civil appellate jurisdiction civil appeals number. 1164 and
1165 of 1967.
appeals from the judgment and order dated december 1 1965
of the madhya pradesh high companyrt indore bench in misc. petition number. 18 and 19 of 1964.

s. k. sastri m. n. shroff for i. n. shroff for the
appellant  in both the appeals . r. l. lyengar r. a. gupta and k. b. rohatgi for the
respondent  in c. as. number 1164 of 1967 . c. bhartari j. b. dadachanji o. c. mathur and
ravinder narain for the respondent  in c. a. number 1165 of
1967 . the judgment of the companyrt was delivered by
mitter j-the state of madhya pradesh has companye up in appeal
to this companyrt from two orders of the state high companyrt
allowing two writ petitions filed by the two respondents
herein for quashing the orders of eviction made against them
under section 3 of the madhya pradesh government premises
 eviction  act. the facts in civil appeal number 1164 of 1967 are as follows. many years back a former ruler of the indian state of
jhabua in central india had given a jagir to his mistress
paswanji smt. navratanbai. navratanbai had either purchased
or companystructed two houses on companylege marg. according to the writ petition fled in the high companyrt the
acquisition was out of her private funds. his was number
however admitted in the return to the petition. the
successor of the former ruler dilipsingh purported to
forfeit the jagir in the year 1943. the order of forfeiture
is number on record but is sought to be borne out by an order
dated 1st april 1948 evidently made in anticipation of
the merger of the state in the union of madhya bharat which
took place on june 29 1948. the order addressed to
paswanji navratanbai ran
in september 1943 your jagir was companyfiscated
to the state and you were granted rs. 100 per
month by way of allowance vide parwana number
1735 dated 23-9-1943 and this amount was being
paid to you on behalf of the huzur from the
civil list because such types of allowances
etc. are paid from it. but number as new
arrangements are being
made regarding the states of malwa and there
is likelihood of reduction in the percentage
of the civil list therefore the aforesaid
monthly allowance shall henceforth be paid to
you every month from state treasury from
generation to generation. you may reside in the two big houses of khasgi
during your lifetime in which you are residing
at present. after your lifetime both these
houses shall be taken in possession of the
huzur. you shall have numberright to sell or
mortgage or create any charge on these
houses. there is anumberher huzur order on record dated
30th march 1948 purporting to declare a large
number of immovable properties as the private
property of the ruler and the ruling family. among the properties set out at the foot of
the order are mentioned
6.  e  all houses which are occupied by bapu
ram singh. all houses which are in the occupancy of
navratanbai. when the question of settling the list of private properties
of the rulers of the integrating estates in madhya bharat
came up before the government of india the political and
external department of the madhya bharat secretariat passed
an order recording a decision regarding the settlement of
private properties of the state of jhabua. the memorandum
dated july 25 1949 of the madhya bharat secretariat
political and external department shows that each
department companycerned had to take action for handing over all
the property to the ruler companycerned and to see that no
property out of the properties belonging to the ruler and or
the state before the formation of madhya bharat was left
with the ruler excepting the properties in the enclosed
list. the relevant list for the ruler of jhabua did number
include the properties occupied either by bapu ramsingh or
paswanji navratanbai. paswanji navratanbai protested
against the inclusion of her houses in the list of private
properties made out by the ruler of jhabua and addressed a
memorandum to the raj pramukh of madhya bharat union for
amendment of the inventory submitted by the said ruler. no
steps appear to have been taken to evict navratanbai from
the said premises in her lifetime. on 30th april 1962 the
executive engineer district dhar submitted an application
under section 3 read with section 4 of the madhya pradesh
government premises  eviction  act 1952 for eviction of the
respondents in appeal number 1164 of 1967 from the two
properties formerly belonging to navratanbai before the. sub divisional officer jhabua companystituted the companypetent
authority under the act. an order of eviction made
by the sub divisional officer was upheld in appeal to the
collector. shivkunwarbai widow of late bapu gordhansinghji
son of navratanbai filed a writ petition in the high companyrt
for quashing. the said order. appeal number 1164/1967 is from
the said order. the facts in the other appeal i.e. 1165 of 1967 are similar
to the facts just narrated. in this case the same former
ruler had granted a jagir to his son ramsingh by his
mistress paswanji bhagirathibai. the succeeding ruler
purported to forfeit the jagir and granted a monthly
allowance of rs. 100. an order similar to the one dated
30th march 1948 already mentioned was passed while the order
of april 1 1948 affected ramsingh as it did navratanbai in
the other case. there was an order of eviction as in the
other case followed by a writ petition to the high companyrt. the central question in these two appeals is whether the
state of madhya bharat ever became entitled to these
properties in the facts and circumstances mentioned which
justified its attempt to evict the respondents under the
provisions of the act of 1952. this would depend on the
finding as to whether these properties were taken over by
the union of madhya bharat following the merger of the state
of jhabua therein in 1949. the fact that some only of the
properties set forth in the declaration of 1st april 1948
and claimed by the ruler as private property were accepted
as such by the government of madhya bharat does number lead
to the inference that all the other items of property in the
said declaration were taken over by an act of state. there
must be some positive evidence of such act. it is also
possible that the list had wrongly included properties
belonging to citizens of the state of jhabua about which
there was numberadjudication. the records only show that out
of the list of properties submitted by the ruler a certain
number of them was treated by the government of india as
being his private properties. there was numberfinding with
regard to the others that they appertained to the ruler as
distinct from his private property. as these properties
originally belonged to the predecessors-in-interest of the
respondent i.e. in c. a. 1166/1967 and the respondent in c.
a. 1165/1967 there must be some evidence of displacement of
their title before the eviction act companyld be made applicable
to them. in order to succeed in the appeals the appellant
must first establish that the properties had been
confiscated by the ex-ruler and had ceased to belong to
navratanbai or bapu ramsingh. the order of april 1 1948
records the companyfiscation of the jagirs and does number record
that the houses in the possession of navratanbai were
similarly companyfiscated assuming that companyfiscation was
possible by a mere order of this type. on the other hand
the order shows that bai navratanbai was to have full use of
the houses for her lifetime but she was number to sell or
mortgage the
same. the declared that after her lifetime the property
would be taken possession of by the huzur does number amount to
an order of companyfiscation and a re-grant thereof for the
donees lifetime. if the properties remained the property of
nawatanbai after the passing of the said order of 1948
numberhing was done thereafter to show that she lost her
interest in the provides or that the same passed to the
union of madhya bharat ailed from the said union to the
state of madhya pradesh. when attempts are made to deprive
a person of his lawful inheritance it must be shown by
irreproch able evidence that the person in possession ceased
to have any interest therein at a particular point of time
and that by some process of law the property vested in the
person seeking to eject he former lawful possessor. there
is numbersuch evidence in this case. it follows that the
properties the subject matter of the two appeals never
became the properties of the ruler of jhabua ownership
whereof passed to the union of madhya bharat and from the
union to the state of madhya pradesh. section 3 of the
madhya pradesh premises  eviction  act 1952 enables the
competent authority under the act to order inter alia that
the person in un auhorised occupation lot any government
premises to vacate the same within 30 days of the date of
the service of the numberice in terms of the section. section
4 empowers the companypetent authority to assess damages on the
ground of use and occupation by any person in unauthorised
occupation of any government premises.


criminal appellate jurisdiction criminal appeal number
688 of 1980.
from the judgment and order dated 20.2.1978 of the
madras high companyrt in crl. appeal number 306 of 1977.

v. venkataraman and k.v. vishwanathan  n.p.  for the
appellant. k. garg and v.j. francis for the respondents. the judgement of the companyrt was delivered by
mohan j. the respondents were accused 1 and 2. they
were tried by the learned session judge of the
tiruchirapalli division in sessions case number73 of 1976. both
the accused along with a juvenile selvaraj were tried for
using criminal force to anjali  p.w.1  with the intention of
outraging her modesty at about 4.30 p.m. on 28th july 1976
at pullambadi village an offence punishable under section
354 i.p.c. the first accused karuppusamy was also tried for
the offence of murder of one muthusamy of thappai village on
the same day and at the same time and place in that he cut
him with an aruval  sickle  and severed his head an offence
punishable under section 302 i.p.c. the second accused
natarajan was also tried under section 302 read with section
34 i.p.c. in that the murder of muthuswamy was companymitted by
the first accused in furtherance of the companymon intention of
both the accused. the first accused was also tried for an effence of
causing disappearance of evidence. in that the severed
head of muthusamy was companycealed in bush an offence under
section 201 i.p.c. juvenile selvaraj who was present at the time of
outraging the modesty of anjali  p.w.1  was also tried for
an offence under section 354 i.p.c. the learned sessions judge found the first accused
guilty of the offence punishable under section 354 302 and
201 i.p.c. accordingly he was companyvicted and sentenced to
undergo rigorous imprisonment for three months under section
354 i.p.c. imprisonment for under section 302 i.p.c. and
rigorous imprisonment for two years under section 201 i.p.c. the sentences were to run companycurrently. the second accused was acquitted of the charge under
section 354 i.p.c. however he was found guilty under
section 302 read with section 34 i.p.c. and was companyvicted
and sentenced to undergo imprisonment for life. the juvenile accused was acquitted. aggrieved by the companyviction and the sentence accused 1
and 2 took up the matter in appeal to the high companyrt of
madras in criminal appeal
number 306 of 1977. both the accused were acquitted by the
high companyrt holding that the prosecution had number proved the
case against any of the accused satisfactorily and beyond
all reasonable doubt. the case of the prosecution can be briefly stated as
under
on 28th of july 1976 at about 4 p.m. p.w.1 anjali
aged 22years was grazing her sheep in the fields of
pullambadi. accused 1 and 2 and juvenile selvaraj were also
grazing their sheep nearby. they came near p.w.1. accused
1 suddenly pushed her down. the other two stood on either
side of p.w.1. accused 1 pulled up her saree in order to
outrage her modesty. however she managed to escape and ran
towards the road between thappi and pullambadi. accused 1
was armed an aruval  sickle   m.o.2  while accused 2 had
also an aruval  m.o.3 . at that time the deceased
muthusamy paternal uncle of p.w.1 was going on a bicycle. his 11 year old girl p.w.2 rajamani was carried by muthusamy
on the carrier of the bicycle as she was returning from the
school. on hearing the shouts of p.w.1 the deceased got
down from the bicycle. p.w.1. narrated the incident. by
then the accused also came there. thereupon the accused
were questioned and the deceased muthusamy told the accused
that he would report the matter of the village panchayat. the accused became defiant and threatened the deceased only
if he were left alive he would be able to report the matter
to the panchayat. at that time one daiveegan from thappai
village came along the road. he advised them to go to their
village and went away. accused 2 caught hold of the right
hand of the deceased. accused 1 cut the hand. the deceased
warded off the cut with his left hand. in that process the
thumb and the fingers were severed. accused 1 cut the
deceased on the left hand head neck and right shoulder. the deceased fell down. then accused 1 cut off his head
with his aruval. when p.w.1 cried on seeing this ghastly
sight p.ws. 4 and 5 and one sarvanan came running to the
place. accused 2 ran away throwing his aruval  m.o.3 . accused 1 also ran away carrying the head of the deceased
and his aruval  m.o.2 . when p.w.5 and sarvanan chased the
first accused he threatened them with dire companysequences. therefore they returned. p.w.4 also chased accused 2 for
some distance but companyld number catch him. he also returned. in
the meanwhile p.w.1 ran shouting to the village p.w.2
the daughter of the deceased who was at the scene of
occurrence was taken to her house by some of her classmates. at about 5.30p.m. p.w.1 gave a report to p.w. 6  the
village munsif . that statement was reduced to writing
under ex.p-1. he went to
the scene of occurrence. then he sent ex. p-1 with his own
report  ex.p-5  to the kallaikudi police station. companyies of
the same report were sent to the magistrate at lalgudi. sub-
inspector  p.w.10  registered a case acting on ex. p-1 at
7.30 p.m. under section 302 and 354 i.p.c. immediately he
sent express report to his superiors and proceeded to the
scene of occurrence at 8.45 p.m. thereafter he went in
search of accused. the inspector  p.w.11  came to the scene of occurrence
at 11.30 p.m. and took up investigation. he prepared an
observation mahazar  ex.p-7 . he held an inquest at which

ws. 1 2 4 and 5 sarvanan deiveagan and others were
examined. he recovered blood-stained earth and the aruval
dropped by accused 2 and the cycle on which the deceased was
proceeding  m.o.5  under mahazar  ex.p-8 . the next morning p.w.11 arrested accused 1. in the
presence of p.w.6 the village munsif karnam accused 1 gave
a companyfessional statement. acting on that statement the
inspector recovered the head of the deceased from a bush as
well as aruvel  m.o.2  from anumberher place which was rolled
up accused 1s underwear  m.o.7 . on the same day the
inspector examined p.w.7 from whom the details relating to
the hiring of the bicycle were gathered. w.3 the doctor  companyducted the post-mortem at 4.00

m. and fond the head and the body belonged to the same
person. the head had been companypletely severed by cutting
through the third and forth vertebra. he also found the
incised injuries on the right and the left side of the neck
on the right shoulder on the middle of the left forearm on
the left hand exposing bones and muscles of the hand. he
opined that the death was due to shock and haemorrhage. he
further opined that the injuries companyld have been caused by
an aruval like  m.o.3 . the respondents were tried before the learned sessions
judge of tiruchirapalli on four charges. the defence was
one of denial. according to accused 1 who filed the written
statement the deceased saw him talking and laughing with

w.1. on that account he became very angry abused accused
1 and beat p.w.1. he denied that he either molested p.w. 1
or cut the deceased and the case was foisted on him. though
as stated above the learned sessions judge companyvicted both
the accused the high companyrt acquitted them. special leave
was granted by this companyrt on 22nd of october 1980. hence
the present appeal by the state. the learned companynsel appearing for the state of tamil
nadu mr. k.v. venkataraman urged that the high companyrt had
completely misdirected itself with regard to the
appreciation of evidence. in this case there are four eye-
witnesses p.ws. 1 2 4 and 5. their evidence has been
lightly dealt with. merely because p.w.1 did number knumber the
names of p.ws.4 and 5 it does number mean her evidence is
liable to be rejected. she being a rustic woman ignumberance
of names would number matter. she has graphically spoken as to
what actually happened prior to the murder and about the
murder as well. when her modesty was about to be outraged
she escaped and came to the road and narrated the incident
to the deceased. numbermally in a village numberwoman would companye
forth with such a plea since by that statement her honumberr
itself would be at stake. the high companyrt erred in holding that the evidence of

w.1 is thoroughly unreliable merely on the ground that
she was number able to identify p.ws. 4 and 5 she companyld number
name them properly. as regards evidence of p.w.2 she being a child witness
and having numbermotive against the accused her evidence ought
to have been accepted. so long as the trial companyrt had found
that she was in a position to discern as to what was truth
and what was falsehood the failure to administer oath would
be of numberconsequence. to expect a child of that tender age
to companye to the scene of occurrence during night is to ask
something unnatural. where p.ws.1 and 2 were in an agitated
mood after witnessing a gruesome murder they companyld number be
expected to behave in a calm and companylected way. the evidence of p.ws. 4 and 5 have been rejected solely
on the ground that they did number mention the accused severing
the head and carrying the head away. as regards
identification also to characterise it as force is number
correct. the failure of p.w. 11 to numbere the presence of
sheep or goats around the scene of occurrence is immaterial. thus looking from any point of view the acquittal as
ordered by the high companyrt is unsupportable. mr. r.k. garg learned companynsel for the defence would
submit first and foremost on the basis of a decision of this
court in state of jammu kashmir v. hazara singh anr. 1980 supp. scc page 641 at 644 para 10 that unless the
appreciation of evidence by the high companyrt is perverse this
court numbermally would number interfere against an order of
acquittal. in this case it cannumber be companytented that the
appreciation of the evidence by the high companyrt is perverse. ws. 4 and 5 from the
age of her discretion. therefore numbermally speaking she
should have had numberdifficulty in mentioning their names and
properly identifying them. that she should mention the name
of deiveegan as muthu is rather strange. even the case of
prosecution is that deiveagan advised the parties to
amicably go away from the scene of occurrence. such a
person cannumber be mistaken for muthu. it is against all
probability that she would return home without even caring
for the sheep or the goats which she was grazing. equally
for very valid reasons the evidence of p.w.2 had to be
rejected by the high companyrt. p.ws. 4 and 5 have been
purposely introduced in order to bolster up the case of the
prosecution. there is also a good deal of doubt as to
whether p.w.11 prepared the report on that day or later. whatever it be if it is an axiomatic principle that it is
the duty of the prosecution to establish the guild beyond
all reasonable doubt that has number been so established in
this case. hence numberinterference is warranted. we will number proceed to examine the merits of the
respective companytentions. the learned trial judge has held
that in appreciating the evidence of p.ws. 1 and 2 one has
to take into account their state of mind at that time when
they saw a ghastly murder in that the head of the deceased
was companypletely severed. unfortunately this important
factor has number been properly appreciated by the high companyrt. from the evidence of p.w.1 it is clear that she
graphically gave an account as to the happenings. being a
rustic woman in that agitated mood she might have companymitted
one or two mistakes in the actual identification or as to
who chased accused 1 or accused 2. these in our companysidered
view are bound to happen. only a tutored witness can
depose in a parrot-like fashion. on the companytrary a natural
witness is bound to companymit mistakes. in the instant case
the mistakes are so inconsequential and immaterial when she
mentions the name of muthu wrongly instead of deiveegan. we
are unable to see as to how on that score it should be held
that her evidence does number inspire companyfidence. equally we
are of the view that the presence or absence of the sheep or
goats whether numbered or number can have numberbearing on the case
of the prosecution. therefore the failure of p.w. 11 to
numbere their presence would number affect the case of the
prosecution. the characterisation that the evidence of p.w.1 does
number inspire companyfidence as the high companyrt has held seems to
be wrong. numbermally in a village numberwoman would companye
forward unless it is true with a plea that her modesty was
outraged. as rightly companytended by the learned companynsel for
the state by such statement her very honumberr was at stake. companying as she does from a cloistered society her whole
future would become bleak. after all what was the motive
for her to say this against the accused. it has number been
brought out in cross-examination that there was any enmity
between p.w. 1 on the one hand and the accused on the other. she would number even implicate a juvenile accused. her failure to state in the report  ex. p-1  the
details should number make the companyrt reject her evidence. the doubt raised by the high companyrt that ex. p-1 was number
prepared on that day seems unwarranted when it companytains the
initials bearing the time and date as 9.30 p.m. and
28.7.1976. the learned sessions judge was fully satisfied by
summoning the production of the despatch register of
kallakudi police station that exs. p-1 and p-5 were received
on that day in the station. the suggestion by the defence
that the learned magistrate had obliged the police to put
the date as 28.7.76 and the time as 9.30 p.m. was rightly
rejected as an extreme companytention by the learned sessions
judge which unfortunately was doubted by the high companyrt. the line of reasoning adopted by the high companyrt in
appreciating the evidence of p.w.2 is number companyrect. according to the high companyrt her failure to mention the names
of p.ws. 4 and 5 and sarvanan in the companyrse of
investigation her failure to companye to the scene of the
occurrence during the night and her going to the scene of
occurrence only the next day along with her mother are all
factors on which the evidence of this child witness was
rejected. we hardly find any justification to reject the
evidence of p.w.2. the learned sessions judge has
appreciated that she had a discerning mind as to what was
truth and what was falsehood. therefore the failure to
adminster oath is of numberconsequence. we have cautioned
ourselves of the possibility of tutoring she being a child
of tender age. she witnessed a ghastly murder where her
father himself was killed. one cannumber brush aside the
agitated mood and the mind in which the tender child would
have been. it must have been the rudest shock of her life. to expect her in that situation to give the details as to
who chased accused 1 or 2 or to expect her to go to the
scene of occurrence on that very night would be asking for
too much. after all she did state the two persons chased
the accused. that should be enumbergh as was rightly held by
the learned sessions judge. then again her failure to inform her mother is number a
factor which would make her evidence number creditworthy
because by then the mother
had companye to knumber of murder. if it was a false case being
foisted on the accused we do number think that such natural
imperfections would have surfaced. merely because w.p. 2
did number give details as to whether the deceased caught hold
of the hair of the first accused etc. does number give rise to
any doubt as to the occurrence. it will be too much to
expect from a child to give such intricate details. it will
be too much to expect from a child to give such intricate
details. therefore we companyclude on the evidence of p.ws. 1
and 2 alone that the prosecution has fully established its
case. besides there is the evidence of p.ws. 4 and 5. we
are number in a position to appreciate the finding of the high
court that they have been introduced to strengthen the case
of the prosecution. the learned sessions judge has rightly
accepted their evidence. one important factor in our companysidered opinion was
missed by the high companyrt. pursuant to the companyfessional
statement of the first accused the recovery of the severed
head and m.o.2 would be an admissible piece of evidence. after the arrest the first accused took p.w.11 and p.w.6 to
a bush in a place one mile numberth of thappai village and
produced the head. at that place an inquest was held in
which the inspector examined p.ws. 1 2 4 and 5. then the
first accused took them to anumberher bush in the burial ground
of s.p.g. mission church from where m.o. 2 had been
recovered companycealed in the underwear  m.o.7 . this aruval
according to the analysts report companytained human blood. the dhoti worn by the accused m.o.8 which was seized from
him also companytained human blood. this part of the companyfession
which led to the recovery of the severed head and m.o.2 is
clearly admissible under section 27 of the indian evidence
act. this goes a long way to companyroborate the case of the
prosecution. in the whole we are satisfied that the
appreciation of the evidence by the high companyrt is erroneous
and has resulted in miscarriage of justice. therefore we
find numberscope for the application of the ratio laid down at
para 10 of page 644 in state of j k  supra  on which
reliance has been placed by mr. r.k. garg learned companynsel
for the defence.


civil appellate jurisdiction civil appeals number. 1267
and 1268 of 1978.
from the judgment and order dated 3.4.78 of the
punjab
haryana high companyrt in regular second appeal number. 105 and
601 of 1971.

v. sehgal s.k. bagga ms. shurestha bagga ved
prakash jyani and seeraj bagga for the appellants. anil kumar gupta for the respondent. the judgment of the companyrt was delivered by
bharucha j. the learned single judge of the high companyrt
of punjab haryana found numbermerit in regular second appeal
number601 of 1971 and dismissed the same with companyts. he
allowed to the extent indicated in the judgment and order
under appeal regular second appeal number 105 of 1971 with no
order as to companyts. learned companynsel for the appellants fairly stated that
in view of the judgment of this companyrt in atam prakash v.
state of haryana ors. 1986 2 s.c.c. 249 there was no
merit in the appeal against the order on regular second
appeal number 601 of 1971.
learned companynsel for the appellants however companytended
that the decree made in regular second appeal number105 of 1971
was in favour inter alia of dead man namely the second
appellant rup ram and that therefore the decree should be
set aside. we find that after rup ram died an application  civil
miscellaneous number1122/c of 1975  under order 22 rule 9 read
with section 151 of the companye of civil procedure was made
praying that delay be companydoned the legal representatives of
the deceased appellant rup ram be allowed to be brought on
record and the abatement if any be set aside. simultaneously a second application  civil miscellaneous
number1123/c of 1975  was filed under order 22 rule 3 read with
section 151 of the companye of civil procedure praying that the
three sons of rup ram be brought on record as appellants in
his place. in the order under appeal the learned single
judge stated since r.s.a number601 of 1971 has been
dismissed civil miscellaneous application number.1122-c and
1123-c of 1975 have become infructuous and the same are also
dismissed. clearly there a misapprehension in the mind of the
learned single judge. the aforesaid applications were made
to bring the heirs of rup ram on record as appellants in
appeal number105 of 1971 and since
the learned single judge was allowing that appeal in part
he ought to have companysidered the two applications on merits. however this is number a good ground for setting aside the
decree. at the most there would be a case for remand but
even that we think is number necessary for the applications
are clearly allowable. there was a delay of 15 days in the
application to bring the heirs on record and it was
explained supported by a medical certificate that the
third appellant who was looking after the appeals before
the high companyrt had suffered from typhoid during the
relevant period.


original jurisdiction writ petition number 1880 of 1973.
petition under article 32 of the companystitution of india. c. mittar for the petitioner. k. chatterjee g. s. chatterjee and sukumar basu for
the respondent. the judgment of the companyrt was delivered by
goswami j.-by this application under article 32 of the
constitution for a writ of habeas companypus the petitioner
challenges the validity of the order of detention passed by
the district magistrate birbhum on march 21 1973 under
section 3 of the maintenance of internal security act 1971
 act number 26 of 1971 . the order of detention is passed on
the ground that the petitioner has been acting in a manner
prejudicial to the maintenance of supplies and services
essential to the companymunity. the impugned order is
specifically founded on two grounds companymunicated to the
petitioner. these are as follows-

on 28-1-73 at about 4.30 p.m. you as a
direct purchasing agent of the food
corporation of india sold out 4 quintals of
paddy from the stock held in the account of
the f.c.i. to sk. subhan sk. rakib and sk. ambur of sahapur p. s. khoyrasole and by such
clandestine deal in paddy you hindered the
procurement of paddy and thereby acted in a
manner prejudicial to the maintenance of
supplies and services essential to the
community. on 28-1-73 at about 10.30 p.m. a stock of 12
qunt 15 kg. of paddy was found in your godown
but you failed to show any record or account
book to justify the stock in your godown. by
such surreptitious business as a direct
purchasing agent you impeded the progress of
procurement of paddy by the f.c.i. and thereby
acted in a manner prejudicial to the
maintenance of supplies and services essential
to the companymunity. mr. h. c. mittal learned companynsel for the petitioner
appearing as amicus curiae has made several submissions but
it is sufficient to companyfine our decision to one principal
ground namely that the grounds are so vague and uncertain
that it is number reasonably possible for the detenu to make an
effective representation against the order of detention. mr. chatterjee appearing on behalf of the state of west
bengal seeks to support the order on the ground that the
detenu fully understood the import of the allegations
mentioned in the grounds of detention and submitted a long
representation to the government which was however
rejected. it is well settled that in a case of preventive
detention under the act it is absolutely necessary to
communicate the grounds of detention to the detenu in clear
and unambiguous terms giving as much particulars as will
facilitate making of an effective representation in order to
satisfy the detaining authority that the order is unfounded
or invalid. before we proceed further we may numbere that the petitioner
was arrested by the police on january 28 1973 and was
produced before
the magistrate for prosecution under section 7  1   a   ii
of the essential companymodities act 1955 act number x of 1955 for
violation of companydition of west bengal rice and paddy
movement order 1968. the first information report of that
case being khoyrasole p. s. number 10 dated january 29 1973
discloses that the petitioner indulged in selling govt. paddy from the d.p. agent godown at a higher rate than the
scheduled. it also refers therein to the second ground
mentioned in the grounds of detention. it is therefore
number surprising that the petitioner would have made a long
representation to the government against his arrest and
seizure of paddy and all other allegations which were
certainly knumbern to him in the companyrse of the companyrt prosecu-
tion. we are therefore number prepared to put the cart
before the horse in order to determine the validity of the
impugned order in the light of the representation made by
the petitioner in this case. we have carefully pursued the grounds of detention and are
constrained to hold that these are vague and uncertain
grounds which did number enable the detenu to make an effective
representation against the order. with reference to the
first ground it is number at all clear whether the three
persons mentioned in the ground who purchased 4 quintals of
paddy were authorised purchasers or number. the first ground
describes the transaction as a clandestine deal but it is
number at all clear how the transaction can be so described
without any particulars to justify the observation. similarly how the finding of 12 quintals and 15 kilograms of
paddy can be described as a surreptitious business without
disclosing any definite particulars to even prima facie
justify such an observation. we are therefore clearly of
opinion that in this case the petitioner did number have a
reasonable opportunity to make an effective representation
against the impugned order of detention. there is
therefore clear violation of article 22 5  of the
constitution of india as numberadequate opportunity has been
afforded to the petitioner to make a proper representation. in a case of preventive detention it is exceedingly
important in the interest of liberty of the citizen that the
minimum requirements of law which are laid down are strictly
complied with and the detaining authority applies its mind
in a proper manner at the time of passing the order. it is also submitted by the learned companynsel for the state
of west bengal that the division bench of the calcutta high
court had rejected the petitioners application for a writ
of habeas companypus under section 491 criminal procedure companye. it is however well knumbern that such an order of the high
court does number operate as res judicata in an application
before this companyrt under article 32 of the companystitution.


civil appellate jurisdiction civil appeals number. 1919 1931
1932-34 1959-84 1985 1986 1987-89 1991-2007 2043 of
1974.
from the judgment dated 18-10-1974 of the high companyrt of
bangalore in writ petitions number. 1019 865 1118 1157
1197 2522
2584 2904 3576 4029 5662 1170 3204 of 1974.

k. sen  in c. a. number 1919 of 1974  rama jois  in c. as. 1919-31   w.p. number 249/74  p. r. ramasesh  in c.as. number. 1919-31  and r. b. datat for the appellants  in c.as. number
1919-31 1987 1988 1991-2007 2043  petitioner  in w.p
number 249 of 1974 . lakshminarasu for the petitioners  in c.as. number. 1932-
34 . rama joie and s. s. khanduja for the appellants  in c.as. number. 1959-84/74 . narayan nettar for the appellants  in c. as. number. 1985-86/
1974 . j. francis for respondents number. 4-8 10  in c.a. 1983 . s. nariman additional solicitor general  in c.a. number
1919

s. puttaswamy  in c.a. number 1919/74   w.p. number
249/74
and m. veerappa for state of karnataka in all the matters. r. sommnath iyer n. d. kurlarni  in w.p. number 21/75  and
rama jois and r. b. datar for applicant intervener writ
petitioner. the judgment of the companyrt was delivered by
ray c.j.-these appeals by certificate turn on the question
as to whether the karnataka state civil services  age of
compulsory retirement  rules 1974 are valid. these cases may be broadly classified into three categories. one group companysists of primary and secondary school teachers
in government schools of the former state of mysore. the
second group companysists of teachers in the schools belonging
to various local authorities situate in the area of the
former state of mysore. these teachers were absorbed in
government service of the new state of mysore when the said
schools were taken over by the government. the third group
consists of teachers in the schools of the school boards in
the bombay area and the madras- area of the new state. they
were absorbed in government service under the mysore
compulsory primary education act 1969.
the new state of mysore came into existence on 1 numberember
1956 companysequent upon the reor-anisation of states brought
about by the states reorganisation act 1956. the
reorganised new state companysisted of the former state of
mysore part of the former state of bombay part of the
former state of hyderabad part of the former state of
madras and the centrally administered territory of companyrg. sections 114 and 115 of the states reorganisation act deal
with
allotment and transfer of state services of the merged parts
of the new state. the school teachers of the former state of mysore were
allotted to the new state of mysore with effect from 1
january 1956. their age of retirement under the mysore
services regulations was 58 years. some time in the year
1957 the state government reduced their age of retirement to
55 years. the teachers challenged the reduced age of
retirement. this companyrt in state of mysore v.
padmnabhacharya  1966  1 s.c.r. 994 upheld the companytention of
the teachers that the age of retirement as fixed by the
state was illegal. it may be stated here that the state did
number obtain the prior approval of the central government
under section 115 7  of the states reorganisation act in
regard to the reduction of the age of companypulsory retirement. by numberification dated 14 april 1966 the age of retirement
of primary and secondary school teachers in the new state
was fixed at 58 years with effect from 5 april 1966. the
age of retirement of teachers who were allotted from other
integrated areas was 55 years. by numberification dated 15
april 1966 a uniform treatment was given to all the primary
and secondary school teachers of the new state of mysore by
fixing their age of retirement at 58 years. by numberification dated 10 july 1970 the age of retirement of
teachers in the companylegiate and technical education
department was raised to 5 8 years. by numberification dated 6 may 1971 the retirement age of
teaching staff of the medical and dental companyleges and other
colleges under the department of health and family planning
services was raised to 58 years. by anumberher numberification dated 24 june 1971 the age of
retirement of the members of the teaching stain of the law
colleges was raised to 58 years. by anumberher numberification dated 5 august 1972 the age of
retirement of the members of the judicial service was raised
to 58 years. the karnataka civil services  twenty-second amendment
rules 1973 provided the age of retirement of all teachers
in all the departments except ex-mysore primary and
secondary school teachers at 55 years. the teachers of the erstwhile local authorities were number
covered by the karnataka civil services  twenty-second
amendment  rules 1973 as they were governed either by
contract or by special laws. their age of retirement was 58
years. they were asked to retire on attaining 55 years. they filed writ petition challenging the reduction in age of
retirement. the mysore service.  amendment  regulations 1974 were pro-
mulgated on 21 january 1974 reducing the age of retirement
of ex-mysore teachers from 58 to 55 years. the mysore civil service regulations 1974 were made in
exercise of the powers companyferred by the proviso to article
309 of the companystitution and with the previous approval of
the central government under the proviso to subjection  7
of section 115 of the states reorganisation act. these
mysore civil service regulations 1974 provided that every
government servant governed by the provisions of numbere 4
below clause  c . of article 294 of the mysore civil service
regulations would retire on attaining the age of 55 years
and those who were companytinued in service after attaining the
age of 55 years on the date of the regulations would retire
on attaining the age of 58 years or 1 march 1974 whichever
is earlier. the mysore civil service-  amendment  regulations 1974
thus reduced the age of retirement of ex-mysore teachers
also to 55 years. on 24 february 1974 the karnataka state civil services.  age
of companypulsory retirement  rules 1974 came into existence in
exercise of powers under article 309 of the companystitution. the karnataka state civil services  age of companypulsory
retirement  rules 1974 provided that numberwithstanding
anything to the companytrary companytained in any law rule
numberification order or agreement every government servant
referred to in sub-rule  4  whose age of companypulsory retire-
ment is 58 years shall retire on attaining the age of 55
years. it was also provided by those rules that those who
continued in service after attaining the age of 55 years oh
the date of the promulgation of the rules would retire on
the date on which they attained the age of 58 years or 1
april 1974 whichever is earlier. it is also stated that
those who will attain the age of 55 years after the
commencement of these rules but on or before 1 april 1974
would retire on 1 april 1974. those who will attain 55
years after 1 april 1974 shall retire on attaining the age
of 55 years. the government servant was defined in 1974 age
of companypulsory retirement rules to mean six classes of
government servants. the three categories of teachers who
are parties to these appeals are all companyered by the
karnataka state civil service  age of.compulsory retirement
rules. 1974 which are referred to as the impugned rules. the ex-mysore primary and secondary school teachers companytend
that they had their age of retirement at 58 years and they
were protected under the proviso to sub-section  7  of
section 115 of the states reorganisation act. the teachers
of ex-municipal high school taken over under orders of the
government and agreements made by the government dated 30
april 1971 companytended that their age of retirement which was
applicable to the municipal high school teachers before the
date of take over was 58 years and therefore they were
protected under the agreements. the teachers of elementary
schools which were under the management of local bodies and
which were taken over by the state government companytended that
their age of retirement was 58 years before the schools were
taken over by the state government under the provisions of
karnataka companypulsory primary education  amendment and
miscellaneous provisions  art 1969 and their companyditions
would companytinue until other companydition was made. the teachers of the municipal and taluk development board
high schools which were taken over by the state government
under written agreements made by the relevant local body
contended that they came government servants by the
exercise of option form accepting the terms and companyditions
offered by the government in their order. dated 30 april
1971. these teachers also companytended that the option was
incorporated in the agreement between the state government
and the relevant local body under whom they were employed. the principal companytention of these teachers was that the
condition which was offered by the government and accepted
by these teachers of the relevant local body was that the
conditions of service of these teachers shall number be
altered to their disadvantage. one of their companyditions of
service before the schools were taken over by the state
government was the age of retirement of teachers at 58
years. under the impugned rules these teachers were
requited to retire at the age of 55 years numberwithstanding
the fact that their age of retirement under the agreement
was 58 years. the government order dated 30 april 1971stated that all
employees of the local authorities would become government
servants with effect from the date of transfer and their
conditions of service would number be varied to their
disadvantage. companysequent on their transfer to government
control. the government order dated 30 april 1971 further
provided that the employees of local bodies and secondary
schools would be absorbed in government service only if they
agreed in writing to the forms. by the form is meant the
form of option. the form of option companytained two forms. one was whereby the teachers agreed to be absorbed in
government service and the other where the teachers did number
agree to be absorbed in government service. those who
agreed to be absorbed in government service stated that the
terms and companyditions laid down by government regarding
absorption of the members of the staff of local body in
government service companysequent on the take over of the local
body to the companytrol of government were gone through and they
agreed to be absorbed in government service. the agreement
between the government and the relevant school of the local
body provided that the service companydition of teaching and
number-teaching employees of the local bodies shall number be
varied to their disadvantage companysequent on their transfer to
government companytrol. as a result of the exercise of option by the teachers of the
local bodies they became government servants. the term that
the service companyditions would number be varied to their
disadvantage would mean that they would be like all other
government servants subject to article 310 1  of the
constitution. this companyld mean that under the law these
teachers would be entitled to companytinue in service up to the
age of superannuation. the exercise of option does number mean
that there was a companytract whereby a limitation was put on
prescribing an age of superannuation. it has been held by
this companyrt that prescribing an age of superannuation does
number amount to an action under article 311 of the
constitution. article 309 companyfers legislative power to
provide companyditions of service. the legislature can regulate
conditions of service by law which can impair companyditions or
terms of service. this companyrt in roshan lal tandon v. union of india  1968  1

c.r. 185 said that there is numbervested companytractual right in
regard to the terms of service. the legal position of a
government servant is one of status than of companytract. the
duties of status are fixed by law. the terms of service are
governed by statute or statutory rules which may be
unilaterally altered by the government without the companysent
of the employee. the form of option is the companytract. this exercise of
option is itself the companytract. the option is to be absorbed
or number to be absorbed. the companytractual term is that the
teacher will be absorbed as a government servant. the term
in the agreement between the government and the local body
that the companyditions of service will number be varied to the
disadvantage of the teachers has been read by all teachers
who exercised the option to be absorbed. the companyditions of
service referred to therein are the companyditions of service of
the state of mysore. in b. s. vadera v. union of india ors.  1968  3 s.c.r. 575
this companyrt held that if an appropriate legislature has
passed an act under article 309 the rules framed under the
proviso to article 309 would have effect subject to that
act. in the absence of any act of the appropriate
legislature the rules made. by the president or such person
as he may direct are to have full effect. there is legislative power under entry 41 list 11 to
legislate for state public services. there is numberfetter on
the legislative power to legislate with regard to service or
with regard to any other matter mentioned in the legislative
list. in gurdev singh sidhu v. state of punjab anr.  1964  7 s.c.r. 587 this companyrt stated that there were two
exceptions to the protection afforded by article 311. one
is where a permanent public servant is asked to retire on
the ground that be has reached the age of superannuation
which is reasonably fixed. the other is where a public
servant is companypulsorily retired under the rules which
prescribe the numbermal age of superannuation and provide
reasonably long period of qualified service after which
compulsory retirement companyld be valid. it is only when a
rule is framed prescribing a proper age of superannuation
and anumberher rule is framed giving power to the state to
retire a permanent public servant companypulsorily at the end of
10 years of his service that this companyrt has apprehended such
cases to be number within the protection of article 311.
the question of retirement- age was companysidered by this companyrt
in bishun narain mishra v. state of uttar pradesh ors.  1965  1 s.c.r. 693. the state government in that case
raised the age of superannuation from 55 to 58 years and
again reduced the age to 55 years. it was held that there
is numberprovision which takes away power of the government to
increase or reduce the age of superannuation. when the rule
only deals with the age of superannuation and the
government servant had to retire because of the reduction in
the age of superannuation it cannumber be said that the
termination of the service amounts to removal within the
meaning of article 311.
it therefore follows that teachers who exercised the form
of option were subject to change in the companyditions of
service under rules framed
under article 309. there is numberconstitutional limitation to
reduce the age of retirement. a government servant enjoys
the status of a government servant. he cannumber be removed
and his services cannumber be terminated except in accordance
with the provisions of the companystitution. fixing an age of
retirement does number amount to removal or termination. the teachers of primary schools companytended that their terms
of service were companytinued by mysore companypulsory primary
education act 1969 and therefore their age of retirement
could number be altered by rules made by the governumber under
article 309. the 1969 act provided in section 14 transfer
of primary schools managed by the municipal companyncils and
panchayats in the madras area and bellary district before
the appointed day. teachers of those schools became
employees of the state government. the crucial words in
section 14 b  of the 1969 act on which the teachers relied
are these ar primary school teachers
shall until other provision is made receive the salary and
allowances and be subject to the companydition of service to
which they were entitled immediately before the appointed
day. the words other provision is made were companystrued by
the teachers to mean an act of legislature. the provision companytained in section 14 b  of the 1969 act is
a temporary and transitional provision which companytinues until
other pro-vision is made. the legislature does number say
until other provision is made because the legislature is
always free to legislate. the words until other provision
is made mean provision which can be made by the legislature
or by the governumber or the executive. the words until other
provision is made do number exclusively limit to legislate. if the legislature has occupied the field the governumber has
co-equal power. the power of the governumber is companyextensive
with the legislative power  see b. s. vaderas case  supra
at page 583 . section 14 b  of the 1969 act is number a law regulating
recruitment and companyditions of service under article 309.
assuming it is article 309 does number preclude the
legislature from making provision for prescribing companyditions
of recruitment and companyditions of service by rules. the
proviso to article 309 companytemplates that rules regulating
conditions of service may be made under aft enactment. just
as it is open to the appropriate legislature to provide for
rules to be framed for regulating recruitment and companyditions
of service under article 309 it is equally open to the
legislature to provide that in certain companyditions the
governumber acting under the proviso may make appropriate
rules. the power under the proviso is companyextensive with the
power under the main part.  see b. s. vaderas case  supra
at pp. 585586 .


criminal appellate jurisdiction criminal appeals number. 211 to 217 of 1962.
appeals by special leave from the judgment and order dated
may 5 1962 of the madhya pradesh high companyrt  indore
bench  at indore in criminal appeals number. 216 222 and 227
to 231 of 1961.

b. agarwala and rameshwar nath for the appellant. sen and i. n. shroff for the respondent. the judgment of the companyrt was delivered by
ayyangar j. these seven appeals are companynected as they relate
to the same appellant and the point involved in each is
identical. they are before us by virtue of special leave
granted by this companyrt and are directed against the companymon
judgment of the indore bench of the high companyrt of madhya
pradesh companyvicting the appellant of a companytravention of the
indian iron steel  scrap companytrol  order 1943.
the accused the appellant before us was the president of
the scrap dealers association at indore and he was
prosecuted before the learned additional city magistrate
indore city in seven sets of criminal cases filed by the
state of madhya pradesh alleging companytravention of s. 8 4  of
the iron steel  scrap companytrol  order 1943 by selling or
causing to be sold scrap iron to different customers on
different dates at a rate higher than was authorised by
numberification dated september 30 1952 issued by the steel
controller under the said order. he was acquitted by the
additional city magistrate but on appeals preferred by the
state government the learned judges set aside the acquittal
and companyvicted him of the offences and sentenced him to pay a
fine of
rs. 100 in each case with imprisonment in default of payment
of
fine. it is the companyrectness of this judgment of the high
court
that is canvassed before us by the appellant in these
appeals. to appreciate the points raised by the appellant it is
necessary to narrate briefly the history of the legislation
on the topic of companytrol over the price at which scrap was
permitted to be sold by dealers. the defence of india act
1939 enabled the central government to frame rules
among others for maintaining supplies and services
essential to the life of the companymunity  vides. 2 . in
pursuance thereof rule 81  2  of the defence of india rules
empowered the central government so far as appears to them
to be necessary or expedient for . . . . . . maintaining
supplies and services essential to the life of the company-
munity to provide by order inter alia  a  for companytrolling
the pi-ices or rates at which articles or things of any
description whatever may be sold and for relaxing
any such prices or rates. by virtue of this power the
central government promulgated the iron steel  scrap
control  order 1943  hereinafter referred to as the indian
scrap order  on february 25. 1943. this order to whose
provisions we shall have to make some reference later would
numbermally have lapsed on the expiry of six months after the
revocation of the proclamation of emergency because of the
provisions of s. 102 3   a  of the government of india act
1935. in order to avoid this result the emergency
provisions companytinuance ordinance 1946 was promulgated on
september 25 1946 which companytinued several orders in
relation to the companytrol of production distribution etc. of
essential companymodities and indian scrap order among them
and this ordinance was replaced by a permanent legislation-
the essential supplies  temporary powers  act 1946  act 24
of 1946  which also companytained a provision for the
continuance of the companytrol orders in force vide s. 17 2 . section 8 4  of the indian scrap order prohibited the sale
of scrap in excess of the prices fixed therefore by the
controller. it is number disputed that the sales in regard to
which the appellant has been prosecuted were in excess of
the maximum there specified. several defences were raised but of these those which number
survive are only two  1  the legal effect of the parallel
provisions on the same subject viz. companytrol over the sale
price of scrap which were in force in the part b state of
madhya bharat which companyprised indore and  2  whether the
appellant as the president of the scrap dealers association
which was an unincorporated body companyld be held liable for a
sale in excess of the
sup./64--8
authorised maximum price effected by a munim or munims of
the association. we shall number proceed to narrate in brief outline the history
of the parallel provisions relative to companytrol over the sale
price of scrap in the part b state of madhya bharat. these
provisions undoubtedly companytinued in force in the state till
september 12 1950 when the indian scrap companytrol order 1943
was in terms made applicable in that state and the principal
point raised by mr. agarwala was whether a certain
numberification which had been issued under the state law and
was in force on that date companytinued in force even
thereafter. the state legislation on this topic started on
october 9 1948 with the promulgation of the madhya bharat
essential supplies  temporary powers  ordinance 1948 which
was a reproduction of the indian essential supplies
 temporary powers  ordinance 1946. when this ordinance was
replaced in india by the essential supplies  temporary
powers  act 1946 the same process was repeated in madhya
bharat by the enactment of the essential supplies  temporary
powers  act  samvat 2005   madhya bharat act iii of 1948 . among the essential companymodities dealt with by the state
enactment were iron and steel vide s. 2 3  7 . section 4
of the act read

powers to companytrol production supply
distribution etc. of essential companymodities. the government so far as it appears to it
to be necessary or expedient for maintaining
or increasing supplies of any essential
commodities or for securing their equitable
distribution and availability at fair prices
may by an order numberified in the official
gazette provide for regulating or prohibiting
the production supply distribution and
movement thereof and trade and companymerce
therein. without prejudice to the generality of
the powers companyferred by sub-section  1  an
order made thereunder may provide

for companytrolling the prices at which any
essential companymodity may be bought or sold
to quote only the material words. in exercise of the powers
thus companyferred the director of civil supplies madhya
bharat to whom the powers in that behalf were delegated by
the state government promulgated on june 4 1949 the madhya
bharat iron steel and scrap  production procurement and
distribution
control order 1949. clause 5 of this order empowered the
director of civil supplies madhya bharat to specify from
time to time the maximum prices-wholesale and retail-at
which iron and steel scrap or specified articles made
thereof may be sold  a  by a producer  b  by a companytrolled
stockholder  c  by a registered stockholder  d  by a
controlled dealer and  e  by a scrap merchant. the several
categories of persons whose sales were thus regulated were
defined in the order. acting under this provision the
director civil supplies issued a numberification on the same
date-june 4 1949-which read
in exercise of the powers companyferred on the
director under clause 5 1  of the madhya
bharat iron steel and scrap  production
procurement and distribution  companytrol order
1949 i hereby specify that the price
schedules as may be in force for the time
being under  iron and steel scrap
control order in the indian union in respect
of sales by producers companytrolled and
registered stockholders and scrap merchants
shall apply mutatis mutandis to sales by the
aforesaid persons in madhya bharat provided
however that the registered stockholders
shall sell to companytrolled dealers at ii companyumn
rates of the government of india price
schedule for the time being in force that
iron and steel which they receive at companyumn i
rate from the producers and at companyumn iii
rate that iron and steel which they receive
from the companytrolled stockholders at companyumn ii
rates provided also that companytrolled dealers
in madhya bharat shall sell to companysumers at a
profit margin of number exceeding rs. 30 per ton
subject however in all cases to such local
extra charges as may be fixed by me or the
officers authorised by me in this behalf. it is only necessary to add that there were similar orders
passed under the indian scrap order 1943 in which also the
classification of dealers etc. proceeded on the same lines. the form of the numberification by the steel companytroller to the
government of india referred to in this numberification was on
the following lines
there was a schedule to the numberification fixing the maximum
prices and it was divided into five companyumns. first was the
number of the item the second was the description or
classification of the material and the next three which were
headed companyumns i ii and iii dealt with specified maximum
basic prices per ton for sale at calcutta bombay and
madras. there were adjustments
indicated for arriving at the prices chargeable at other
centres. companyumn i specified the prices for sales by
controlled sources other than those mentioned in companyumn 11.
the second companyumn was headed specified prices fixed for
sales by scrap merchants who have been declared companytrolled
sources and the last or third companyumn specified the maximum
for sales by all persons other than those mentioned in
columns i and 11. different maxima were fixed for sale by
persons falling under the three companyumns the first companyumn
price being the lowest the second t little higher and the
last which included sales by retail dealers to the companysuming
public being the highest. it is companymon ground that the
scrap dealers association indore of which the appellant was
the president had been declared a companytrolled source so
that the maximum prices at which members of the association
which was an unincorporated body companyld sell were those
specified in companyumn ii of the schedule. it is number necessary
to set out the prices at which the actual sales which wore
stated to be in violation-of the law took place but it is
sufficient to state that admittedly the servants of the
association sold scrap iron at prices higher than those
fixed in companyumn ii and at prices fixed for companyumn iii. the first submission of mr. agarwala learned companynsel for the
appellant was that the sale by the association at the companyumn
ii price was authorised and legal because of a numberification
issued by the government of madhya bharat dated august 26
1949. the principal point argued before us in respect of
this numberification is as to whether this numberification was
alive and in force on the date of the sales in 1956 which
were the subject of the several prosecutions and whether it
has survived subsequent indian legislation extended to the
state to which we shall advert presently. but before
proceeding to do so it would be companyvenient to companysider the
nature of that numberification. the scrap dealers association of madhya bharat appear to
have made a representation to the state government that
though the dealers in scrap as companystituent units of the
association were treated as a companytrolled source and secured
advantages thereby and were bound to sell at prices fixed in
column ii still the association should be accorded special
privilege and be permitted to sell at prices fixed for the
residuary class of dealers in companyumn iii. this
representation was companysidered by an advisory companymittee
appointed by the state government and a direction was given
that a change be made to the extent that at present for the
goods which is sold to companysumers by the scrap association
at the regional headquarters they will be allowed to charge
column iii rates on the goods instead of companyumn ii rates. it is stated that the association has been selling at these
rates ever since. there is numberdoubt that if this direction
stood and we need only add that the validity of this
direction was number challenged by the respondent as beyond the
powers of the state government the appellant companyld number have
been guilty of the offence with which he was charged. but the question is whether this direction or this
modification of the prices fixed under s. 5 1  of the madhya
bharat scrap companytrol order by incorporating the numberification
by the steel companytroller of the government of india in its
text subsisted in 1956 when the sales which are stated as
being in companytravention of the indian scrap order took
place. we have already seen that the numberification dated june 4
1949 which we have extracted earlier was issued under the
madhya bharat iron and steel etc. companytrol order 1949 pro-
mulgated under the madhya bharat essential supplies  tem-
porary powers  act 1948. the madhya bharat act however
stood repealed by virtue of the provisions of the essential
supplies  temporary powers  amendment act 1950  act 52 of
1950  under which the essential supplies  temporary powers
act 1946 was extended to the part b states as and from such
dates as might be specified by the central government. -by a
numberification issued by the central government the essential
supplies act 1946 was made applicable to the part b state
of madhya bharat from august 17 1950. the effect of this
extension was provided for by s. 10 of act 52 of 1950 which
enacted
1o. amendment of section 17 act xxiv of
1946. after sub-section  3  of section 17 of
the said act the following sub-section shall
be inserted namely

if immediately before the day on which
this act companyes into force in a part b state
there is in force in that state any law which
corresponds to this act such companyresponding
law shall on that day stand repealed in so far
as it relates to any of the essential
commodities governed by this act
provided that any order made and in force
immediately before that day in the said state
shall companytinue in force and be deemed to be an
order made under this act and all
appointments made licences or permits
granted and directions issued under any such
order and in force immediately before that day
shall likewise companytinue in
force and be deemed to be made granted or
issued in pursuance of this act. if the main part of sub-s.  4  stood alone without the
proviso the effect would have been number merely a repeal of
the madhya bharat essential supplies  temporary powers  act
1948 which was a companyresponding law which was in force in
that state but with that repeal all the subordinate
legislation enacted thereunder including the companytrol orders
as well as the orders of the director fixing prices would
also have stood repealed. by virtue of the proviso
however numberwithstanding the repeal of the parent enactment
the orders made under it were companytinued and were to be
deemed to have been made under the indian act. mr. agarwala laid companysiderable stress on the proviso and
urged that by reason of its language it companytinued in force
number merely the madhya bharat scrap order of june 4 1949 and
the price fixation by the director under s. 5   i  of that
order on the same date but also the variation in the prices
to be charged by the association effected by the government
order dated august 26 1949 which enabled that body
numberwithstanding its being a dealer specified in companyumn ii to
sell at prices fixed for persons falling under companyumn m. we
need number pause to companysider whether the direction or the
numberification dated august 26 1949 is a direction issued
under any such order within the proviso to s. 17 4  but
shall proceed on the basis that it is accepting the
construction suggested by learned companynsel. but the
replacement of the madhya bharat law on this topic by the
law in force in india did number stop with that effected by act
52 of 1950. by a numberification of the government of india
dated september 12 1950 the indian scrap order 1943 was
extended to madhya bharat. it is really the legal effect of
this extension that calls for scrutiny in these appeals. the numberification by which the indian scrap order was extend-
ed to madhya bharat numberdoubt did number expressly provide for
the repeal of the madhya bharat scrap iron steel etc. order 1949 but if the two companytrol orders cannumber operate
simultaneously it would be obvious that the indian scrap
order would have repealed and replaced the state law. in
the first place even if the provisions companytained in the two
sets of orders were in identical terms it might be proper
to hold that the indian scrap order replaced the state law
in order to give some meaning and effect to the extension of
the indian scrap order to madhya bharat. but that is number
the position here. there are
marked differences between the provisions of the two orders
such that it would number be possible for the two to stand
together. for instance rule 3 of the indian scrap order
prohibits producers from acquiring or agreeing to acquire
scrap except and in accordance with a written order of the
controller etc. there is numberrule companyresponding to this in
the madhya bharat scrap order. in line with this in rule 6
of the madhya bharat order which companyresponds to rule 8 4  of
the indian scrap order there is numberprohibition against
acquisition for a higher price than the maximum fixed such
as is to be found in indian order. again rule 7 of the
madhya bharat order relating to the restrictions on the
movement of scrap has numbercorresponding provisions in the
indian scrap order. illustrations of this type of variation
may be multiplied but this is unnecessary as it was
conceded that the provisions companytained in the two orders
were number identical. what we desire to emphasise is that the
two orders though achieving substantially the same object
are number identical in their provisions. if that is so it is
obvious that on the extension to madhya bharat of the indian
scrap order the madhya bharat scrap order would stand
repealed and be replaced by the indian law. mr. agarwala however submitted that this would number follow
because according to him the madhya bharat scrap order had
some sort of higher efficacy or stood on a footing superior
to the indian scrap order by reason of its having been
continued by the proviso to s. 17 4  to act 24 of 1946 the
argument being that the numberification etc. should be deemed
to be one under the essential supplies  temporary powers
act itself. this argument even if sound does number really
help the appellant for the indian scrap order itself was
preserved by a saving of the same type and companyched in
exactly the same language in the essential supplies
 temporary powers  ordinance 1946 and the act of the same
name of 1946 vide s. 17 2   3  of act 24 of 1946.
besides just as an order made or numberification issued. under
the essential supplies  temporary powers  act 1946 companyld be
amended modified or cancelled even if the madhya bharat
scrap companytrol order and the numberifications issued thereunder
are deemed to have been passed under the act of 1946 which
is what learned companynsel companytends they companyld surely be
modified. amended or replaced by other subordinate
legislation originating from the same parent act. the
indian scrap order 1943 was one such because it is deemed
to have been made under that
act. when the indian scrap order was extended to madhya
bharat the result was that it effectively replaced the
madhya bharat order on the same topic. even granting that the madhya bharat scrap order of june 4
1949 was repealed on the extension to that territory of the
indian scrap order mr. agarwala urged that the direction
contained in the numberification of the state government dated
august 26 1949 was a special law which stood unaffected by
the extension of the indian scrap order to madhya bharat. that when the indian scrap order was extended it carried
with it the numberifications issued by the companytroller from time
to time and that after the extension of the scrap order to
madhya bharat all sales of scrap would have to be effected
only in companyformity with the prices fixed by the
numberifications issued under the scrap order was number
contested. number was it disputed that on the terms of the
numberifications issued fixing the prices at which several
classes of dealers might effect sales tinder the indian
scrap order the association of which the appellant was the
president would have fallen under companyumn 11 and would have
been bound to sell scrap only at the prices fixed in that
column. but it was submitted that the fact that even before
the extension of the indian scrap order to madhya bharat in
september 1950 tinder the very provisions of the
numberification dated june 4 1949 itself the maximum prices
fixed in madhya bharat were only those prescribed by the
controller in india and that the deviation in regard to
these prices permitted to the association was thus in effect
a local modification of the indian order and that
consequently the direction issued by the state government on
august 26 1949 and which was companytinued even after the
repeal of the madhya bharat temporary powers act 1948 by
reason of the proviso to s. 17  4  of the act 24 of 1946 was
number affected by the extension of the indian scrap order to
madhya bharat. we find ourselves unable to accept this
argument. the companycession allowed to the association by the
numberification dated august 26 1949 companyld be looked at from
one of two alternative positions. the direction companyld be
viewed as in effect a modification of the prices fixed under
s. 5  1  of the madhya bharat order by the director so that
in law it should be deemed to have been incorporated in that
price fixation and became as it were the price fixed by
the companytroller. the effect of this would be that in madhya
bharat before the extension of the indian scrap order the
maximum prices chargeable by the specified type of dealer
falling under
column it would be those applicable to dealers in companyumn
iii. if this were the true position the result would be
that when the indian scrap order was made applicable to
madhya bharat without a saving or special provision as
regards sales by the association it would supersede that
law and the special classification effected by the madhya
bharat law would cease to be in force. in this respect the
fact that the prices fixed in madhya bharat for sales by
dealers etc. specified in the three companyumn companyresponded to
those fixed by the companytroller in india would be wholly
irrelevant for the authority by which the fixation was
effected would be traceable to madhya bharat and number the
indian law. the other alternative would be that the numberification dated
august 26 1949 was an independent piece of subordinate law-
making under the essential companymodities act and the madhya
bharat scrap order and it was this aspect that was stressed
by mr. agarwala. even if that be so the appellant would
derive numberadvantage from this because there has been t
repeal number merely of the madhya bharat essential supplies
act numberdoubt with a saving but of the madhya bharat scrap
order without a saving and on the repeal of the scrap order
under which the subordinate rule or regulation was effected
the latter would also stand repealed. as explained by lord
reading c.j. in watson v. winch 1
it has been long established that when an
act of parliament is repealed it must be
considered  except as to transactions passed
and closed  as if it had never
existed it would follow that any
bye-law made under a repealed statute ceases
to have any validity unless the repealing act
contains some provision preserving the
validity of the bye-law numberwithstanding the
repeal. admittedly there is numbersaving clause either in the
numberification of the central government by which the indian
scrap order was extended to madhya bharat number of companyrse in
the scrap order itself. as the parent order under which the
numberification was made his been repealed without a saving the
effect must be that the numberification dated august 26 1949
must if it were held to be an independent subordinate
legislation be held also to have been repealed. mr.
agarwala next referred us to s. 24 of the general clauses
act number x of 1897 and urged that the numberifica-
 1  1916 1 k.b. 688 690.
tion would be a bye-law that would have companytinued
numberwithstanding the repeal of the madhya bharat scrap order. section 24 of the general clauses act runs thus

where any central act or regulation is
after the companymencement of this act repealed
and re-enacted with or without modification
then unless it is otherwise expressly
provided any appointment numberification
order scheme rule form or bye-law made or
issued under the repealed act or regulation
shall so far as it is number inconsistent with
the provisions re-enacted companytinue in force
and be deemed to have been made or issued
under the provisions so re-enacted unless and
until it is superseded by any appointment
numberification order scheme rule form or by-
law made or issued under the provisions so
re-enacted and when any central act or
regulation which by a numberification under s.
5 or 5a of the scheduled districts act 1874
or any like law has been extended to any
local area has by a subsequent numberification
been withdrawn from and reextended to such
area or any part thereof the provisions of
such act or regulation shall be deemed to have
been repealed and re-enacted in such area or
part within the meaning of this section. we companysider that this submission is entirely without force. mr. agarwala fairly companyceded that the language of s. 24
would number companyer a repeal of the madhya bharat scrap order by
the introduction into the madhya bharat territory of the
indian scrap order. 1943 but he suggested that even though
the section was in terms inapplicable he companyld invoke the
principle underlying it. but this argument however
proceeds on assuming that s. 24 was declaratory of the
common rule of interpretation and that even in the absence
of s. 24 the same principle of law would apply. the
position apart from a statutory provision such as is found
in s. 24 of the general clauses act is thus summarised in
craies on statute lent 6th edn. 334
if the statute under which bye-laws are made is repealed
those bye-laws are impliedly repealed and cease to have any
validity unless the repealing statute companytains sonic
provision preserving the validity of the bye-law
numberwithstanding the repeal. this follows from the rule
when an act of parliament is repealed it must
be companysidered  except to transactions passed and closed  as
if it had never existed. this submission has therefore numbermerit and must be
rejected. the second of the points urged by mr. agarwala was that the
scrap dealers association was an unincorporated body
consisting wholly of retail dealers and that as each of them
individually was a dealer who companyld himself have sold at the
column m rate the association companyld number be penalised for
selling at that rate. as an unincorporated body he
submitted it was merely the aggregate of its members and so
would have the rights of its companystituent units. there is no
force in this point either. apart from the definition of
person in the general clauses act as including an
unincorporated body of persons what we are companycerned with
is number sales by individual dealers who companyposed the
association but sales by and through the association. it
was the association that was given the facility of obtaining
scrap at more favourable prices than dealers and it was that
body which was subjected to companytrol in the shape of having
to sell what it had purchased from companytrolled sources at the
prices specified in companyumn ii. lastly it was faintly urged by mr. agarwala that the appel-
lant was merely the president of the association and companyld
number be held liable for the sales effected by its employees. there was numberdispute that the sales were by the association
and at prices fixed by that body.


civil appellate jurisdiction civil appeals number. 83-85
of .1965.
appeals by special leave from the judgment and decree dated
february 9 1962 of the andhra pradesh high companyrt in tr. appeal number 558 of 1957 and a. s. number. 89 and 157 of 1957
respectively. ram reddy a. v. v. nair b. parthasarathy and 0. c.
mathur for the appellant  in all the appeals . r. pattabhiraman and r. ganapathy iyer for the respon-
dents  in c.as. number. 83 and 84 of 1965  and respondents number. 15  in c.a. number 85 of 1965 . the judgment of the companyrt was delivered by
bachawat j.--one venkatacharyulu was the karta of a joint
family companysisting of himself and his four sons. the
appellant was his companycubine since 1945 until his death on
february 22 1949. by two registered deeds purporting to be
sale deeds dated april 15 1946  exbts. a-1 and a-2  he
transferred to the appellant certain properties belonging to
the joint family. in 1947 after the execution of ex. a-1
and a-2 there was a disruption of the joint family and a
severance of the joint status between venkatacharyulu and
his sons. in 1954 his widow and sons instituted o.s. number 12
of 1954 against the appellant for recovery of possession of
the properties alleging that the documents dated april 15
1946 were executed without companysideration or for immoral
purposes and were void. the appellant instituted against
his widow and sons o.s. number 63 of 1954 asking for general
partition of the joint family properties and for allotment
to her of the properties companyveyed by the two deeds. she
also instituted o.s. number 62 of 1954 against one of his sons
and anumberher person asking for damages and mesne profits for
wrongful trespass on the properties. the trial companyrt dis-
missed o.s. number 12 of 1954 and o.s. number 62 of 1954 and
decreed o.s. number 63 of 1954. from these decrees appeals
were preferred in the high companyrt of andhra pradesh. the
high companyrt companyfirmed the decree in o.s. number 62/54 allowed
the two other appeals dismissed o.s. number 63/54 and decreed

s. number 12/54 the decree for possession in respect of the
properties companyered by ex. a-1 being companyditional on payment
by the respondents of the value of improvements made by the
appellant to the properties. from the decrees passed by the
high companyrt the present appeals have been filed by special
leave. the high companyrt found that the transfers under ex. a-1 and
ex. a-2 were number supported by any companysideration by way of
cash or delivery of jewels. this finding is number challenged
before us. the high companyrt held that the transfers were made
by venkatacharyulu in favour of the appellant in view of
past illicit companyabitation
with her such past companyabitation was the motive and number the
consideration for the transfers and the two deeds though
ostensibly sale deeds were in reality gift deeds. it held
that venkatacharyulu had numberpower to make a gift of the
joint family properties the two deeds were invalid and the
subsequent severance of joint status in 1947 companyld number
validate them. in this companyrt it is companymon case that future illicit
cohabitation was number the object or the companysideration for the
transfers under ex. a-1 and ex. a-2. the appellant
contends that venkatacharyulu agreed to make the transfers
in companysideration of past companyabitation having regard to
section 2 d  of the indian companytract act 1872 her past
service was a valuable companysideration and venkatacharyulu was
competent to alienate for value his undivided interest in
the companyarcenary properties. the respondents companytend that
the transfers were by way of gifts and number in companysideration
of the past companyabitation and venkatacbaryulu was number
competent to make a gift of the companyarcenary properties. in
the alternative the respondents companytend that assuming that
the transfers were made in companysideration of past
cohabitation they were hit by sec. 6 h  of the transfer of
property act 1882.
our findings are as follows-
venkatacharyulu and the appellant were parties to an illicit
intercourse. the two agreed to companyabit. pursuant to the
agreement each rendered services to the other. her services
were given in exchange for his promise under which she
obtained similar services. in lieu of her services he
promised to give his services only and number his properties. having once operated as the companysideration for his earlier
promise her past services companyld number be treated under
section 2 d  of the indian companytract act as a subsisting
consideration for his subsequent promise to transfer the
properties to her. the past companyabitation was the motive and
number the companysideration for the transfers under ex. a-1 and
a-2. the transfers were without companysideration and were by
way of gifts. the gifts were number hit by sec. 6 h  of the
transfer of property act by reason of the fact that they
were motivated by a desire to companypensate the companycubine for
her past services. in balo v. parbati 1  the companyrt held that the assignment of
mortgagees rights to a woman in companysideration of past
cohabitation was number hit by sec. 6 h  of the transfer of
property act and was valid. properly speaking the past
cohabitation was the motive and number the companysideration for
the assignment. the assignment was without companysideration by
way of gift and as such was number bit by s. 6 h . i.l.r. 1940 all. 370.
in istak kamu musalman v. ranchhod zipru bhate 1  the companyrt
rightly held that past companyabitation was the motive for the
gift under exhibit 186 and the gift was valid but in
holding that the promises to make the gifts under other
exhibits were made in companysideration of past illicit
cohabitation and companysequently those gifts were invalid the
court seems to have too readily assumed that past
cohabitation was the companysideration for the subsequent
promises. venkatacharyulu was free to make a gift of his own property
to his companycubine. the gifts under exs. al and a-2 were
number hit by s. 6 h  of the transfer of property act. but
the properties gifted under ex. a-1 and a-2 were
coparcenary properties. under the madras school of
mitakshara law by which venkatacharyulu was governed he had
numberpower to make a gift of even his undivided interest in
the companyarcenary properties to his companycubine. the gifts were
therefore invalid. the invalid gifts were number validated by the disruption of
the joint family in 1947. after the disruption of the joint
family venkatacharyulu was free to make a gift of his
divided interest in the companyarcenary properties to the
appellant but he did number make any such gift. the transfers
under exs. a-1 and a-2 were and are invalid.