in view of the circumstance that more
than ten years had elapsed since the date of offence. we are
prima facie satisfied that the sentences are inadequate and
that the lenient sentences are the result of misplaced
sympathy. we do number however propose to proceed further in
the matter in the exercise of our jurisdiction under article
136 as the state of karnataka who is the petitioner before
us has number chosen to file any papers before us apart from
the judgment of the high companyrt. the least that the
petitioner companyld have done to give us a full picture of the
facts was to file companyies of the charge-sheets and the
charges and companyies of the judgments of the trial companyrt in
the different cases.


civil appellate jurisdiction civil appeal number 331 of 1962.
appeal by special leave from the resolution dated october 4
1959 of the board of revenue bihar in case number 124 of 1959
rajeswari prasad and s. p. varma for the appellant. k. daphtary attorney-general r. k. garg s. c. agar-
wala and d. p. singh for the respondents. the judgment of the companyrt was delivered by
bachawat j. the appellant holds yearly licenses for the
retail sale of companyntry spirit in respect of six shops in the
town of jamshedpur working under the sliding scale system
under the bihar and orissa excise act 1915  bihar and
orissa act 2 of 1915  hereinafter referred to as the act. a
total sum of rs. 11099 was demanded and paid as security in
respect of all the licenses. the original licenses in
respect of the six shops were issued long ago and were
renewed from year to year. by an order dated june 27 1956
the board of revenue bihar directed that the security
deposit of an excise shop working under the sliding scale
system is hereby fixed as equivalent to two months average
license fees of the shop. the security deposit payable by
the appellant on the basis of this direction would amount to
about rs. 68000. on numberember 14 1956 the companymissioner of
excise bihar directed the deputy companymissioner singhbhum to
realise from the appellant the deficit in the security
deposits of his shops. this order was companymunicated to the
appellant on december 7 1956. on january 9 1957 the
appellant filed a petition before the board of revenue
praying for a revision of the order of the excise
commissioner dated numberember 14 1956. by order dated march
20 1957 the board of revenue held that the merits of the
appellants case need number be examined at that stage and
observed that the order of the excise companymissioner would
constitute numberbar to the appellant moving the companymissioner
for companysidering the special circumstances if any of his
case on merits and for this purpose it would be open to
the appellant to move the companymissioner in an appropriate
manner. subsequently the appellant moved the excise
commissioner for reconsideration and setting aside of his
previous order dated numberember 14 1956. by his order dated
march 5 1958 the companymissioner of excise in supersession
of his previous order directed that in the special
circumstances of the case the security deposit in respect
of the appellants shops need number be increased and the
appellant companyld companytinue to manage the shops on the existing
total security of rs. 11099 only. in spite of a repre-
sentation made by the deputy companymissioner singhbhum the
excise companymissioner refused to revise this order. on june
27 1958 at the request of the deputy companymissioner
singhbhum the companymissioner chotanagpur division referred
the matter to the board of revenue. on april 24 1959 the
board of revenue directed the issue of a numberice to the
appellant asking him to show cause why he should number be
ordered to pay the difference between the prescribed
security deposit and the amount already deposited. by a
petition dated july 30 1959 the appellant showed cause. at the hearing of the case before the board of revenue the
appellant was represented by companynsel. by an order dated
october 4 1959 the board of revenue in exercise of its
powers of revision under s. 8 of the act set aside the
order of the companymissioner of excise dated march 5 1958
with the direction that until the expiry of the current
licenses on march 31 1960 there would be numberchange in the
amount of security but the proper security in terms of the
general directions issued by the board should be demanded
from the licensee at the time of the renewal of the
licenses with effect from the next licensing year. the
appellant number appeals to this companyrt from this order by
special leave. on behalf of the appellant mr. rajeshwari prasad companytended
that in view of s. 35 of the act the board of revenue companyld
number under s. 8 of the act revise the order of the excise
commissioner dated march 5 1958. there is numbersubstance in
this companytention. section 8  3  provides that the board may
revise any order passed by the excise companymissioner. section
35 provides that the excise companymissioner may on a
consideration of the list objections and opinions sent to
him by the companylector under s. 34 modify or annul any order
passed or any license granted by the companylector and
numberwithstanding anything companytained in s. 8 his orders shall
be final. the excise companymissioner did number pass the order
dated march 5 1958 in exercise of his powers under s. 35
on a companysideration of the list objections and opinions sent
to him under s. 34. he passed the order in exercise of his
general powers of companytrol over the companylector and the excise
department under ss. 8 and 7 2   a  read with s. 2 7  of the
act. during the currency of the licenses issued to the
appellant for the year 1956-57 a question arose whether the
additional security should be demanded from the appellant in
view of the general directions issued by the board of
revenue on june 27 1956. by his order dated numberember 14
1956 the excise companymissioner directed that the additional
security should be realised from the appellant. on a
revision petition filed by the appellant under s. 8 the
board of
revenue by its order dated march 20 1957 permitted the
appellant to move the excise companymissioner for
reconsideration of his order dated numberember 14 1956. on
being moved by the appellant under the liberty so granted by
the board of revenue the excise companymissioner by his order
dated march 5 1958 reviewed and set aside his previous
order on a companysideration of the general directions issued by
the board of revenue the boards order dated march 20 1957
and the special circumstances of the case. neither the
original order dated numberember 14 1956 number the subsequent
order dated march 5 1958 was passed by the excise
commissioner under s. 35 on a companysideration of the matters
referred to in that section. the finality of s. 35 did number
attach to these orders and the board of revenue had ample
power to revise them under s. 8.
mr. prasad next referred us to s. 40 of the act and the
standard form of license for the retail vend of companyntry
spirit and companytended that only the authority granting the
license companyld fix the amount of the security and one of the
conditions of the license was that the licensee would be
required to deposit only the amount so fixed but the board
of revenue by its order dated october 4 1959 illegally and
in excess of its powers altered the amount of the security
so fixed and the companyresponding companydition in the license for
the deposit of the amount. this argument is based on a
misreading of the order of october 4 1959 and must be
rejected. by that order the board expressly directed that
the would be numberchange in the amount of the security during
the currency of the license. the licenses were due to
expire on march 31 1960. the board directed that if and
when the licenses were renewed with effect from the next
licensing year the proper security should be demanded from
the licensee as a companydition of the renewal. numberexception
can be taken to this direction. the licensee had numbervested
right to a renewal of the license. section 45 of the act
provides that he shall have numberclaim to its renewal. the
licensing authority was number bound to renew the license. if
in its discretion it granted a renewal it companyld require
the licensee to give proper security as a companydition of the
renewal. on a true companystruction of ss. 38 and 91 of the act
it must be held that the board in exercise of its powers
under s. 38 read with s. 91 companyld from time to time issue
general directions with regard to the companyditions of any
license granted under the act including the amount of the
security to be deposited by the licensee. in exercise of
its powers under ss. 38 and 91 the board had fixed the
security deposit of an excise shop
working under the sliding scale system as equivalent to two
months average license fees of the shop. the board was en-
titled to direct as it did by the order dated october 4
1961 that the general directions issued by it under ss. 38
and 91 should be observed and carried out by the licensing
authority and the proper security in accordance with those
directions should be demanded if and when the licenses were
next renewed. mr. prasad next companytended that the direction for the
increase of the security at the time of the renewal of the
licenses is companytrary to the instruction number 101  10  of the
board of revenue at p. 39 of vol. iii of the bihar and
orissa excise manual 1955 edn. mere is numbersubstance in
this companytention. in its order dated october 4 1959 the
board of revenue exhaustively reviewed all the relevant
instructions issued by it from time to time and rightly
pointed out that instruction number 101 10  read with the
boards circular letter number 8624 dated september 9 1956 did
number prevent of the security at the time of the renewal of
the licenses. s. 8  3  of the act companyld be exercised by the board of
revenue only on an application by an aggrieved party and
 b  the proceedings in revision in the instant case were
barred by limitation. there is numbersubstance in these
contentions. the board of revenue may exercise its powers
of revision under s. 8  3  suo motu. numberperiod of
limitation is prescribed by the act for exercise of the
power of revision under s. 8  3 . mr. prasad drew our
attention to paragraph 71 chap. v of part hi of the bihar
practice and procedure manual 1958 pp. 99 and 100 which
provides that where there is numberprovision of law as to the
period within which an application for revision may be
allowed the application for revision should be preferred
within one month of the date of the companymissioners order
deducting the time occupied in obtaining a companyy of the
order but the board has a discretion to admit the
application for revision preferred after one month. in the
instant case in its order dated october 4 1959 the board
stated that it would exercise its powers of revision suo
motu. in a case where the board exercises its power of
revision of its own motion numberquestion of limitation
arises. moreover the board held that this was a fit case
for interference even after the expiry of the ordinary
period of limitation. numberother arguments were advanced before us. we see no
reason to interfere with the boards order.


civil appellate jurisdiction civil appeal number 1599 of
1968.
appeal by special leave from the judgment and order
dated the 16th february 1968 of the calcutta high companyrt in
civil rule number 1030 of 1967.

n. mukherjee and n. r. chaudhury for the appellants. sukumar ghosh for the respondent. the judgment of the companyrt was delivered by
gupta j. this appeal by special leave is directed
against a judgment of the calcutta high companyrt setting aside
in revision the finding of the trial companyrt on the issue
whether the relationship of landlord and tenant subsisted
between the parties in a suit for ejectment. the issue which
arises on the interaction of two statutes the west bengal
premises rent companytrol  temporary provisions  act 1950 and
the west bengal premises tenancy act 1956 which repeals
the earlier act but keeps it alive for proceedings pending
on the date of repeal involves the question is the right
conferred on the sub-tenant by the 1956 act of being
declared a tenant directly under the superior landlord
available to a sub-tenant against whom a suit for ejectment
was pending when that act came into force ? the appeal turns
on the answer to this question. the material facts leading to the impugned order are
these. the respondent was a tenant of premises number 17/1e
gopal nagar road alipore calcutta and his landlord was
one jagabandhu saha the owner of the house dilip narayan
roy chowdhury was a sub-tenant under the respondent in
respect of the ground floor flat paying a monthly rent of
rs. 75/-. the respondent instituted a suit in the munsifs
court at alipore on march 21 1956 when the west bengal
premises rent companytrol  temporary provisions  act 1950 was
in force seeking to evict roy choudhury on the ground that
he was a defaulter in payment of rent. this act was a
temporary statute due to expire on march 31 1956 but on
that date the west bengal premises tenancy act 1956 was
brought into operation repealing the
temporary act before it expired. the material part of
section 40 of the 1956 act which repealed the 1950 act is as
follows
repeal and savings.- 1  the west bengal premises
rent companytrol  temporary provisions  act 1950  in this
section referred to as the said act  is hereby
repealed. numberwithstanding the repeal of the said act-
 a  any proceeding pending on the 31st day
of march 1956 may be companytinued or
 b  x x x x x
as if the said act had been in force and had number
been repealed or had number expired
section 16 of the 1956 act companyfers on the sub-tenant the
right to become a tenant directly under the landlord. sub-
section  2  of section 16 provides inter-alia that where
before the companymencement of this act the tenant with or
without the companysent of the landlord has sublet any premises
either in whole or in part the tenant and every sub-tenant
must give numberice to the landlord of such subletting within
the prescribed period. sub-section  3  of section 16
provides that in any such case where the landlord had number
consented in writing or denies that he gave oral companysent
the rent companytroller on an application made to him either by
the landlord or the sub-tenant shall make an order declaring
that the tenants interest in so much of the premises as has
been sublet shall cease and that the sub-tenant shall become
a tenant directly under the landlord from the date of the
order. the rent companytroller is also required to fix the rent
payable by the sub-tenant to the landlord from the date of
the order. sub-tenant roy choudhury served a numberice under
section 16 2  of the 1956 act upon the superior landlord and
applied under section 16 3  for being declared a tenant
directly under him. on july 31 1956 the rent companytroller
recorded a finding on this application that roy choudhury
was entitled to the declaration asked for overruling the
objections raised by the respondent. on february 23 1957
the rent companytroller companycluded the proceeding under section
16 3  by finally declaring that the sub-tenant was a tenant
directly under the superior landlord with effect from that
date and fixing the rent payable by him. the appeal
preferred by the respondent from this order was dismissed by
the appellate authority. in the meantime on august 21 1956 the respondent had
made an application under section 14 4  of the 1950 act in
the suit for eviction which was pending. section 14 4  of
the 1950 act permitted the landlord to make an application
in the suit for an order on the tenant to deposit month by
month the rent at the rate at which it was last paid and
also the arrears of rent if any and provided that on
failure to deposit the arrears of rent or the rent for any
month within the period prescribed for such deposits the
court would make an order striking out the tenants defence
against ejectment so that the tenant would be in he same
position as if he had number defended the claim to
ejectment. on this application the munsif on september 26
1956 directed the appellant to deposit a certain sum as
arrears of rent and also rent month by month at the rate of
rs. 75/-. after the declaration of tenancy under section
16 3  roy choudhury was permitted to amend his written
statement in the suit by adding a paragraph questioning the
relationship of landlord and tenant between the respondent
and himself. it is unnecessary to refer to the various
proceedings in the suit that followed in the companyrse of
which the high companyrt was moved more than once by either
party. on january 24 1965 roy choudhury died and the
present appellants were substituted in his place in the suit
as his heirs and legal representatives. on numberember 1 1965
the munsif framed an additional issue being issue number 9
which was as follows
has the alleged relationship of landlord and
tenant between the parties been determined by final
orders dated 31-7-56 and 23-2-57 passed by the r. c.
 rent companytroller  calcutta in case number 243b of 1956 ? the munsif took up for companysideration the application under
section 14 4  and the additional issue number 9 together and by
his order dated february 20 1967 found that the rent
controller had jurisdiction to pass the order under section
16 3  declaring the defendant to be a direct tenant under
the superior landlord and that the relationship of landlord
and tenant between the parties ceased by virtue of the order
made under section 16 3 . the additional issue number 9 was
accordingly decided in favour of the defendant and the
application under section 14 4  of the 1950 act was
dismissed. the plaintiff moved the high companyrt in revision
against this order. the revision case was disposed of on
february 16 1968 the learned judge maintained the order
rejecting the application under section 14 4  but set aside
the finding on issue number 9 and held that for the purposes
of the present suit for ejectment there is a relationship of
landlord and tenant. the propriety of this order is
challenged by the tenant defendants. in the companyrse of his judgment the learned judge
recorded the following findings

the validity or the binding nature of the
order under section 16 3  of the 1956 act
cannumber be challenged number can it be found in
this suit to be inumbererative. the rights arising out of a valid proceeding
under section 16 3  cannumber be overlooked in
spite of the number-obstante clause in section
40 of the 1956 act and the effect of the
order under section 16 3  has to be
considered in the suit. as the proceeding under section 16 3  was
started during the pendency of the suit the
principle underlying section 52 of the
transfer of property act should apply to this
case and the decision made in the proceeding
under section 16 3  would number companytrol the
decision in the ejectment suit. it thus appears that the high companyrt was of the view
that in spite of section 40 providing that a pending
proceeding would companytinue to be governed by the provisions
of 1950 act as if that act had number been repealed or had number
expired the order made under section 16 3  of the 1956 act
must be given effect to. the high companyrt however held that
the proceeding under section 16 3  having been initiated
during the pendency of the suit the principle of lis
pendens should apply and accordingly the order under section
16 3  would number govern the suit before us companynsel for the
respondent did number rely on section 52 of the transfer of
property act but sought to support the decree on the ground
that in view of section 40 the entire proceeding under
section 16 3  was without jurisdiction. the doctrine of lis
pendens can of companyrse have numberapplication to this case. section 52 of the transfer of property act forbids
alienations pendente lite providing inter alia that the
property forming the subject matter of a pending suit cannumber
be transferred or otherwise dealt with by any party to the
suit so as to affect the rights of any other party under any
decree or order which may be made therein except under the
authority of the companyrt and on such terms as it may impose. the doctrine of lis pendens means that numberparty to the
litigation can alienate the property in dispute so as to
affect the other party and rests upon this foundation
that it would plainly be impossible that any action or suit
could be brought to a successful termination if alienations
pendente lite were permitted to prevail. observation of
turner l. j. in belamy v. sabine  1857  1 d. j. 566  584
quoted with approval by the privy companyncil in faiyaz husain
khan v. munshi prag narail others 34 i.a. 102  105 . but
a sub-tenant who avails of the provisions of section 16 3
which extinguishes the tenants interest in the portion of
the premises sublet and companyfers on the sub-tenant the right
to hold the tenancy directly under the superior landlord
cannumber be said to have alienated proporty pendente lite. section 5 of the transfer of property act defines transfer
of property as an act by which a living person companyveys
property to anumberher. when the legislature in exercise of its
sovereign powers regulates the relations of landlord and
tenant altering or abridging their rights what it does is
number transfer of property attracting the doctrine of lis
pendens. as stated already companynsel for the respondent put his
case on the provisions of section 40 of the 1956 act. according to him the suit must companytinue to be governed by
the 1950 act even after its repeal in view of section 40
unaffected by the provisions of the 1956 act section 40 of
the 1956 act keeps alive a proceeding pending on the date
when the 1950 act was repealed as if it is still in force
and has number been repealdd. this however does number mean that
even if the 1956 act created a new right in favour of the
sub-tenant he would be denied this right because a suit for
ejectment was pending against him when the act came into
force. tenant as defined in section 2 h  of the 1956 act
includes a person companytinuing in possession after the
termination of his tenancy until a decree or order for
eviction has been made against him. a sub-tenant is also a
tenant and when the order under section 16 3  was made no
decree or order for eviction had been passed against him. that being so we do number see why he
should number be entitled to the benefit companyferred by section
16 3 . the intention of the legislature which is paramount
is clear-to upgrade the subtenant and make him a tenant
directly under the superior landlord. this is a new right
given to the sub-tenant and though the pending proceeding
may companytinue to be regulated by the repealed statute in view
of section 40 there is numberhing in that section to suggest
that the sub-tenant against whom a suit was pending will be
denied this additional right. the high companyrt has held that
the effect of the order under section 16 3  must be
considered in the suit. thus the suit may companytinue in spite
of the repeal of the 1950 act but the right acquired by the
sub-tenant under the 1956 act has to be given effect to and
the suit decided accordingly.


criminal appellate jurisdiction criminal appeal number 43
of 1965.
appeal by special leave from the judgment and order
dated numberember 10 1964 of the allahabad high companyrt in
criminal revision number 2097 of 1963.

c. misra for the appellant. p. rana for the respondent. the judgment of the companyrt was delivered by-
sarkar j. this appeal raises a question of
construction of sub-s.  1  of s. 16 of the prevention of
food adulteration act 1954. the sub-section in providing
for punishment for breaches of the act states for a second
offence with imprisonment for a term which may extend to
two years and with fine. in respect of the first offence it
provides for a smaller sentence. the question is whether the
appellant was liable to punishment for a second offence. the
order of this companyrt granting leave to appeal companyfined it
only to that question. it appears that on an earlier occasion the appellant
kept fonds-tuff for sate in a companytainer without companyering it
as required by sub-r.  3  of r. 49 of the rules made under
the act and was thereupon companyvicted under s. 16 and
sentenced to a fine of rs. 40/- as tot a first offence. this
time he has been companyvicted for selling foodstuff which had
been companyoured with a dye the use of which was prohibited by
r. 28 of the same rules. learned companynsel for the appellant stated that the
present was number a second offence. if we have understood his
arguments companyrectly and we companyfess to some difficulty in
understanding them he said that the second offence
contemplated is an offence companystituted by the same kind or
type of act for which he had been companyvicted under the act on
an earlier occasion. according to him if the present
conviction was for keeping foodstuff intended for sale in a
container number companyered as required by sub-r.  3  of r. 49
then only it would have been for a second offence but as
the companyviction in the present case was for selling foodstuff
coloured with prohibited dye it was number for a second
offence. this companytention does number seem to us to be acceptable. this real question is what do the words second offence
mean? learned
counsel for the appellant referred us to websters new world
dictionary where one of the meanings of the word second
has been stated to be of the same kind as anumberher. that
meaning cannumber be attributed to that word in the sub-
section. it increases the penalties as the offences are
first second or third. thus it states for a third
and subsequent offences with imprisonment for a term
which may extend to four years and with fine. the word
subsequent makes it clear that the words first second
and third were intended to indicate things happening one
after anumberher in point of time. sub-section  2  of s. 16
also leads to the same companyclusion. it says if any person
convicted of an offence under this act companymits a like
offence afterwards the subsequent companyviction and the
penalty imposed with his name and address may be published
in a newspaper at his expense. the word afterwards clearly
indicates that the statute was companytemplating offences
committed subsequently and was indicating a sequence of
time. in the dictionary to which learned companynsel referred
the meaning on which he relies is illustrated by the
following sentence there has been numbersecond shakespeare. it seems plain to us that the meaning companyveyed by the word
second in this sentence cannumber be attributed to the word
second as used in the sub-section. then as regards the word offence in the expression
second offence we find numberjustification for companyfining it
to an offence companystituted by the same type or kind of
conduct as the previous offence. the sub-section does number
say second offence of the same type the latter words are
number there. the object of the sub-section clearly is to
prevent repetition of offences. that is why for the offence
subsequently companymitted a heavier sentence is provided. we
cannumber imagine what object would have been served by seeking
to stop the repetition of the same type of companyduct only. the
act numberdoubt intends to prevent the doing of various acts by
punishing them. that object is better served by imposing a
heavier penalty when a person repeats any of such offensive
acts the gravamen of the charge of a second offence is the
repetition of any offence under the act and number the
repetition of one of the various types of offences mentioned
in it. any interpretation which would number carry out the
object of the act would be unnatural. we therefore think
that the words second offence mean any offence under the
act companymitted by a person after his companyviction earlier for
any one of the offences punishable under the act. it was said that it would be strange if the act intended
to impose a heavier punishment for a second offence which
might be of a trivial nature while the first offence which
might have been of a serious nature entailed a lighter
punishment. this companytention is fallacious. there is no
foundation in the act for distinguishing between trivial and
serious offences for the act provides the same punishment
for each offence under it. if the punishment is
the same it would follow that the statute companysidered them
to be of the same seriousness. the weakness of this argument
will further appear if we companysider a case where the first
offence was of what is called a trivial nature and the
second of a serious nature though companystituted by different
acts. it would be equally strange if the act in such a case
contemplated the same punishment for the subsequent and
serious offence as would be the case if the subsequent
offence was number a second offence . this companytention lends
numbersupport to the interpretation suggested by learned
counsel for the appellant. learned companynsel then said that the word offence has to
be understood as defined in s. 2 38  of the general clauses
act 1897 and therefore means any act or omission made
punishable by any law for the time being in force. if we
substitute this definition for word offence in the
provision number under companysideration it will mean an act made
punishable by the law. that law must be the present act. this does number assist learned companynsels companytention at all it
really goes against him. the word offence numberdoubt refers to an offence under
the act. it cannumber possibly mean any offence under any other
act. this view has invariably been taken in all the cases
which have been cited to us see city board saharanpur v.
abdul wahid 1  and chuttan v. state.  2  in in re authers 3
it was said where the legislature passes a statute and
imposes a penalty of 501. for a first offence it must mean
in the absence of express words to the companytrary that the
conviction for the first offence must be under that act and
the second companyviction under the same act if it were
otherwise it would be idle to introduce the warning of a
lower penalty for the first offence and to impose a higher
penalty for the second. this case supports our
interpretation of the words second offence based on the
object of the act. learned companynsel for the appellant numberdoubt agrees that
the second offence must refer to an offence under the act
but he says that since it would amount to adding the words
under the act it would justify the addition of further
words implying that the second offence had to be of the same
type as the first. this is a wholly unfounded companytention. the offence companytemplated in the expression second offence
has to be under the act because that arises from the object
of the act and. as we shall later show from the necessary
implication of the structure of the sub-section. there is no
such reason to companyfine the second offence to an offence of
the same type. we have so far been dealing only with that portion of
sub-s.  1  of s. 16 which companycerns the penalty for the
second offence. companysidering the sub-section as a whole we
find that it supports the

a.i.r. 1959 all. 695.

a.i.r. 1960 all. 629.  3   1889  l.r. 22 q.b.d. 345 349.
interpretation of the expression second offence which has
appealed to us. it says that if any person does any of the
acts mentioned in cls.  a  to  g  in it he shall be
punishable for the first offence with a certain penalty for
the second offence with a higher penalty and for the third a
still higher penalty. it is clear that the acts or omissions
mentioned in the different clauses companystitute offences for
which the penalties are provided. from this structure of the
subsection the implication necessarily arises that the
penalties were imposed for offences under the act only. number
cl.  a  deals with a person importing manufacturing for
sale storing selling or distributing any article of food
in companytravention of the provisions of the act or of any
rule made thereunder. this clause companytemplates the breaches
of various provisions of the act and the rules which are
numerous. it companyers various types of companyduct act or
omission each of which is punishable and each of which is
therefore an offence. turning next to that part of the sub-
section which prescribes penalties we find it provides
increasing degrees of punishment for the second offence and
the third and subsequent offences. it follows that an
offence companytemplated in this part of the statute and with it
we are number directly companycerned-would be companystituted by any of
the acts which would companye within el.  a  and likewise within
all the other clauses following it. we have pointed out that
the acts and omissions companytemplated there are of diverse
kinds.