PETITIONER: ROMESH THAPPAR Vs. RESPONDENT: THE STATE OF MADRAS DATE OF JUDGMENT: 26/05/1950 BENCH: FAZAL ALI, SAIYID BENCH: FAZAL ALI, SAIYID KANIA, <NAME>, <NAME>, <NAME>, <NAME>, B.K. CITATION: 1950 AIR 124 1950 SCR 594 CITATOR INFO : F 1950 SC 129 (26) R 1951 SC 270 (4) E 1951 SC 318 (25) D 1952 SC 75 (5,16) E 1952 SC 329 (3,4,5) R 1953 SC 252 (31) RF 1953 SC 384 (5) RF 1957 SC 620 (3,4,5,7) RF 1957 SC 628 (12,16,20,21) E&D 1957 SC 896 (14) RF 1958 SC 578 (129) F 1959 SC 395 (13,40) R 1959 SC 725 (8) R 1960 SC 633 (9,16) RF 1961 SC1457 (8) RF 1962 SC 171 (23) R 1962 SC 305 (29) R 1962 SC 955 (21) R 1962 SC1621 (78,108,110,132) R 1963 SC 996 (2,5) MV 1966 SC 740 (48,69) RF 1967 SC1110 (16) RF 1967 SC1643 (165,227) D 1969 SC 903 (23) D 1970 SC1923 (12,13) F 1971 SC2486 (8,13,14) R 1973 SC 106 (16) RF 1973 SC1461 (1705) RF 1974 SC1389 (247) RF 1977 SC 908 (23) R 1978 SC 597 (77) RF 1980 SC 494 (9) RF 1986 SC 515 (24,33,34) R 1986 SC 872 (74) RF 1989 SC 190 (11) ACT: Constitution of India, Art. 19 , cls. (1) (a) and (2), 32 Application under Art. 32-- Preliminary objection--Fundamen- tal right of freedom of speech and expression--Law imposing restrictions for securing public order and maintenance of public safety--Validity-Severability of Act--Madras Mainte- nance of Public Order Act (XXIII of 1949), s. 9 (1-A)--Validity. HEADNOTE: Held, by <ORG> (i) (overruling a preliminary objection) --Under the Constitution <ORG> is constituted the protector and guarantor of fundamental rights, and it cannot, consistently with the responsibility so laid upon it, refuse to entertain applications seeking protection against infringement of such rights, although such applications are made to the <ORG> in the first in- stance without resort to a High <ORG> having concurrent jurisdiction in the matter. <NAME> v. <NAME> (205 U.S. 179) and <NAME> v. <NAME> (294 U.S. 103) distinguished. (ii) Freedom of speech and expression includes freedom propagation of ideas and that freedom is ensured by the freedom of circulation. Ex parte <NAME> (96 U.S. 727) and <NAME> v. City of <NAME> (303 U.S. 444) referred to. Held per <NAME>, <NAME>, <NAME>, <NAME> and <NAME> <NAME> dissenting): (i) Apart from libel, slander etc. unless a law restricting freedom of speech and expression is directed solely against the undermining of the security of the <ORG> or the over- throw of it, such law cannot fall within the reservation under cl. (2) of art. 19 of the Constitution, although the restrictions which it seeks to impose may have been con- ceived generally in the interests of public order. Section 9 (1-A) of the Madras Maintenance of Public Order Act, XXXIII of 1949, which authorises impositions of restrictions for the wider purpose of securing public safety or the mainte- nance of public order falls outside the scope of authorised restrictions under cl. (2) and is therefore void and uncon- stitutional; (ii) Where a law purports to authorise the imposition of restrictions on a fundamental right in lan- guage wide enough to cover restrictions both within and without the limits of constitutionally permissible legisla- tive action affecting such right, it is not possible to uphold it even so far as it may be applied within the constitutional limits, as it is not severable. So long as the possibilitY of its being applied for purposes not sanc- tioned by the Constitution cannot be ruled out 595 must be held to be wholly unconstitutional and void. Section 9 (1-A) is therefore wholly unconstitutional and void. Per FAZL <NAME>--Restrictions which s. 9 (1-A) autho- rised are within the provisions of cl. (2) of art. 19 of the Constitution and s. 9 (1-A)is not therefore unconstitutional or void.(1) <CITATION>  S.C.R. 605 referred to. JUDGMENT:

ORIGINAL JURISDICTION: Petition No. XVI of 1950. Appli- cation under article 32 of the Constitution for a writ of prohibition and certiorari. The facts are set out in the judgment.

<NAME>, for the petitioner.

<NAME>, Advocate-General of <ORG>, (<NAME>, with him) for the opposite party.

1950. May 26. The Judgment of <NAME>, <NAME>, <NAME> and <NAME> was delivered by <NAME> <NAME> delivered a separate judgment. <NAME> petitioner is the printer, publisher and editor of a recently started weekly journal in English called <ORG> printed and published in Bombay. <ORG>, the respondents herein, in exer- cise of their powers under section 9 (1-A) of the Madras Maintenance of Public Order Act, 1949 (hereinafter referred to as the impugned Act) purported to issue an order No. MS. 1333 dated 1st March, 1950, whereby they imposed a ban upon the entry and circulation of the journal in that State. The order was published in <ORG> and the notification ran as follows :--

"In exercise of the powers conferred by section 9 (I-A) of the Madras Maintenance of Public Order, Act, 1949 (Madras Act XXIII of 1949) His Excellency the Governor of Madras, being satisfied that for the purpose of securing the public safety and the maintenance of public order, it is necessary so to do, hereby prohibits, with effect on and from the date of publication of this order in <ORG> the entry into or the circulation, sale or distribution in the State of Madras or any part thereof of the newspaper entitled <ORG> an English weekly published at Bombay."

The petitioner claims that the said order contravenes the fundamental right of the petitioner to freedom of See the headnote to <CITATION> , p. 605 infra.

speech and expression conferred on him by article 19 (1) (a) of the Constitution and he challenges the validity of section 9 (1-A) of the impugned Act as being void under article 13 (1) of the Constitution by reason of its being inconsistent with his fundamental right aforesaid. The Advocate-General of Madras appearing on be half of the respondents raised a preliminary objection, not indeed to the jurisdiction of this <ORG> to entertain the application under article 32 , but to the petitioner resort- ing to this <ORG> directly for such relief in the first instance. He contended that, as a matter of orderly proce- dure, the petitioner should first resort to <ORG> at Madras which under article 226 of the Constitution has concurrent jurisdiction to deal with the matter. He cited criminal revision petitions under section 435 of the Crimi- nal Procedure Code , applications for bail and applications for transfer under section 24 of the Civil Procedure Code as instances where, concurrent jurisdiction having been given in certain matters to <ORG> and the <ORG> of a lower grade, a rule of practice has been established that a party should proceed first to the latter <ORG> for relief before resorting to <ORG>. He referred to <NAME> v. <NAME> (1) where such a rule of practice was enforced in a criminal revision case, and called our attention also to certain American decisions <NAME> v. <NAME> (2) and <NAME> v. <NAME> (3) as showing that <ORG> of the United <ORG>s ordinarily required that whatever judicial remedies remained open to the appli- cant in <ORG> and <ORG> <ORG>s should be exhausted before the remedy in <ORG>---be it habeas corpus or certiorari-- would be allowed. We are of opinion that neither the instances mentioned by the learned Advocate General nor the American decisions referred to by him are really analogous to the remedy afforded by article 32 of the Indian Constitution. That article does not merely confer power on this <ORG>, as article 226 does on the (1) I.L.R. 56 All. 158. (2) 205 U. S. 179 . (3) 294 U.S. 103.

<ORG>, to issue certain writs for the enforcement of the rights conferred by Part III or for any other purpose, as part of its general jurisdiction. In that case it would have been more appropriately placed among articles 131 to 139 which define that jurisdiction. Article 32 provides a "guaranteed" remedy for the enforcement of those rights, and this remedial right is itself made a fundamental right by being included in Part 1II. This <ORG> is thus constituted the protector and guarantor of fundamental rights, and it cannot, consistently with the responsibility so laid upon it, refuse to entertain applications seeking protection against infringements of such rights. No similar provision is to be found in the Constitution of the United <ORG>s and we do not consider that the American decisions are in point. Turning now to the merits, there can be no doubt that freedom of speech and expression includes freedom of propa- gation of ideas, and that freedom is ensured by the freedom of circulation. "Liberty of circulation is as essential to that freedom as the liberty of publication. Indeed, without circulation the publication would be of little value ": Ex parte Jackson(1). See also <NAME> v. City of Griffin(s). It is therefore perfectly clear that the order of the Gov- ernment of Madras would be a violation of the petitioner's fundamental right under article 19 (1) (a ), unless section 9 (1-A) of the impugned Act under which it was made is saved by the reservations mentioned in clause (2) of article 19 which (omitting immaterial words regarding laws relating to libel, slander, etc., with which we are not concerned in this case) saves the operation of any "existinglaw in so far as it relates to any matter which undermines the security of, or tends to overthrow, the <ORG>." The question accord- ingly arises whether, the impugned Act, in so far as it purports by section 9 (1-A) to authorise <ORG> "for the purpose of securing the public safety or the maintenance of public order, to prohibit or regulate the entry into (1) 96 U.S. 727. (2) 303 U.S, 444.

or the circulation, sale or distribution in the Province of Madras or any part thereof of any document or class of documents" is a "law relating to any matter which undermines the security of or tends to overthrow the <ORG>."

The impugned Act was passed by <ORG> in exercise of the power conferred upon it by section 100 of the Government of India Act 1935, read with Entry 1 of List II of the Seventh Schedule to that Act, which com- prises among other matters, "public order." Now "public order" is an expression of wide connotation and signifies that state of tranquillity which prevails among the members of a political society as a result of the internal regula- tions enforced by the government which they have estab- lished. Although section 9 (I-A) refers to "securing the public safety" and "the maintenance of public order" as distinct purposes, it must be taken that "public safety" is used as a part of the wider concept of public order, for, if public safety were intended to signify any 'matter distinct from and outside the content of the expression "public order," it would not have been competent for <ORG> to enact the provision so far as it relates to public safety. This indeed was not disputed on behalf of the respondents. But it was urged that the expression "public safety" in the impugned Act, which is a statute relating to law and order, means the security of the Province, and, therefore,' 'the security of the <ORG>" with the meaning of article 19 (2) as "the <ORG>" has been defined in article 12 as including, among other things, the Government and the <ORG> of each of the erstwhile Provinces. Much reli- ance was placed in support of this view on Rex v. Wormwood Scrubbs Prison(1) where it was held that the phrase "for securing the public safety and the' defence of. the realm" in section 1 of the Defence of the Realm (Consolidation) Act, 1914, was not limited to securing the country against a foreign foe but included also protection against internal disorder such as a rebellion. The decision is not of much assistance to the respondents as the context in (1) L.R.  2 K.B. 805.

which the words "public safety" occurred in that Act showed unmistakably that the security of the <ORG> was the aim in view. Our attention has not been drawn to any definition of the expression "public safety," nor does it appear that the words have acquired any technical signification as words of art.

"Public safety" ordinarily means security of the public or their freedom from danger. In that sense, anything which tends to prevent dangers to public health may also be regarded as securing public safety. The meaning of the expression must, however, vary according to the context. In the classification of offenCes in the Indian Penal Code , for instance, Chapter XIV enumerates the "offences affecting the public health, safety, convenience, decency, and morals" and it includes rash driving or riding on a public way ( section 279 ) and rash navigation of a vessel ( section 280 ), among others, as offences against public safety, while Chapter VI lists waging war against the Queen ( section 121 ), sedition ( section 124-A ) etc. as "offences against the <ORG>", because they are calculated to undermine or affect the security of the <ORG>, and Chapter VIII defines "of- fences against the public tranquillity" which include unlaw- ful assembly ( section 141 ) rioting ( section 146 ), promot- ing enmity between classes ( section 153-A ), affray (sec- tion 159) etc. Although in the context of a statute relat- ing to law and order "securing public safety" may not in- clude the securing of public health, it may well mean secur- ing the public against rash driving on a public way and the like, and not necessarily the security of the <ORG>. It was said that an enactment which provided for drastic remedies like preventive detention and ban on newspapers must be taken to relate to matters affecting the security of the <ORG> rather than trivial offences like rash driving, or an affray. But whatever ends the impugned Act may have been intended to subserve, and whatever aims its framers may have had in view, its application and scope cannot, in the ab- sence of limiting words in the statute itself, be restricted to those aggravated forms of prejudicial activity which are calculated to endanger the security of the <ORG>. Nor is there any guar- antee that those authorised to exercise the powers under the Act will in using them discriminate between those who act prejudicially to the security of the <ORG> and those who do not.

The Government of India Act, 1935, nowhere used the expression" security of the <ORG>" though it made provision under section 57 for dealing with crimes of violence intend- ed to overthrow the Government. While the administration of law and order including the maintenance of public order was placed in charge of a Minister elected by the people, the Governor was entrusted with the responsibility of combating the operations of persons who "endangered the peace or tranquillity of the Province" by committing or attempting to commit "crimes of violence intended to overthrow the Govern- ment." Similarly, article 352 of the Constitution empowers the President to make a Proclamation of Emergency when he is satisfied that the "security of India or any part of the territory thereof is threatened by war or by external ag- gression or by internal disturbance." These provisions recognise that disturbance of public peace or tranquillity may assume such grave proportions as to threaten the securi- ty of the <ORG>.

As <NAME> in his 'Criminal Law of England(1) observes:'' Unlawful assemblies, riots, insurrections, rebellions, levying of war, are offences which run into each other and are not capable of being marked off by perfectly defined boundaries. All of them have in common one feature, namely, that the normal tranquillity of a civilised society is in each of the cases mentioned disturbed either by actual force or at least by the show and threat of it." Though all these offences thus involve disturbances of public tranquil- lity and are in theory offences against public order, the difference between them being only a difference' of degree, yet for the purpose of grading the punishment to be inflict- ed in respect of them they may be classified into different minor categories as has been done by (1) Vol. II, p. 242.

the Indian Penal Code . Similarly, the Constitution, in formulating the varying criteria for permissible legislation imposing restrictions on the fundamental rights enumerated in article 19 (1 ), has placed in a distinct category those offences against public order which aim at undermining the security of the <ORG> or overthrowing it, and made their prevention the sole justification for legislative abridge- ment of freedom of speech and expression, that is to say, nothing less than endangering the foundations of the <ORG> or threatening its overthrow could justify curtailment of the rights to freedom of speech and expression, while the right of peaceable assembly "sub-clause (b)" and the right of association "sub-clause (c)" may be restricted under clauses (3) and (4) of article 19 in the interests of" public order," which in those clauses includes the security of the <ORG>. The differentiation is also noticeable in Entry 3 of List III (Concurrent List) of the Seventh Sched- ule, which refers to the "security of a <ORG>" and "mainte- nance of public order" as distinct subjects of.legislation. The Constitution thus requires a line to be drawn in the field of public order or tranquillity marking off, may be, roughly, the boundary between those serious and aggravated forms of public disorder which are calculated to endanger the security of the <ORG> and the relatively minor breaches of the peace of a purely local significance, treating for this purpose differences in degree as if they were differ- ences in kind.

It is also worthy of note that the word "sedition" which occurred in article 13 (2) of the Draft Constitution pre- pared by <ORG> was deleted before the article was finally. passed as article 19 (2). In this connection it may be recalled that <ORG> had, in defining sedition in <NAME> v. <NAME> (1), held that "the acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that that is their intention or tendency", but <ORG> overruled that  F.C.R. 38.

decision and emphatically reaffirmed the view expressed in <NAME>'s case (1) to the effect that "the offence "consisted in exciting or attempting to excite in others certain bad feelings towards the Government and not in exciting or attempting to excite mutiny or rebellion, or any sort of actual disturbance, great or small "-King Emperor v. Sada- shiv <NAME> (2) Deletion of the word "sedition" from the draft article 13 (2 ), therefore, shows that criticism of Government exciting disaffection or bad feel- ings towards it is not to be regarded as a justifying ground for restricting the freedom of expression and of the press, unless it is such as to undermine the security of or tend to overthrow the <ORG>. It is also significant that the corre- sponding Irish formula of "undermining the public order or the authority of the <ORG>" article 40 (6) (i) of the Constitution of Eire,  did not apparently find favour with the framers of the Indian Constitution. Thus, very narrow and stringent limits have been set to permissible legislative abridgement of the right of free speech and expression, and this was doubtless due to the realisation that freedom of speech and of the press lay at the founda- tion of all democratic organisations, for without free political discussion no public education, so essential for the proper functioning of the processes of popular govern- ment, is possible. A freedom of such amplitude might involve risks of abuse. But the framers of the Constitution may well have reflected, with <NAME> who was "the leading spirit in the preparation of the First Amendment of the Federal Constitution," that "it is better to leave a few of its noxious branches to their luxuriant growth, than, by pruning them away, to injure the vigour of those yielding the proper fruits.": [Quoted in <NAME> v. <NAME> (3)]. We are therefore of opinion 'that unless a law restrict- ing freedom of speech and expression is directed solely against the undermining of the security of the <ORG> or the overthrow of it, such law cannot fall within the reservation under clause (2) of article 19 , although the (1) 22 Bom. 112. (21 L.R. 74, I A. 89. (8) 282U.S, 607, 717-8.

restrictions which it seeks to impose may have been con- ceived generally in the interests of public order. It fol- lows that section 9 (1-A) which authorises imposition of restrictions for the wider purpose of securing public safety or the maintenance of public order falls outside the scope of authorised restrictions under clause (2), and is there- fore void and unconstitutional.

It was, however, argued that section 9 (1-A) could not be considered wholly void, as, under article 13 (1 ), an existing law inconsistent with a fundamental right is void only to the extent of the inconsistency and no more. In so far as the securing of the public safety or the maintenance of public order would include the' security of the <ORG>, the impugned provision, as applied to the latter purpose, was covered by clause (2) of article 19 and must, it was said, be held to be valid. We are unable to accede to this contention. Where a law purports to authorise the imposi- tion of restrictions on a fundamental right in language wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting such right, it is not possible to uphold it even so far as it may be applied within the constitutional lim- its, as it is not severable. So long as the possibility of its being applied for purposes not sanctioned by the Consti- tution cannot be ruled out, it must be held to be wholly unconstitutional and void. In other words, clause (2) of article 19 having allowed the imposition of restrictions on the freedom of speech and expression only in cases where danger to the <ORG> is involved, an enactment, which is capable of being applied to cases where no such danger could arise, cannot be held to be constitutional and valid to any extent.

The application is therefore allowed and the order of the respondents prohibiting the entry and circulation of the petitioner's journal in the State of Madras is hereby quashed.

<NAME> the reasons given by me in <CITATION> (1) , which practically

605. involves the same question as is involved in this case, I hold that the reliefs sought by the petitioner cannot be granted. In this view, I would dismiss this petition, but I should like to add a few observations to supplement what I have said in the other case.

It appears to me that in the ultimate analysis the real question to be decided in this case is whether "disorders involving menace to the peace and tranquillity of the Prov- ince" and affecting "public safety" will be a matter which undermines the security of the <ORG> or not. I have bor- rowed the words quoted within inverted commas from the preamble of the Act which shows its scope and necessity and the question raised before us attacking the, validity of the Act must be formulated in the manner I have suggested. If the answer to the question is in the affirmative, as I think it must be, then the impugned law which prohibits entry into the <ORG> of Madras of "any document or class of documents" for securing public safety and maintenance of public order should satisfy the requirements laid down in article 19 (2) of the Constitution. From the trend of the arguments addressed to us, it would appear that if a docu- ment is seditious, its entry could be validly prohibited, because sedition is a matter which undermines the security of the <ORG>; but if, on the other hand, the document is calculated to disturb public tranquillity and affect public safety, its entry cannot be prohibited, because public disorder and disturbance of public tranquillity are not matters which undermine the security of the <ORG>. Speaking for myself, I cannot understand this argument. <CITATION> (1), I have quoted good authority to show that sedition owes its gravity to its tendency to create disorders and an authority on criminal law like Sir <NAME> has classed sedition as an of- fence against public tranquillity. If so, how could sedi- tion be a matter which would undermine the security of the <ORG> and public disorders and disturbance of public safety will not be such a matter? It was argued that a small riot or an affray will not (1)  S.C R, 605.

undermine the security of the <ORG>, but to this line of argument there is a two-fold answer :--

(1) The Act, as its preamble shows, is not intended for petty disorders but for disorders involving menace to the peace and tranquillity of the Province, (2) There are de- grees of gravity in the offence of sedition also and an isolated piece of writing of mildly seditious character by one insignificant individual may not also, from the layman's point of view, be a matter which undermines the security of the <ORG>, but that would not affect the law which aims at checking sedition. It was also said that the law as it stands may be misused by the <ORG> executive, but misuse of the law is one thing and its being unconstitutional is another. We are here concerned with the latter aspect only. I shall not pursue the matter further as I have said enough on the subject in the connected case.

Petition allowed.

Agent for the petitioner:--K. J. Kale.

Agent for the opposite party :--P. A. Mehta.


JUDGMENT <NAME>, J.

1. The following question has been referred to this court under Section 64(1) of the Estate Duty Act, 1953 :

"Whether, on the facts and in the circumstances of the case, <ORG> was right in holding that the amount of Rs. 3 lakhs transferred by the deceased to his grand-nephews was includible in the estate of the deceased that passed on his death ?"

2. The deceased, <NAME>, was a partner in the firm of M/s. <NAME>, which was carrying on business as bankers. On October 4, 1952, he transferred a sum of Rs. 1 lakh each to the three minor grandsons of his deceased brother. The procedure adopted for the transfer was as follows: The deceased drew a cheque for Rs. 3 lakhs against his account with M/s. <NAME>. The cheque was in favour of M/s. <NAME>. The account of the deceased with the said firm was debited with the sum of Rs, 3 lakhs' and on the same day simultaneously the three accounts with the said firm of the minor donees were credited with a sum of Rs. 1 lakh each. The Tribunal had presumed that the transfer was effected in the name of the minor donees as a result of the oral instructions given by the deceased to the firm.

3. The sum of Rs. 3 lakhs thus transferred to the grandsons continued to stand in their names in the accounts of M/s. Dayaram Surajmal till the date of dissolution of the firm on July 4, 1960. Thereafter, some of the assets were allotted to the grandsons in lieu of the amounts standing to their credit.

4. <NAME> died on December 21, 1956. His widow, as the accountable person, filed an account of the deceased's estate declaring , the value thereof at Rs. 2,60,702. This did not include the amount of Rs. 3 lakhs transferred by the deceased to the three minors on October 4, 1952. The Deputy Controller of Estate Duty held that, since the transaction was a transfer of an actionable claim, the. transfer could be effected only under an instrument in writing signed by the transferor as contemplated under Section 130 of the Transfer of Property Act and that since there was no such instrument in writing the transfer was ineffective or invalid as a transfer of an actionable claim. He, therefore, included the amount of Rs. 3 lakhs in the value of the estate of the deceased that passed on his death, In the appeal preferred by the accountable person, the Appellate Controller of Estate Duty held that there was no effective transfer of the actionable claim as contemplated under Section 130 of the Transfer of Property Act and that in any case the amount is includible in the estate of the deceased under Section 10 of the Estate Duty Act. The accountable person preferred a further appeal to <ORG> which held that the cheque issued by the deceased in favour of the firm only authorised the firm to pay to itself the sum of Rs. 3 lakhs from out of the amounts standing to the credit of the deceased in its account, but it did not itself authorise the transfer of the amount to anybody else, that such a transfer could be authorised by a separate letter of instructions by the deceased, but such an instrument in writing not being present, oral instructions could not take the place of such an instrument in writing and that, therefore, the transfer of Rs. 3 lakhs in favour of the minor donees was not in accordance with the provisions of Section 130 of the Transfer of Property Act. The <ORG> also held that the said sum of Rs. 3 lakhs was includible in the estate of the deceased under Section 10 of the Estate Duty Act even if it were to be assumed that the transfer became complete and effective on the date of the transfer. On an application by the accountable person, the above question has been referred under Section 64(1) of the Estate Duty Act.

5. Though the accountable person was all along urging before the estate duty authorities and the <ORG> that there" was a valid gift of ah actionable claim, the learned counsel for the accountable person argued in this reference that the transaction amounted to a mere gift of money and it did not involve any transfer of an actionable claim. He contended that a partner is not a creditor of the firm in which he is a partner in respect of the amount standing to his credit and there is no jural relationship of a creditor and debtor between the partner and the firm. In support of his contention the learned counsel relied strongly on the decision in <CITATION> ,  64 I.T.R. 373 (Ker.).

6. Section 3 of the Transfer of Property Act defines an "actionable claim" to mean a claim to any debt, which the civil courts recognise as affording the grounds for relief, whether such debt be existent, accruing, conditional or contingent. Therefore, the question is whether, in respect of the amount standing to the credit of a partner, he has any claim to recover the money which the civil courts recognise as affording the ground for relief. <CITATION> , the donor, who was a partner in a partnership firm consisting of himself and his three sons, gifted to his three sons a total sum of Rs. 2,25,000 by debiting his account with the partnership and crediting the accounts of his three sons in the same partnership. It was held in that case on those facts that there was no transfer of an actionable claim. Relying on certain passages of Lindley on Partnership, the learned judges observed that:

"A partner, however, is not a debtor to or creditor of his firm in any legal sense of that term."

7. In support of their view, in particular, they relied on the following passage in Lindley on Partnership :

"Accountants are quite right in debiting each partner in his account with the firm with the whole of whatever he draws out, and in crediting him with the whole of whatever he brings in. 'But', as observed by Lord <NAME>, 'though these terms "debtor" and "creditor" are so used, and sufficiently explain what is meant by the use of them, nothing can be more inconsistent with the known law of partnership, than to consider the situation of either party as in any degree resembling" the situation of those whose appellation has been so borrowed. The supposed creditor has no means of obtaining payment of his debt; and the supposed debtor is liable to no proceedings either at law or in equity--assuming always that no separate security has been taken or given. The supposed creditor's debt is due from the firm of which he is a partner; and the supposed debtor owes the money to himself in common with his partners'." (12th edition, page 427).

8. But, we are afraid that this is not the full statement of the law. Section 13(d) of the Partnership Act specifically provides that, subject to contract between the partners, a partner making for the purpose of the business any payment or advance beyond the amount of capital he has agreed to subscribe is entitled to interest thereon at the rate of six per cent, per annum. Section 48 , dealing with the mode of settlement of accounts between the partners, states that the assets of the firm shall be applied in paying to each partner rateably what is due to him from the firm for advance as distinct from capital, before the distribution of the assets among themselves. Section 69(1) , by providing that no suit to enforce a right arising from a contract shall be instituted in any court by a partner in a firm against the firm, unless the firm is registered, suggests that if the firm is registered, a suit by a partner against the firm would be maintainable. Order 30, Rule 9, of the Code of Civil Procedure provides that a suit between a firm and one of its members may be instituted and Order 30 shall apply to such suits. All these provisions, in our opinion, suggest that, though, in law the firm as such has no legal entity, a partner would be entitled to claim repayment of the money advanced by him to the firm and such a claim could also be enforced in a court of law.

9. In <NAME> v. <NAME>, [1908] I.L.R. 32 Mad. 76, 80; in a suit by one of the partners against the other partner for recovery of a sum of money, <ORG> of this court held as follows :

"It may be taken generally that if the account sought is in respect of a matter which though arising out of the partnership business or connected with it, does not involve the taking of general accounts the court will as a rule give the relief asked for, and will now-a-days refuse to interfere only in those cases in which a partial account would work injustice to the other partner."

10. Thus, unless great injustice will be caused to the defendant-partner, courts will not refuse to recognise a claim for payment of the amount advanced by a partner to the firm. Even if no partial accounting could be ordered, the creditor-partner could file a suit for dissolution and general accounting and claim to be paid before the division of the assets as provided under Section 48 of the Partnership Act. Thus, in either case, a partner has a right of action. The passage from <ORG> extracted in <CITATION> , is only a historical general statement of the law. In another place in <ORG> (12th edition, page 306), we find the following passage :

"Again, there appears to be no reason why an action should not now be maintained for the recovery of a debt due from one partner to the firm ; nor why, if two firms have a common partner, an action should not be maintained by one firm against the other."

11. Therefore, it is not fully correct to state that the partner has no means of obtaining the payment of his debt. He is entitled to file a suit for recovery of the amount due to him from the firm, but, whether the court will grant a decree for the amount or require the partner to pray for a dissolution or general account will depend on the fact whether the claim could properly be adjusted without taking a general account.

12. <CITATION> ,  60 I.T.R. 690, 696 (Mad.) this court held that a partner has a right to be treated as a creditor of the firm in respect of his advance in view of Sections 13(d) and 48 of the Partnership Act. Though the learned judges have observed, "While it may well be that in respect of such advances made to a firm, a partner may have no separate right of suit except to have his claim in that regard settled as part of the winding-up or dissolution, his right to be treated as a creditor of the firm is not denied", it was not necessary for them to consider in that case the question whether the partner had a right of suit against the firm. Further, the decision in <NAME> v. <NAME> had not been cited to them.

13. We are, therefore, of opinion that the transaction involved in this case is a transfer of an actionable claim. Our view also finds support in the decision of <ORG> in <CITATION> ,  64 I.T.R. 522, 527 (A P ) wherein, after setting out" the provisions of the Partnership Act , the learned judges stated :

"Thus, the Act recognises a partner advancing moneys to the firm and being entitled to interest at 6 per cent. per annum. We do not consider it necessary to elaborate the point any further. It is sufficient to state that we cannot accept the view of the <ORG> that in no event can a partner who advances money to a firm of which he is a partner occupy the position of a creditor or be said to carry on the business of money-lending."

14. This now takes us to the next question as to whether there was a valid transfer of an actionable claim. Section 130 of the Transfer of Property Act requires that the transfer of an actionable claim, whether with or without consideration, shall be effected only by the execution of an instrument in writing signed by the transferor or his duly authorised agent and shall be complete and effectual upon execution of such an instrument. The learned counsel for the accountable person, relying on the decisions in <CITATION> ,  34 I.T.R. 259 (Bom.) <CITATION> ,  36 I.T.R. 72 (Bom.), <CITATION> ,  50 I.T.R. 396 (Mad.), <CITATION> ,  56 I.T.R. 556 (Mad.) and <CITATION> ,  77 I.T.R. 494 (Mad.) contended that there was a valid transfer of the actionable claim. In all these cases the question for consideration was whether the entries in the account books evidenced a gift of money. In none of these cases it was argued or considered whether the transfer- was a transfer of money or an actionable claim and whether as an actionable claim the transfer was complete and valid. On the other hand, the learned counsel for the revenue contended, relying on the decision in <CITATION> ,  59 I.T.R. 278 (Bom.) that mere entries in the account books were not sufficient to constitute a valid gift of an actionable claim nor would it amount to a valid assignment of the actionable claim. But, we are of opinion that the interposition of a cheque distinguishes the present case from all other cases.

15. As already noticed, the transfer was effected in this case by issuing a cheque in favour of the firm and the firm debited the account of the deceased and credited the accounts of the minors. When the cheque was issued, oral instruction also should have been given to fhe firm and it is only with reference to this oral instruction the accounts of the minors should have been credited with the amount. Therefore, in effect, the cheque was issued in favour of the firm but for the benefit of the minors. In such a situation, the firm shall be treated as a trustee or an agent holding the money, for the benefit of the minors. Since that transfer was by cheque, by virtue of Section 137 of the Transfer of Property Act, the provisions of Section 130 of that Act was not applicable. We are, therefore, of opinion that there was a valid gift of an actionable claim of the value of Rs. 3 lakhs by the deceased in favour of the three minors.

16. The next point for consideration is whether Section 10 of the Estate Duty Act is applicable to the facts and circumstances of this case. As already stated, the amount did not go out of the firm but was transferred from the account of the deceased to the account of the minor donees. The partnership was in possession of the amount for a long time after the death of the donor till the firm was dissolved. In those circumstances, the question for consideration is whether the bona fide possession and enjoyment of the property which was the subject-matter of the gift was assumed by the donee and retained thereafter to the entire exclusion of the donor.

17. The scope of Section 10 of the Estate Duty. Act has come up for consideration in a number of decisions. In <NAME> v. Commissioner of Stamp Duties, New South Wales,  A.C. 495,  37 I.T.R. (E.D.) 89; 3 E.D.C. 915 (P.C.). their Lordships of <ORG>, while considering a similarly worded clause of the New South Wales statute, held that the donee must not only enjoy possession but entirely exclude the donor from association. Their Lordships distinguished the decision in <NAME> v. Commissioner of Stamp Duties,  A.C. 61; 2 E.D.C. 462 (P.C.) on the ground that in that case the gift was of a property shorn of certain of the rights which appertain to complete ownership and that, therefore, the donor cannot, merely because he remains in possession and enjoyment of those rights, be said within the meaning of the Section not to be excluded from possession and enjoyment of that which he has given.

18. <CITATION> , <ORG> held that:

"The crux of Section 10 lies in two parts--(1) the donee must bona fide have assumed possessionand enjoyment of the property, which is the subject-matter of the gift, to the exclusion of the donor, immediately upon the gift, and (2) the donee must have retained such possession and enjoyment of the property to the entire exclusion of the donor or of any benefit to him, by contract or otherwise. As a matter of construction, we are of opinion that both these conditions are cumulative. Unless each of these conditions is satisfied, the property would be liable to estate duty under Section 10 of the Act."

19. We have already held that the subject-matter of the gift was an actionable claim. In almost an identical case, in <CITATION> , <ORG> of this court held that, when an actionable claim was gifted, the subject-matter, of the gift being the donor's interest as a whole in the money lent by him to the firm, it cannot be said that, by reason of the fact that the firm of which the donor was the partner continued to be in possesssion and enjoyment of the property gifted away, there was non-exclusion of the donor to any extent. In another case, in <CITATION> , , where a partner in a firm of money-lending business transferred by means of book adjustment in the accounts of the firm certain sums of money to his sons and daughter as and by way of gift without a physical handing over of the cash and retaining the money in the partnership firm, it was held as follows :

"At the time of making the gift, having regard to the facts, it has to be taken that the two sums transferred by book entries were still available for purposes of the business of the firm, which mean that their user for that purpose would be controlled by the managing partner. In the very nature of things, therefore, the transfer of the two sums by way of gift should be taken subject to the rights of the firm and in the words of <ORG> in <NAME> v. Commissioner of Stamp Duties the two sums were transferred to the donees shorn of the rights which belonged to their partnership. On that view, there can be no question that immediately on the making of the gift, the donees assumed such possession and enjoyment of the subject-matter of the gifts as it was capable of at the time and also that they retained that to the exclusion of the donor. If the donor continued to have control over the two sums, that was not because of any reservation in him while making the gift but because the gift itself was made subject to the condition that the funds would be available for the use of the partnership business and, as such, they would be subject also to the control and management by the donor in his capacity as managing partner."

20. These two decisions of this court directly cover the point at issue. In the case on hand, the donor had advanced money to the partnership. He had only a right to claim that money subject to the rights of the partnership. The donor was also alive to the fact that the amount in the partnership firm would continue to be available to the firm and would be subject to the rights of the other partners. Therefore, when the gift was made, the gift should be deemed to have been made only subject to the rights of the partnership to utilise those funds. The gift in such a case was shorn of those rights which belonged to the partnership. It, therefore, follows that Section 10 of the Estate Duty Act has no application to the present case.

21. The learned counsel for the revenue strongly relied on two decisions of <ORG> <CITATION> ,  73 I.T.R. 171 (Guj.) and <CITATION> ,  73 I.T.R. 416 (Guj.) and a recent <ORG> decision of <ORG> in <CITATION> . <CITATION> Court did not consider the question as to whether the subject-matter of the gift was an actionable claim or a gift of money. It proceeded to decide the issue on the basis that the gift was of a sum. of money by a partner to a third party and, when the amount was kept as a deposit with the partnership firm in the name of the third party, it was held that Section 10 could be applicable on the ground that the deceased who was a partner shall be deemed to be in possession and enjoyment of the property gifted. The decision in <CITATION> followed the decision in <CITATION> . The decision of <ORG> in <CITATION> , of course, considered all these cases. The decisions of this court above referred to were also cited before it. But, the learned judges did not rely on the decisions of this court on the ground that the facts were not clear.

22. As already stated, in our opinion, the subject-matter of the gift was an actionable claim. If the subject-matter was an actionable claim, the gift in favour of the donees was complete and the donor was completely excluded from it, Therefore, Section 10 is not applicable. We respectfully follow the decisions of this court in <CITATION> and <CITATION> in preference to the view expressed by <ORG> in <CITATION> .

23. For the foregoing reasons, we answer the reference in the negative and in favour of the assessee with costs. Counsel's fee Rs. 250.


PETITIONER: RAJASTHAN STATE ELECTRICITY BOARD, <NAME> Vs. RESPONDENT: MOHAN LAL & <NAME>. DATE OF JUDGMENT: 03/04/1967 BENCH: <NAME>, <NAME> BENCH: <NAME>, <NAME> RAO, K. SUBBA (CJ) SHAH, J.C. SHELAT, J.M. MITTER, G.K. CITATION: 1967 AIR 1857 1967 SCR (3) 377 CITATOR INFO : RF 1970 SC1446 (19) RF 1971 SC1828 (12) F 1975 SC1331 (26,37,63,76,78,124,182,192) RF 1976 SC2216 (7) E&R 1978 SC 548 (22) D 1979 SC 65 (3,10) E 1979 SC1628 (27) RF 1981 SC 212 (38,53) RF 1986 SC1571 (46) RF 1987 SC1086 (11) RF 1988 SC 469 (6,7,8) ACT: Employer and employee-Employees of <ORG> Transferred to <ORG> by <ORG> <ORG> and treated as permanent employees of <ORG>-No order making them permanent- If permanent employees of <ORG>. Constitution of India, 1950, Art. 12-" Other authority', meaning of. Electricity (Supply) Act -<ORG> constituted under Act-If "<ORG>". HEADNOTE: In 1958, the services of respondents I and 4 to 14, who were permanent employees of <ORG> holding posts of foremen. were provisionally placed at the disposal of the <ORG> (appellant), constituted under the Electricity (Supply) Act , 1948, The Electricity <ORG> was directed to frame its own grades and service condi(.ions, but this was never done. In 1960, the first respondent was taken on deputation from the <ORG> and posted to the <ORG> of the <ORG> Govvernment retaining his lien in the Electricity <ORG>. The first respondent remained with the <ORG> for about three years, and during that time, the Electricity <ORG> promoted respondents 4 to 14 as Assistant Engineers under the Electricity <ORG>. In 1963, <ORG> directed the reversion of the first respondent to his parent department, namely. the Electricity <ORG>; and the latter posted him as one of its foremen. Zen big request that he was also entitled to be considered for pro- motion as Assistant Engineer was rejected, he moved <ORG> under Arts. 226 and 227 of the Constitution the ground that there was a violation of Arts. 14 and 16; and <ORG> allowed the petition. In appeal to this Court, the appellant-<ORG> contended that : (1) the first respondent never became its permanent servant and so could not claim to be considered along with respondents 4 to 14 ; and (2) the appellant-<ORG> could not be held to be "<ORG>" as defined in Art. 12 and consequently no direction could be issued to it under Art. 226 and 227. HELD : (1) The words "deputation" and "reversion" used in the orders of <ORG> and the Electricity <ORG> implied that the first respondent was being sent back to his parent department, namely, the Electricity <ORG>, from the <ORG> where he had been sent on deputation. Moreover in the case of respondents 4 to 14 who were identically placed with the first respondent, there was nothing to show that after their services were provisionally placed at the disposal of the <ORG>, any order was passed permanently transferring them to the <ORG>, and yet they were treated as permanent employees of the <ORG>. Thus, both the <ORG> and the <ORG>, in dealing with respondent 1 and 4 to 14, treated them as it they had become employees of the <ORG>. Since the <ORG> did not frame any new grades or service conditions, these respondents continued to be governed by identical rules, namely, the old grades and service con- ditions applicable to them when they were servants of <ORG> and therefore, the first respondent was entitled to be considered for promotion under the <ORG> on the basis of equality with respondents 4 to 14. [381E-F; 382D-H] 378 (2)(Per Subba Rao, <NAME>, <NAME>, <NAME> and Mitter JJ.): The appellant-<ORG> is "other authority" within the meaning of Art. 12 and therefore, is "<ORG>" to which appropriate directions could be given under Arts. 226 and 227. [386D] The expression "other authority" is wide enough to include within it every authority created by a statute, on which powers are conferred to carry out governmental or quasi- governmental functions and functioning within the territory of India or under the control of the <ORG> of India. It is not at all material that some, of the powers conferred may be for the purpose of carrying on commercial activities, because, under Arts. 19(1) (g) and 298 even the <ORG> is empowered to carry on any trade or business. In interpreting the expression "other authority" the principle of ejusdem generis should not be applied, because, for the application of that rule, there must be distinct genus or category running through the bodies previously named. The bodies specially named in Art. 12 are the Executive <ORG> of the Union and the <ORG>s, <ORG> and the <ORG>s and local authorities. There is no common genus running through these named bodies, nor could the bodies be placed in one single category on any rational basis. [384C-D, G-N, 385-A, C-D; 386B- <CITATION> .,  1 S.C.R. 778 and <CITATION> .,  1 S.C.R. 656, followed. <ORG> v. Attorney General for Newfoundland,  1 All. E.R. 423 (P.C.) applied. Observations contra in <CITATION> . A.I.R. 1954 Mad. 67, 68 <CITATION> for Admission of Students to <ORG>. A.I.R. 1964 Mys. 6, 9 and <CITATION> ,., A.I.R. 1966 Punj 34, not approved. (Per <NAME>, J.) : Every constitutional or, statutory authority on whom powers are conferred by law is not "other authority" within the meaning of Art. 12. It is only those authorities which are invested with sovereign power, that is, power to take rules or regulations and to administer or enforce them to the detriment of citizens and others that fall within the definition of "<ORG>" in Art. 12 : but constitutional or statutory bodies invested with power but not sharing the sovereign power of the <ORG> are not "<ORG>" within the meaning of that Article. [389B-C, G-H] Since, under Art. 13 , it is only the <ORG> which is prohibited from taking away or abridging fundamental -rights in considering whether a statutory or constitutional body is "other authority" within the meaning of Art. 12 , it would be necessary to consider not only whether against that authority, fundamental rights in terms absolute are intended to be enforced, but also whether it was intended by the Constitution-makers that the authority was invested with the sovereign power to impose restrictions on fundamental rights. [387F] The <ORG> has the power of promoting coordinated development, generation supply and distribution of electricity and for that purpose is invested by the <ORG> with extensive powers of control over electricity undertakings, The power to make rule and regulations and to administer the Act is in substance the sovereign power of the <ORG> delegated to the <ORG>. Since the <ORG> is an authority invested by the Statute with sovereign powers of the <ORG> it is "other authority" within the meaning of Art. 12. [386F-G; 387A-B] 379 JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 466 of 1966.

Appeal by special leave from the judgment and order dated May 14, 1965 of <ORG> in D. B. Civil Mis- cellaneous Writ Petition No. 469 of 1963.

<NAME>, <NAME> and <NAME>, for the appellant. <NAME> and <NAME>, for respondent No. 1. The Judgment of <NAME>, <NAME>, <NAME>, <NAME> and <NAME>, <NAME>. delivered by <NAME>, <NAME>, <NAME> delivered a separate Opinion.

Bhargava, J. The appellant in this appeal is <ORG> Jaipur (hereinafter referred to as "the <ORG>"), a body corporate constituted on 1st July, 1957, under the Electricity (Supply) Act , 1948 (No. 54 of 1948). Before the constitution of the <ORG>, the supply of electricity in the State of Rajasthan was being controlled directly by a department of <ORG> named as <ORG>. Respondent No. 1, <NAME>, as well as respondents 4 to 14 were all permanent employees of <ORG> holding posts of Foremen in <ORG>. On the consti- tution of the <ORG>, the services of most of the employees, including all these respondents, were provisionally placed at the disposal of the <ORG> by a notification issued by the <ORG> on 12th February, 1958, purporting to exercise its powers under section 78A of Act 54 of 1948. In this notification a direction was included that the <ORG> was to frame its own new grades and service conditions under its regulations, and the employees, whose services were transferred to the <ORG>, were to exercise option either to accept these new grades and service conditions, or to continue ill their existing grades and service conditions, except in regard to conduct and disciplinary rules, or to obtain relief from <ORG> service by claiming pension or gratuity as might be admissible on abolition of posts under the Rajasthan Service Rules. The <ORG>, however, did not frame any new grades and service conditions at least up to the time that the present litigation arose. Respondent No. 1 was, however, deputed by <ORG> by its order dated 27th January, 1960, after having worked under the <ORG> for a period of about two years, to <ORG> of the <ORG>. On 10th August, 1960, an order was made by the <ORG> addressed to the Secretary of the <ORG> indicating that respondent No. 1 as well as respondents 4 to 14 were to be treated as on deputation to the <ORG>. On 24th November, 1962, <ORG> passed an order reverting respondent No. 1 to his parent department with effect from 1st December, 1962, but the period of deputation was later extended till 25th July, 1963. On 11th July, 1963, he was actually reverted to the <ORG> from <ORG>, and the <ORG> issued orders posting respondent No. 1 as a Foreman. In the interval, while respondent No. 1 was working in <ORG>, respondents 4 to 14 had been promoted by the <ORG> as Assistant Engineers, while respondent No. 1 was promoted to work as Assistant Engineer in <ORG>. On his reversion, respondent No. 1 claimed that he was also entitled to be promoted as Assistant Engineer under the <ORG>, because some of the other respondents promoted were junior to him, and, in the alternative, that, in any case, he was entitled to be considered for promotion. This request made by him to the <ORG> as well as to <ORG> was turned down and, thereupon, respondent No. 1 filed a petition under Articles 226 and 227 of the Constitution in <ORG>. Respondent No. 1 claimed that he was entitled to equality of treatment with respondents 4 to 14, and, inasmuch as he had not been considered for promotion with them by the <ORG>, the <ORG> had acted in violation of Articles 14 and 16 of the Constitution. The <ORG> contested the petition on two grounds. The first ground was that respondent No. 1 had never become a permanent servant of the <ORG> and never held any substantive post under it, so that he could not claim to be considered for promotion with respondents 4 to 14. The second ground was that the <ORG> could not be held to be "State" as defined in Article 12 of the Constitution and, consequently no direction could be issued to the <ORG> by <ORG> under Art. 226 or Art. 227 of the Constitution on the basis that the actions of the <ORG> had violated Articles 14 and 16 of the Constitution. <ORG> rejected both these grounds, accepted the plea of respondent No. 1, quashed the order of promotion of respondents 4 to 14 and issued a direction to the <ORG> to consider promotions afresh after taking into account the claims of respondent No. 1. The <ORG> has now come up in appeal to '<ORG>, by special leave, against this order of <ORG>. Apart from the <ORG>, the State of Rajasthan, and the Chief Engineer & Technical Member of the Rajasthan State Electricity <ORG>, Jaipur, were also impleaded as opposite parties in the writ petition; and they are respondents 2 and 3 in this appeal.

On the first question, Mr. <NAME> on behalf of the appellant drew our attention to the notification dated 12th February, 1958, in which it was specifically laid down that the services of respondent No. 1 and respondents 4 to 14 were being placed at the disposal of the <ORG> 'provisionally'. He has taken us through the various pleadings in the petition filed by respondent No. 1 to show that the case put forward by respondent No. 1 before <ORG> was that he never became a permanent servant of the <ORG> and was claiming that, after the winding up of <ORG> of the <ORG>, he was temporarily with the <ORG> and, later, became a permanent servant of the <ORG> in <ORG>. <ORG> the other hand, held that the pleadings of respondent No. 1 were obscure and that the correct position was that respondent No. 1 had become an employee of the <ORG>, so that he was entitled to claim promotion in the service of the <ORG>. There is no doubt that in paragraphs 5, 7, 9 and 14 of the petition respondent No. 1 had put forward the case that he was originally a servant of the <ORG> of Rajasthan and continued to be such throughout and retained his lien on that <ORG> service. In paragraph 27, an alternative pleading was also put forward on his behalf that, if it be held that, on the abolition of <ORG> of the <ORG>, he had no lien with the <ORG> and his services were permanently transferred to the <ORG>, he was placed in identical circumstances as the other respondents 4 to 14 and continued to be governed by the service conditions which were applicable to him when he was in the service of the <ORG> <ORG>, so that he was entitled to be considered for promotion with respondents 4 to 14. It is also correct that, initially, when the services of the various respondents were placed at the disposal of the <ORG>, the <ORG> purported to do so provisionally, and at no later stage did the <ORG> pass any order transferring their services to the <ORG> permanently. It, however, appears that both the <ORG> and the <ORG>, in dealing with respondent No. 1 as well as the other respondents, treated them as if they had become employees of the <ORG>. The services of respondent No. 1 were placed at the disposal of <ORG> where he remained for a period of a little over three years, but he was all the time treated there as on deputation. At that time, in the order posting him to <ORG>, it was laid down that he would retain his lien in <ORG>. According to Mr. <NAME>, <ORG> mentioned in this order was meant to refer to <ORG> of the <ORG> which used to be popularly known by that name. We, however, found in the judgment of <ORG> that <ORG> attempted to gather the meaning of the expression "<ORG>" by questioning the counsel for the <ORG> and the officer-in- charge of the <ORG> who appeared before <ORG> and was able to discover that there is no <ORG> existing as such and that this was just another name for the <ORG> Electricity <ORG>. On this view of <ORG>, the order of the <ORG> dated 27th January, 1960, would indicate that the lien of respondent No. 1 was on a post under the <ORG>. Further, when respondent No. 1 was relieved from the post of Assistant Engineer in <ORG>, the order which the <ORG> passed specifically mentioned that he was taken on deputation from the <ORG>, and directed his reversion to his parent department. In the order of reversion, respondent No. 1 was thus treated as an employee of the <ORG> which was described,as his parent department and from which he had been taken on deputation in <ORG>. Even the <ORG> itself, in its order dated 11th July, 1963, proceeded on the basis that respondent No. 1 had reverted from <ORG> and made a direction that, on reversion from that <ORG>, he was posted as Foreman 1, <ORG>-Station, Udaipur, against a newly sanctioned post. Thus, the <ORG> accepted the positon that respondent No. 1 was a servant of the <ORG> and not an employee of the <ORG> <ORG> in <ORG>. The word "reversion" used in the order clearly implied that, even according to the <ORG>, respondent No. 1 was being sent back to his parent <ORG> from a <ORG> where he had been sent on deputation or temporarily. A further consideration is that respondents Nos. 4 to 14 were treated by the <ORG> as its permanent employees and were actually granted promotion to the posts of Assistant Engineers from the posts of Foremen on that basis. In the cases of these respondents also, there is nothing to show that, after their services were provisionally placed at the disposal of the <ORG> by the notification dated 12th February, 1958, any order was passed permanently transferring them to the <ORG> and, yet, they were treated as permanent employees of the <ORG>. Respondent No. 1 was identically placed; and, in these circumstances, we are unable to hold that <ORG> committed any error in holding that respondent No. 1 was in the service of the <ORG> just as were respondents 4 to 14. The notification dated 12th February, 1958, had specifically laid down that the <ORG> was to frame its new grades and service conditions and one of the alternatives to be given to each employee, whose services were placed at the disposal of the <ORG>, was either to be governed by these new grades and service conditions, or to continue to be governed by the grades and service conditions already applicable to them when they were in <ORG>. Since the <ORG> did not frame any new grades or new service conditions, it is clear that respondent No. 1 as well as respondents 4 to 14 continued to be governed by the old grade-, and service conditions applicable to them when they were servants of the <ORG> <ORG> in <ORG> where they were all serving as Foremen. All of them being governed by identical rules, it is clear that respondent No. 1 was entitled to be considered for promotion under the <ORG> on the basis of equality with respondents Nos. 4 to 14.

On the second point that the <ORG> cannot be held to be "<ORG>" within its meaning in Art. 12 of the Constitution, Mr. <NAME> urged that, on the face of it, the <ORG> could not be held to be covered by the authorities named therein, viz., the <ORG> and Parliament of India and the <ORG> and the <ORG> of each of the <ORG>s and local authorities, and the expression "other authorities", if read ejusdem generis with those named, cannot cover the <ORG> which is a body corporate having a separate existence and has been constituted primarily for the purpose of carrying on commerical activities. In support of his proposition that the expression "other authorities" should be interpreted ejusdem generis, he relied on a decision of <ORG> in <CITATION> (1). <ORG>, considering the question whether a <ORG> can be held to be local or other authority as defined in Art. 12 , held: "These words must be construed 'ejusdem generis' with <ORG> or <ORG>, and, so construed, can only mean authorities exercising governmental functions. They would not include persons natural or juristic who cannot be regarded as instrumentalities of the <ORG>. The <ORG> of Madras is a body corporate created by Madras Act VII of 1923. It is not charged with the execution of any governmental functions; its purpose is purely to promote education. Though section 44 of the Act provides for financial contribution by the local <ORG>, the <ORG> is authorised to raise its own funds of income from fees, endowments and the like. It is a <ORG>-aided institution, but it is not maintained by the <ORG>." <CITATION> for Admission of Students to <ORG>), <ORG> similarly held: "The term 'authority' in the ordinary dictionary sense may comprise not merely a person or a group of persons exercising governmental power, but also any person or group of persons who, by virtue of their position in relation to other person or persons, may be able to impose their will upon that other person or persons. But there is an essential difference between a political association of persons called 'the <ORG>' giving rise to political power connoted by the well- known expression 'imperative law' and a non-political association of persons for other purposes by contract, consent or similar type of mutual understanding related to the common object of persons so associating themselves together giving rise to a power which operates not in the manner in which imperative law operates, but by virtue of its acceptance by such associating persons based upon contract, consent or mutual understanding." Proceeding further, the Court held : "The term 'authorities' occurring, in Art. 12 could only mean a person or a group of persons who exercise the legislative or executive functions of a <ORG> or through whom or through the (1) A.1,R. 1954 Mad.67.

(2) A.T.R. 1964 Mysore 6.

instrumentality of whom the <ORG> exercise its legislative or executive power." The latest case on the point cited by Mr. <NAME> is the decision of <ORG> in <CITATION> (1), where the decision ,given in the case of <ORG> (2 ) was followed and the principle laid down therein was approved and applied. On the basis of these decisions, and the principles laid down therein, it was urged that an examination of the provisions of the Electricity Supply Act will show that the <ORG> is an autonomous body which cannot be held to be functioning as an agent of <ORG> and, consequently, it should be held that it is not "<ORG>" within the meaning of Art. 12 of the Constitution.

In our opinion, <ORG> fell into an error in applying the principle of ejusdem generis when interpreting the expression " other authorities" in Art. 12 of the Constitution, as they overlooked the basic principle of interpretation that, to invoke the application of ejusdem generis rule, there must be a distinct genus or -category running through the bodies already named. <NAME> on ,Statute Law summarises the principle as follows :-

"The ejusdem generis rule is one to be applied with caution and not pushed too far.... To invoke the, application of the ejusdem generis rule there must be a distinct genus or category. The specific words must apply not to different objects of a widely differing character but to something which can be called a class or kind of objects. Where this is lacking, the rule cannot apply, but the mention of a single species does not con- stitute a genus(3)."

<NAME> in his book on 'Interpretation of Statutes' explained the principle by saying : "But the general word which follows particular and specific words of the same nature as itself takes its meaning from them, and is presumed to be restricted to the same genus as those words .... Unless there is a genus or category, there is no room for the application of the ejusdem generis doctrine(4)." In <ORG> v. Attorney-General for Newfoundland(5), <ORG> held that, in their opinion, there is no room for the application of the principle of ejusdem generis in the absence of any mention of a genus, since the mention of a single species- for example, water rates-does not constitute a genus. In Art. 12 of the Constitution, the bodies specifically named are <ORG> States, <ORG> and the States, and local authorities. We are unable to find any common genus running through these (1) A.I.R. 1966 Punj. 34.

(3) Craies on Statute Law, 6th Edn., p. 181. (4) Maxwell on Interpretation of Statutes, 11th Edn. pp. 326, 327.

(5) (1939) 1 All E.R. 423.

(2) A.I.R. 1954 Mad.67.

(2) A.I.R. 1954 Mad. 67.

named bodies, nor can these bodies be placed in one single category on any rational basis. The doctrine of ejusdem generis could not, therefore, be, applied to the interpretation of the expression "other authorities" in this article.

The meaning of the word "authority" given in Webster's Third New International Dictionary, which can be applicable, is "a public administrative agency or corporation having quasi- governmental powers and authorised to administer a revenue- producing public enterprise." This dictionary meaning of the word "authority" is clearly wide enough to include all bodies created by a statute on which powers are conferred to carry out governmental or quasigovernmental functions. The expression "other authorities" is wide enough to include within it every authority created by a statute and functioning within the territory of India, or under the control of <ORG>; and we do not see any reason to narrow down this meaning in the context in which the words "other authorities" are used in Art. 12 of the Constitution.

In <ORG>,. <CITATION> (1), <NAME>, J., interpreting the words "other authorities" in Art. 12 , held : "Again, Art. 12 winds up the list of authorities falling within the definition by referring to 'other authorities within the territory of India which cannot obviously be read as ejusdem generis with either the <ORG> and the Legislatures or local authorities. The words are of wide amplitude and capable of comprehending every authority created under a statute and functioning within the territory of India or under the control of <ORG>. There is no characterisation of the nature of the 'authority' in this residuary clause and consequently it must include every type of authority set up under a statute for the purpose of administering laws enacted by the <ORG> or by the <ORG> including those vested with the duty to make decisions in order to implement those laws." <CITATION> (2), this <ORG>, dealing with Art. 12 , held : "Further, all local or other authorities within the territory of India include all authorities within the territory of India whether under the control of <ORG> or the <ORG>s of various <ORG>s and even autonomous authorities which may not be under the control of the <ORG> at all." These decisions of the <ORG> support our view that the expression "other authorities" in Art. 12 will include all constitutional or statutory authorities on whom powers are conferred by law. It is not at all material that some of the powers conferred may be for the purpose of carrying on commercial activities. Under the Constitution, the <ORG> is itself envisaged as having the right to carry on trade or business as men-

(1) [1963] I S.C.R. 778.

(2) [1964] I S.C.R. 656.

<NAME>

tioned in Art. 19(1)(g). In Part IV, the <ORG> has been given the same meaning as in Art. 12 and one of the Directive Principles laid down in Art. 46 is that the <ORG> shall promote with special care the educational and economic interests of the weaker sections of the people. The <ORG>, as defined in Art. 12 , is thus comprehended to include bodies created for the purpose of promoting the educational and economic interests of the people. The <ORG>, as constituted by our Constitution, is further Specifically empowered under Art. 298 to carry on any trade or business. The circumstance that the <ORG> under the Electricity Supply Act is required to carry on some activities of the nature of trade or commerce does not, therefore, give any indication that the <ORG> must be excluded from the scope of the word "<ORG>" as used in Art. 12. On the other hand, there are provisions in the Electricity Supply Act which clearly show that the powers conferred on the <ORG> include power to give directions, the disobedience of which is punishable as a criminal offence. In these circumstances, we do not consider it at all necessary to examine the cases cited by Mr. <NAME> to urge before us that the <ORG> cannot be held to be an agent or instrument of the <ORG>. The <ORG> was clearly an authority to which the provisions of Part III of the Constitution were applicable.

We have already held earlier that, in dealing with the case of respondent No. 1, the <ORG> did not treat him on terms of equality with respondents Nos. 4 to 14 and did not afford to him -the opportunity for being considered for promotion to which he was entitled on that basis. <ORG> was, therefore, right in allowing the petition of respondent No.

1. The appeal is dismissed with costs.

<NAME>, <NAME> I agree with the order proposed by <NAME>, <NAME> The <ORG> is an authority invested by statute with certain sovereign powers of the <ORG>. It has the power of promoting coordinated development, generation, supply and distribution of electricity and for that purpose to make, alter, amend and carry out schemes under Ch. V of the Electricity (Supply) Act, 1948, to engage in certain incidental undertakings; to organise and carry out power and hydraulic surveys; to conduct investigation for the improvement of the methods of transmission; to close down generating stations; to compulsorily purchase generating stations, undertakings, mains and transmission lines; to place wires, poles, brackets, appliances, apparatus, etc; to fix grid tariff; to issue directions for securing the maximum economy and efficiency in the operation of electricity undertakings, to make rules and regulations for carrying out the purposes of the Act; and to issue directions under certain provisions of the Act and to enforce compliance with those directions. The <ORG> is also invested by statute with extensive powers of control over electricity undertakings. The power to make rules and regulations and to administer the Act is in substance the sovereign power of the <ORG> delegated to the <ORG>. The <ORG> is, in my judgment, "other authority" within the meaning of Art. 12 of the Constitution.

I am unable, however, to agree that every constitutional or statutory authority on whom powers are conferred by law is "other authority" within the meaning of Art. 12. The expression "authority" in its etymological sense means a body invested with power to command or give an ultimate decision, or enforce obedience, or having a legal right to command and be obeyed.' The expression "<ORG>" is defined in Art. 12 for the purpose of Part III of the Constitution. Article 13 prohibits the <ORG> from making any legislative or executive direction which takes away or abridges the rights conferred by Part III and declares any law or executive direction in contravention of the injunction void to the extent of such contravention. "In determining what the expression " other authority" in Art. 12 connotes, regard must be had not only to the sweep of fundamental rights over the power of the authority, but also to the restrictions which may be imposed upon the exercise of certain fundamental rights (e.g., those declared by Art. 19 ) by the authority. Fundamental rights within their allotted fields transcend the legislative and executive power of the sovereign authority. But some of the important fundamental rights are liable to be circumscribed by the imposition of reasonable restrictions by the <ORG>. The true content of the expression " other authority" in Art. 12 must be determined in the light of this dual phase of fundamental rights. In considering whether a statutory or constitutional body is an authority within the meaning of Art. 12 , it would be necessary to bear in mind not only whether against the authority, fundamental rights in terms absolute are intended to be enforced, but also whether it was intended by the Constitution makers that the authority was invested with the sovereign power to impose restrictions on very important and basic fundamental freedoms. In my judgment, authorities constitutional or statutory invested with power by law but not sharing the sovereign power do not fall within the expression "<ORG>" as defined in Art. 12. Those authorities which are invested with sovereign power i.e., power to make rules or regulations and to administer or enforce them to the detriment of citizens and others fall within the definition of "<ORG>" in Art. 12 , and constitutional or statutory bodies which do not share that sovereign power of the <ORG> are not, in my judgment, "<ORG>" within the meaning of Art. 12 of the Constitution.

<ORG> dismissed.

L 5 Sup. CI/67-12 L5 sup. CI/67-12


<NAME>, J.

1. The respondent is the owner of a shop in Calicut town and the appellant is his tenant, holding the shop on a month-to-month tenancy. The respondent filed O.S. No. 405 of 1943 for the eviction of the appellant; but before he could obtain a decree, the Non-Residential Building Rent Control Order, 1942, had been amended on nth July, 1944. Apparently unaware of the amendment, a, decree was passed in the respondent's favour on the 8th September, 1944. Almost immediately, the respondent applied for possession, obtained an ex parte order in his favour, and was actually put in possession on the 15th September, 1944. On the 28ih October, 1944, the appellant drew the attention of the executing <ORG> to the amendment on the nth July, 1944, and pointed out that the <ORG> had acted ultra vires, in that its order delivering possession to the respondent was void. The <ORG> then took action under Section 151 of the Code of Civil Procedure and set aside its previous order on the ground that it would not have passed that order if its attention had been drawn to the amendment. The matter was taken in appeal to the Subordinate Judge, who affirmed the decision of the trial <ORG>. The matter came before <NAME>, J., in A.A.A.O. No. 43 of 1946. The learned Judge held that despite the passing of the amendment on the 11th July, 1944, the law to be applied, to the case was the law as it existed at the date of filing the suit. He therefore allowed the appeal with costs throughout. At the same time, he granted leave to appeal under the Letters Patent.

2. There can be no doubt, on the plain words of the amended Clause 8 of the Non-Residential Building Rent Control Order, 1942, that the tenant was entitled to remain in possession.

3. Clause 8(1) says:

A tenant in possession of a non-residential building shall not be evicted therefrom, whether in execution of a decree or otherwise...except in accordance with the provisions of this clause.

As there are no provisions in this clause for the eviction of the tenant on the grounds raised in the suit, it is clear that if this sub-clause be taken at its face value, the tenant could not be evicted even though a decree had been obtained. Sub-clause (2) makes the matter even clearer; because the procedure to be adopted by a landlord who desires to evict his tenant is not to apply to <ORG> in execution of his decree, but to <ORG> for a direction that the tenant be evicted. The Con (roller has then, after giving the tenant a reasonable opportunity of showing cause against the application, to consider whether the tenant has been guilty of any of the laches or defaults referred to in the various paragraphs of Sub-clause (2). If he is satisfied that he has, then he shall order the eviction; if he is not so satisfied, then he is bound to reject the application.

4. The difficulty which the learned Judge felt in giving Clause 8 its plain interpretation was that to do so would be to infringe the principle that a new legislation should not affect existing rights unless the wording of the statute makes it clear, expressly or by necessary implication, that it is to have retrospective effect. Although the suit was still pending at the time when the amendment was made, yet it has not been contended that the introduction of this legislation created a new law to be applied by the <ORG> and that the decree passed by the <ORG> was consequently not a valid one. The execution proceedings were filed long after the amendment came into force. Mr. <NAME> has been constrained to argue that the moment a person files a suit he obtains thereby a vested right to have applied not only to the suit, but to all execution proceedings also, the law relating to execution as it existed at the time of filing the suit. We know of no such principle; and we find no reason to think from the cases that have been cited before us that if a new law is introduced restricting the right to execute, execution proceedings can nevertheless be instituted if such a right existed on the date of the filing of the suit. Our attention has been drawn to the judgment of <NAME>, J., in The United Provinces v. <NAME> (1941) 1 M.L.J. (Supp.) 65 : 3 F.L.J. 97 : I.L.R. 1941 Kar. 73 (F.C.) in which reference is made to certain English cases interpreting British Statutes said to be similar to the Statute here under consideration; but we have not seen those decisions or those Statutes and we are not at all convinced that any such general principle exists.

5. The learned judge, in attempting to reconcile the new amendment with the principle leaning against giving retrospective effect to new legislation, was inclined to think that the words " in execution of a decree " can only be applied to suits instituted after the nth July, 1944. It seem to us, however, that no suits could be instituted after that date; for by the new Act a landlord desirous of evicting his tenant would not file a suit; but would apply directly to the Rent Controller, who would then proceed to hear the objections of the tenant and to decide the case in accordance with the principles laid down in Clause 8. The learned Judge found support for his conclusion in the decision of <NAME>, J., in <CITATION> (1945) 1 M.L.J. 441 in which the learned Judge allowed a revision petition against an order of the Chief Judge of <ORG>, Madras, who, during the course of a petition praying for possession, applied the new law as soon as it came into force and dismissed the application. That case can clearly be distinguished because, as we have already said, we are not here concerned with the applicability of the new law to pending proceedings; and we do not find from <NAME>t, J.'s judgment any principle laid down that could usefully be applied to this case, except the well-recognised one that one should not apply a new law to divest a person of his vested rights, unless by express or necessary implication the new law is made by the <ORG> to do so. In summing up, <NAME>t, J., said:

If and when an application for possession comes before the Controller, the Controller should apply his mind to the circumstances actually and presently before him to enable him to make or refuse an order, and it would be for one side or the other to point out that the application for ejectment had lost its force owing to the fact that since the application had been made, difficulties which were then not in existence had arisen or difficulties that were in existence had disappeared. I am not however concerned with any such position in this case.

It is seen from this passage that the learned Judge, far from thinking that the landlord had, by the institution of his application for possession in the Sub-Court, acquired an absolute right to physical possession, contemplated proceedings before the Rent Controller in which it would be contended by the tenant that in view of the new legislation, actual possession could not be given. <NAME>, J., also referred to certain passages in the judgment of <NAME>, J., in the <ORG> case referred to and said:

<NAME>, J., points out that unless either expressly or by necessary intendment it is made out in the new legislation that it applies to pending proceedings as well, it ought not to be construed to have retrospective operation so as to affect the rights of parties in pending suits.

With respect, we agree with this observation but, as we have already pointed out, we are not concerned here with pending proceedings. We are not prepared to say that during the period between the passing of the decree and the filing of the execution petition there were any pending proceedings. We are only concerned here with the right of the respondent to execute his decree; and we are of opinion that Clause 8 prohibited him from filing an execution petition in the <ORG>, his only way of evicting the tenant being to file an application before the Rent Controller.

6. The appeal is therefore allowed and the decrees of <ORG> and of the first appellate Court restored. The appellant will be given his costs in this Court and before <NAME> J.

7. In this Court <NAME> has been brought on record in the place of the original respondent; and so <NAME> will be liable for costs in this Letters Patent Appeal and the original respondent in the other Courts.


CASE NO.: Appeal (civil) 301 of 1962 PETITIONER: STATE OF ASSAM & ORS. RESPONDENT: PADMA RAM BORAH DATE OF JUDGMENT: 23/11/1962 BENCH: S.K. DAS & J.L. KAPUR & A.K. SARKAR & M. HIDAYATULLAH & R. DAYAL JUDGMENT:

JUDGMENT 1965 AIR (SC) 473 The Judgment was delivered by : S. K. DAS S.K. DAS, J. :

This is an appeal by special leave of this court. On August 25, 1929 <NAME>, respondent before us, was appointed lower division assistant in the office of the Registrar, <ORG>, Assam. The office was situated at Shillong and the respondent was appointed first as a probationer. After the expiry of the probationary period, he was confirmed in service. Later he was promoted to the post of an upper division assistant and ultimately on May 1, 1953 he was appointed superintendent in the office of the Excise Commissioner, Shillong. He was born on January 1, 1906 and was due to superannuate on attaining the age of 55 from January 1, 1961. It appears that the respondent applied for leave preparatory to retirement for four months from September 1, 1960. He did not however actually go on leave till December 22, 1960 on which date an order of suspension was passed against him as per notification No. 4/60/42 which was in the following terms :

"<NAME>, Superintendent of the office of the Commissioner of Excise, Assam is placed under suspension with effect from the date of this order till departmental proceedings to be drawn up against him, are finalised."

A copy of the notification was sent to the respondent with a memo which stated that as the respondent was due to retire with effect from January 1, 1961 his services would have to be extended beyond that date till the completion of the departmental proceedings and necessary orders in this respect would be issued in due course. The case of the State of Assam, appellant before us, is that on December 22, 1960 the respondent left the office without obtaining any orders. On January 6, 1961, a second notification. No. 229/59/16 was issued by the appellant. This notification said :

"The term of the services of Shri <NAME>, Superintendent (under suspension) of <ORG>, Assam is extended for a period of 3 (three) months with effect from the 1st January 1961 or till the disposal of the departmental proceedings, whichever is earlier."

A copy of this notification was also sent to the respondent. Apparently, the departmental proceeding against the respondent was not disposed of within the period of three months mentioned in the notification, and that period came to end on March 31, 1961. On May 9, 1961 a third notification bearing No. 229/59/ 30 was issued and this notificationsaid :

"The term of the services of Shri <NAME>, superintendent (under suspension) of <ORG>, Assam, Shillong is extended for a further period of 3 (three) months with effect from the 1st April, 1961 or till the disposal of the departmental proceedings, whichever is earlier."

On May 23, 1961 the respondent moved <ORG> by means of a petition under Arts. 226 and 227 of the Constitution. In this petition the respondent impugned the two orders passed by the appellant on January 6, 1961 and May 9, 1961 as being orders which were without jurisdiction. The claim off the respondent was that he ceased to be an employee of the appellant with effect from January, 1961 and was not amenable to any departmental proceedings thereafter. The respondent further pleaded that the appellant had no. authority to extend the period of his service retrospectively after his retirement had already taken effect. Fundamental Rule 56 made by the Governor of Assam in exercise of the powers conferred on him under sub-s. (2) of S. 241 of the Government of India Act, 1935 lays down that the date of compulsory retirement of a government servant is the date on which he attains the age of 55 years. The rule, however, states that a government servant may be retained in service after this age with the sanction of <ORG> on public grounds which must be recorded in writing. The case of the respondent was that there was no. public ground for retaining him in service after the age of 55, On the aforesaid pleas, the respondent prayed for an order from <ORG> quashing the impugned orders of January 6, 1961 and May 9, 1961.

2. <ORG> considered Fundamental Rule 56 as applicable to services and posts under the rule-making control of the Secretary of <ORG>, though what was applicable to the respondent was Fundamental Rule 56 as was made by the Governor of Assam. Be that as it may, <ORG> came to the conclusion that on the facts of the case before it the appellant had no. jurisdiction to extend the period of service of the respondent when no. proceedings were pending against him on the date of retirement and even on the dates when the impugned notifications were issued Basing itself on certain observations made by Mr. Justice <NAME> in a decision of <ORG> reported in <CITATION> , 1961 AIR(Cal) 1 (SB) at pp. 9 and 10 <ORG> further held that :

"on the mere possibility of the continuance of the disciplinary proceedings the extension of service of the respondent could not be regarded as on public grounds within the meaning of rule 56."

<ORG> also said that no. previous sanction was taken from the State Government and no. proposals were put up before the Government asking for its sanction for the retention in service of the respondent. <ORG> accordingly allowed the writ petition and directed the appellant - Government not to give effect to the order dated May 9, 1961.

3. The appellant moved this court for special leave and having obtained such leave has preferred this appeal from the decision of <ORG> dated July 13, 1961 by which it allowed the writ petition.

4. We must first read Fundamental Rule 56 made by the Governor of Assam under S. 241 (2) (b) of the Government of India Act, 1935 as it stood at the relevant time, because admittedly the case of the respondent is governed by that rule : -

"The date of compulsory retirement of Government servant is the date on which he attains the age of 55 years. He may be retained in service after this age with the sanction of <ORG> on public grounds which must be recorded in writing, and proposals for the retention of a Government servant in service after this age should not be made except in very special circumstances."

5. Learned counsel for the appellant has strongly contended before us that <ORG> was wrong in holding that the retirement of the respondent automatically took effect on his attaining the age of 55. He has argued that on a proper construction of Fundamental Rule 56, the rule did not confer upon the government servant concerned any right to retire at the age of 55, as it was open to <ORG> to retain him in service even after he had attained the age of 55. Secondly, he has contended that <ORG> was equally wrong in holding that the completion of departmental proceedings against the respondent could not be treated as a "public ground" for retaining him in service within the meaning of the rule. He has argued that the observations made by Mr. Justice <NAME> in 1961 AIR(Cal) 1 (SB) do not correctly interpret the rule and proceed on A wrong assumption that to be "in service" can only mean that the <ORG> servant concerned must be doing or performing the duties of his office. It is pointed out that the order of suspension passed on December 22, 1960 itself connotes that the respondent was to continue in service till departmental proceedings to be drawn up against him were finalised. The order of suspension, it is argued, means continuance in service though the incumbent who is under suspension may not perform any of the duties of his office.

6. These contentions of learned counsel for the appellant appear to us to be not without some force. But in the view which we have taken of this case, it is unnecessary to pronounce finally upon these contentions, because the appellant is faced with another difficulty to which we shall presently refer even on the contentions urged on its behalf.

7. Let us proceed on the footing, as urged by learned counsel for the appellant, that the order dated December 22, 1960 itself amounts to an order retaining the respondent in service till departmental proceedings to be drawn up against him are finalised. We shall also assume that the finalisation of the departmental proceedings mentioned in the order is a public ground on which the respondent could be retained in service. As the order was passed by <ORG> itself, no. question of taking its sanction arises and we think that <ORG> was wrong in holding that the absence of sanction from the state Government made the order bad. Therefore, the effect of the order dated December 22, 1960 was two-fold : firstly, it placed the respondent under suspension and secondly, it retained the respondent in service all departmental proceedings against him were finalised. We treat the order as an order under Fundamental Rule 56 which order having been made before January 1, 1961, the date of respondent's retirement, cannot be bad on the ground of retrospectivity. Then, we come to the order dated January 6, 1961. That order obviously modified the earlier order of December 22, 1960 inasmuch as it fixed a period of three months from January 1, 1961 or till the disposal of the departmental proceedings, whichever is earlier, for retaining the respondent in service. The period of three months fixed by this order expired on March 31, 1961. Thus the effect of the order of January 6, 1961 was that the service of the respondent would come to an end on March 31, 1961 unless the departmental proceedings were disposed of at a date earlier than March 31, 1961. It is admitted that the departmental proceedings were not concluded before March 31, 1961. The clear effect of the order of January 6, 1961 therefore was that the service of the respondent came to an end on March 31, 1961. This was so not because retirement was automatic but because <ORG> had itself fixed the date up to which the service of the respondent would be retained. <ORG> made no. further order before March 31, 1961, but about a month on so after passed an order on May 9, 1961 extending the service of the respondent for a further period of three months with effect from April 1, 1961. We do not think that <ORG> had any jurisdiction to pass such an order on May 9, 1961. According to the earlier order of <ORG> itself, the service of the respondent had come to an end on March 31, 1961. <ORG> could not by unilateral action create a fresh contract of service to take effect from April 1, 1961. If <ORG> wished to continue the service of the respondent for a further period, <ORG> should have issued a notification before March 31, 1961. <CITATION> 64 Ind App 40 : 1937 AIR(PC) 27 ) their Lord- ships of the Privy Council were dealing with a case in which a Sub-Inspector of Police was charged with certain irregular and improper conduct in the execution of his duties. After the Sub-Inspector had retired on invalid pension and his pension had been paid for three months, the matter was re-opened and an order was made removing the Sub-Inspector from service as from the date on which he was invalided. Lord <NAME> speaking for the Board said :

"It seems to require no. demonstration that an order purporting to remove the appellant from the service at a time when, as their Lordships hold, he had for some months duly and properly ceased to be in the service, was a mere nullity and cannot be sustained."

The position is the same here. The respondent had ceased to be in service on March 31, 1961 by the very order of <ORG>. Art. order of retention in service passed more than a month thereafter, was a mere nullity and cannot be sustained.

8. Therefore, the order of <ORG> allowing the writ petition was justified, though not for the reasons given by it. We would accordingly dismiss this appeal, but in the circumstances there will be no order for costs.