PETITIONER: M. <NAME> Vs. RESPONDENT: THE STATE OF KERALA & ANR.(With connected appeals) DATE OF JUDGMENT27/08/1973 BENCH: <NAME>, <NAME>) BENCH: <NAME>, <NAME>) MATHEW, KUTTYIL KURIEN BEG, M. HAMEEDULLAH DWIVEDI, S.N. CHANDRACHUD, Y.V. CITATION: 1973 AIR 2641 1974 SCR (1) 515 1973 SCC (2) 650 CITATOR INFO : F 1976 SC1199 (7) RF 1976 SC2233 (9) RF 1976 SC2437 (20) RF 1979 SC 621 (27) R 1980 SC1255 (18) F 1980 SC1285 (12,27) R 1982 SC1107 (30,33) RF 1989 SC 662 (7) ACT: Constitution of India, 1950, Arts.510 and 311-Abolition of post-Effect of. HEADNOTE: On the questions, (i) whether the Government could abolish a post ill 'the service, and (ii) whats the effect of such abolition on the rights of the holder of the post at the time of abolition. HELD : (1) Every sovereign government has a right to abolish a post ill government service in the interest and necessity of internal Administration. The creation and abolition of a post is dictated by policy, exigencies and administrative necessity in the interest of general public, and the power is not related to the doctrine of pleasure. [520D-E] (2) The protection afforded by Art. 311 of the Constitution is limited to the imposition of the three major penalties, namely, dismissal, removal and reduction in rank. These words are technical words. Every termination of service cannot amount to dismissal or removal. It is only in cases where there is a stigma or a loss of benefit that the removal or dismissal would come under the Article. The expression "rank" in the Article has reference to a person's classification and not to his particular place in the same cadre in the hierarchy of the service to which he belongs. A reduction in rank would be a punishment if it carried penal consequences with it. [521G-522B] <NAME> v. <ORG>,  S.C.R. 828; <CITATION>  S.C.R. 655 and <CITATION> ,  1 S.C.R. 26, referred to. (3) Where a person has a substantive appointment to a permanent post he has a right to hold the post until, under the rules, he attains the age of superannuation or is compulsorily retired after having put in the prescribed number of years' service or the post is abolished; and his service cannot be terminated except by way of punishment for misconduct, negligence, inefficiency or any other dis- qualification found against him on enquiry after due notice to him. An appointment to a temporary post for a certain specified period gives the servant a right to hold the post for the entire period of his tenure, and his tenure cannot be put an end to during that period unless he is, by way of punishment, dismissed or removed from the service. [522E-G] <NAME> v. <ORG>,  S.C.R. 828 and <NAME> etc. v. General Manager, <ORG>, Maligaon, Pandu, etc.  5 S.C.R. 683, referred to. (4) But a post may be abolished in good faith. The abolition of the post may have the consequence of termination of service of a government servant. Such termination however is not dismissal or removal within the meaning of Art. 311 of the Constitution. The opportunity of showing cause against the proposed penalty of dismissal or removal does not therefore arise in the case of the aboli- tion of a post. The abolition is not a personal penalty against the government servant. It is an executive policy decision. Whether after abolition of the post the government servant, who was holding the post would or could be offered any employment under the <ORG>. would therefore be a matter of policy decision of the. Government, because. the abolition of a post does not confer on the person holding the abolished post any right to hold the post. The order abolishing the post may however lose its effective character if it is established to have been made arbitrarily, mala fide or as a mask of some penal action within the meaning of Article 311(2). [522H; 526D-F] 516 (5) The observations in <NAME>a case ( 5 S.C.R. 683), that a person who substantively holds a permanent post has a right to continue in service, subject to the rules of superannuation and compulsory retirement and that 'if for any other reason that right is invaded and he is asked to leave his service, the termination of his service must inevitably mean the defeat of his right to continue in service and as such it, is in the nature of a penalty and amounts to removal' are not authority for the, proposition that abolition of a post in good faith amounts to removal. The earlier observation in the judgment that a permanent servant would normally acquire a right to hold the post until under the rules he attained the age of superannuation or was compulsorily retired or the post was abolished shows that the exception of termination as a result of the abolition of a post was not being considered when the observation was made. [523A- <CITATION>  5 S.C.R. 190, followed. (6) The Moti Ram Deka case has not abolished the doctrine of pleasure as embodied in Article 310. That article has been made subject to Art. 311 where termination is by way of punishment, and in cases where a fixed term contract is made. Article 310(2) authorises 'a provision in such- contract for the payment of compensation to the government servant if before expiry of that period the post is abolished or he is required to vacate the post for reasons not connected with any misconduct. The article furnishes intrinsic evidence that the right to abolish the post is a category of the power exercisable by the <ORG>. The power to abolish the post is however inherent in every sovereign Government and is necessary for the proper functioning and internal administration of the <ORG> and is unaffected by these limitations on the doctrine of pleasure embodied in Art. 310. [525G-526D] (7) No estoppel could arise against the <ORG> in regard to abolition of a post. The courts exclude the operation of the doctrine of estoppel, when it is found that the authority against whom estoppel is pleaded has owed a duty to the public. [526H] (8) When the exigencies of administration required alterations in the establishment and creation of a new department, it is a governmental function' and a policy decision, and no question of mala fides arises. [527C-D] (9) The right to hold a post comes to an end on the abolition of the post which a government servant holds, and therefore, he cannot complain of a violation of Arts. 19(1)(f) and 31 of the Constitution when the post is abolished. [527D-E] (10) Article 14 also is not attracted when the government servant cannot complain of any discrimination on the ground that other government servants, similarly situated had been allowed to remain in service. [527E. F-G] JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 275 of 1971. Appeal by certificate from the judgment and order dated 6th August, 1970 of <ORG> in C.P. No. 931 of 1970.

Civil Appeal No. 2231 of 1970 Appeal by certificate from the judgment and order dated 29-1-70 of <ORG> at Chandigarh in CIVIL Writ No. 3086 of 1968.

Civil Appeal No. 248 of 1971 Appeal by certificate from the Judgment and Order dated 30-9-70 of <ORG> at Chandigarh in Letters Patent Appeal No. 260 of 1969. <NAME>, <NAME> and <NAME>, for the appellant (In C. A. No. 275/71) <NAME> and <NAME>, for the respondent CA. No. 275/71).

Gobind Days, <NAME> and <NAME>, for Attorney General .of India.

<NAME> and <NAME>, for the intervener. <NAME> and <NAME>, for the appellants (In C. A. 2231/70 and 248/71).

<NAME> and <NAME>, for the respondent (In C. As. No. 2231/70 and 248/71).

The Judgment of the Court was delivered by <NAME> Civil Appeal No. 275 of 1971 is by certificate from the judgment dated 6 August, 1970 of <ORG>. The appellant is <NAME>. Civil Appeal No. 2231 of 1970 is by certificate from the judgment dated 29 September, 1970 of <ORG> and Haryana. The appellants are <NAME> and <NAME>.

Civil Appeal No. 248 of 1971 is by certificate from the judgment 30 September, 1970 of <ORG> and Harvana. The appellants are seven in number. They are <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME> <NAME>.

The facts in Civil Appeal No. 275 of 1970 are these. <ORG> was constituted for the State of Kerala by an order dated 29 May, 1965. <ORG> on 26 October, 1965 sanctioned the creation of a temporary post of <ORG> <ORG>er for a period of three Years from 3 June, 1965. <NAME> assumed charge as <ORG> <ORG>er in that temporary post. By an order dated 16 April, 1966 <ORG> defined the constitution, jurisdiction, powers and functions of the <ORG>. The Order stated that the <ORG> would be beaded by a full time officer designated as <ORG> <ORG>er. The <ORG> <ORG>er under the order was to be appointed by the Governor of the State and was not to be removed or suspended from office except in the manner provided for the removal or suspension of the Chairman of the Kerala Public Service <ORG>. On 24 January, 1968 the continuance of the temporary post was sanctioned for a period of one year with effect from 3 june, 1968. Meanwhile <NAME> retired from the post.

By an order dated 24 September, 1968 the appellant <NAME> was appointed as <ORG> Commissioner on a consolidated pay of Rs. 2500 per month for a term of three years from the date of his assuming charge vice <NAME> retired. By an order dated 2 November. 1968 the Government of Kerala ordered that the <ORG> Commissioner would hold office for a period of five years or. till he attained the age of 60 years whichever was earlier. By an order dated 15 November, 1968 sanction was accorded to the continuance of the temporary post of the <ORG> Commissioner till 28 February , 1970.

There was an agreement dated 20 December, 1968 between tile appellant <NAME> and <ORG>. The agreement provided that the term of appointment was to be for a period of five years from 3 October, 1968 or till the appellant attained the age of 60 years whichever is earlier. <ORG> agreement further stated that the appellant is not to be removed or suspended from office except in the manner provided for removal or suspension of the Chairman or Members of <ORG>. By an order dated 24 February 1970 <ORG> stated that the post of Vigilance <ORG>er sanctioned was temporary and the ... Present sanction for the post of Vigilance <ORG>er will expire on 28 February, 1970 and that for the staff of the <ORG> will expire on 28 February, 1971". The order further stated that the <ORG> having considered all aspects of the matter came to the conclusion that there was no need to have a Vigilance <ORG>er. The <ORG>, therefore, ordered that the post of Vigilance <ORG>er would be abolished with effect from 28 February, 1970. The continuance of the staff of the <ORG> upto 15 March, 1970 was sanctioned to enable the office of the <ORG> to wind up its work. It may be stated her-- that ill the <ORG> Order dated 3 December, 1969 sanction for the continuance of the staff in temporary posts from 1 March, 1970 to 28 February, 1971 was accorded. The affidavit evidence of <ORG> about the continuance of the temporary posts in the staff of the Vigilance <ORG> till 28 February, 1971 is that the budget for 1970-71 was prepared in advance of the presentation of the'-proposal in the <ORG>. At the time when the proposals were forwarded by the Administrative Departments concerned with the establishment of the Vigilance <ORG>er no decision had been taken regarding the abolition of the post of the Vigilance <ORG>er. After taking the decision to abolish the Vigilance <ORG> the <ORG> considered the feasibility of omitting the provisions in the budget, but it was found to be too late to make any changes. The post of Vigilance <ORG>er was sanctioned upto 28 February, 1970.. The appellant <NAME> raised three principal contentions in <ORG>. First, that the abolition of the post of Vigilance <ORG>er amounted to removal of the appellant from service within the meaning of Article 311 of the Constitution. Second, that the abolition of the post was made mala fide. Third, the appellant entered into an agreement with the <ORG> and by accepting the offer changed his position and the <ORG> was precluded from altering the terms of agreement on the principle of estoppel. <ORG> did not accept any of the contentions. <ORG> held that the termination of service resulting from the abolition of the post would not attract the provisions of Article 311 of the Constitution. <ORG> however added that this would be so when the abolition of the post was not a colourable exercise of power with a view to removing.the incumbent holding the post from service. <ORG> in the facts and circumstances came to the conclusion that it was. impossible to draw any inference that the abolition of the post was. with a motive of doing away with the services of the petitioner. <ORG> held that no estoppel could arise or operate to fetter the powers and discretion of the <ORG> if in the interest of adminis- tration and in public interest certain alterations in the establishment were made and new posts or departments were created. The reason given by <ORG> was that this would be a governmental function and the court would not sit in judgment on such action and decide whether the course was proper or not. <ORG>, therefore, held that there could not be any estoppel against the <ORG> in the discharge of duty owed to the public. The ratio of <ORG> judgment is that there cannot be an estoppel in respect of statutory provisions of the governance of the <ORG> Which are made for the benefit of some one other than the person against whom the estoppel is asserted. In Civil Appeal No. 2231 of 1970 the questions raised in <ORG> were whether the abolition of <ORG> and the consequential termination of the services of the Chairman and the Member of the <ORG> attracted application of Article 311 of the Constitution. <ORG> found that the <ORG> <ORG> decided in public interest to abolish the <ORG>. There were bickerings among the Members of the <ORG>. The Administrative Reforms <ORG> recommended the abolition of the <ORG>. The appointment of the Members was of a temporary character. Consequent upon the abolition of the <ORG> there existed no post on which the appellants could claim appointment. Civil Appeal No. 248 of 1971 concerns posts held by the appellants in <ORG> in Haryana. The appellants were permanent employees- Their posts were abolished with effect from 26 March 1969. The <ORG> terminated their services upon the abolition of the posts. The appellants raised the similar question as to whether the abolition of posts would attract article 311 of the Constitution. <ORG> relied on its decision in Civil Appeal No. 2231 of 1970 and held that the abolition of posts did not attract Article 311 of the Constitution. The contentions on behalf of the appellant <NAME> were these. First, the order abolishing the post is vitiated by mala fides of respondent No. 2. Second, the abolition of the post does not terminate the agreement, dated 20 December, 1968. Third, the abolition of the post has the effect of terminating the services of the appellant, and, therefore, it is invalid by reason of non-compliance with the provisions of Article 311 of the Constitution. Fourth, the order of the <ORG> was made without giving an opportunity to the appellant and thereby violated the principles of natural justice. It was said that the order of <ORG> entailing the civil consequences of loss of service could be made only after observing the principles of natural justice. Fifth, the principle of estoppel applies to the case that it was not lawful for the <ORG> to terminate the services of the appellant.

On behalf of the other appellants the contentions are these. The right to permanent tenure is created by rules or Acts. The executive decision cannot put an end to these rights. Service Rules create statutory rights to receive salary and pension till the- age of superannuation. These statutory rights constitute property within the meaning of Article 19(1)(f ), 31(1) and (2) of the Constitution. The abolition of a, post is a mere executive decision and it cannot terminate the statutory tenure of service nor can it affect fundamental rights without the support of a valid law. The tenure cannot be taken away by rule or an Act which is inconsistent with Article 311 (1) and (2) of the 'Constitution, both before and after the amendment of that Article. After amendment of Article 311(1) a permanent <ORG> servant holds office during good behaviour and the doctrine of pleasure stands negatived except to the extent saved expressly by Article 310. A premature termination on abolition of post violates Articles 311(2), 19(1) (f) and 31 (1) and also Articles 14 and 16. If termination of employment after notice is bad a termination without notice without a valid rule is worse. The first question which falls for determination is whether the <ORG> has a right to abolish a post in the service. The power to create or abolish a post is not related to the doctrine of pleasure. It is a matter of governmental policy. Every sovereign <ORG> has this power in the interest and necessity of internal administration. The creation or abolition of post is dictated by policy decision, exigencies of circumstances and administrative necessity. The creation, the continuance and the abolition of post are all decided by the <ORG> in the interest of administration and general public.

The next question is whether abolition of post is dismissal or removal within The meaning of Article 311. This question has directly not come up for decision in this Court. There are however observations on this aspect in three decisions of this Court. These are <CITATION>  S.C.R. 828: <CITATION>  5 S.C.R. 190 and <NAME> v. General Manager, <ORG>, Maligaon, Pandu, etc.  5 S.C.R. 683.

Article 311 as it stood prior to the Constitution Fifteenth Amendment Act., 1963 enacted that no person as mentioned in Article 31 1 (1) shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. After the Constitution Fifteenth Amendment Act, 1963 Article 311 states that no person mentioned in Article 311 (1) shall be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of all the charges against him and giving a reasonable opportunity of being heard in respect of those charges. Further, where it is Proposed, after such enquiry, to impose on him any such penalty of dismissal, removal or reduction in rank he has to be riven an opportunity of making repre- sentation to the penalty proposed.

Article 309 provides that subject to the provisions of the Constitution, Acts of the appropriate <ORG> may regulate the recruitment and conditions of service of persons appointed, to public services and posts in connection with the affairs of the <ORG> or of any <ORG>. Therefore, Acts in respect of terms and conditions of service of persons are contemplated. Such Acts of <ORG> must however be subject to the provisions of the Constitution. This attracts Article 310(1). The proviso to Article 309 makes it competent to the President or such person as he may direct-in the case of services and posts in connection with the affairs of the <ORG> and for the Governor of a <ORG> or such person as he may direct in the case of services and posts in connection with the affairs of the <ORG>, to make rules regulating the recruitment and the conditions of service of persons appointed, to such services and posts under the <ORG> and the <ORG>. These Rules and the exercise of power conferred on the delegate must be subject to Article 310. The result is that Article 309 cannot impair or affect the pleasure of the President or the Governor therein specified. Article 309 is, therefore, to be read subject to Article 310.

Article 310 deals with the tenure of office of persons serving the <ORG> or the <ORG>. Article 310 provides that such office is held during the pleasure of the President if the post is under the <ORG> or during the pleasure of the Governor if the post is under the <ORG>. The' doctrine of pleasure is thus embodied in Article 310(1).  Article 310(2) deals with cases of persons appointed under contract. This Article provides that if the President or the Governor deems it necessary to secure the services of a person having special qualification, he may appoint him under a special contract. Such a contract may provide for the payment to him of compensation if before the expiration of an agreed period that post is abolished or he is, for reasons not connected with any misconduct on his part, required to vacate that post. It is noticeable that Article 310 (1) begins with a clause "except as expressly provided by this Constitution". Therefore, the other provisions in the Constitution which impinge on Article 310 have the effect of making Article 310 to be subject to those Articles. The exceptions thus contemplated occur in Articles 124, 148, 218 and 324. Another important exception is Article 311.  Article 311 is however not subject to any other provision of the Constitution.

When Article 311 states that no person shall be dismissed, removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him it affords a protection and security of <ORG> service. Article 311 applies to all <ORG> servants holding permanent, temporary or officiating post. The protection afforded by Article 311 is however limited to the imposition of three major penalties. These are dismissal, removal or reduction in rank. The words ,'dismissed", "removed" and "reduced in rank" are technical words. Both in the case of removal or dismissal there is a stigma. It also involves loss of benefit. There may also be an element of personal blame- worthiness. of the <ORG> servant. Reduction in rank is also a punishment. The expression "rank" in Article 311(7) has I reference to a person's classification and not to his particular place in the same cadre in the hierarchy of the service to which he belongs. Merely sending back a servant to his substantive post has been held not to be a reduction in rank as a punishment since he had no legal right to continue in officiating post. The striking cut of a name from the panel has been held to affect future rights of promotion and to be a reduction in rank.

A reduction in rank is a punishment if it carries pen consequences ,With it. In <NAME> case (supra) it has been said that whether a servant is punished by way of reduction in rank is to be, found by applying one of the two following tests : whether the servant has a right to the post or the rank or whether evil consequences'such as forfeiture of pay or allowances loss of seniority in his substantive rank, stoppage ,or postponement of future chances of promotion follow as a result of the order.

Any and every termination of service cannot amount to dismissal or removal. A termination of service brought about by the exercise of ,contractual right is not by itself dismissal or removal. ( <CITATION> (1953 S.C.R. 665). Again, termination of service by compulsory retirement in terms of a specific rule regulating the conditions of service is not tantamount to infliction of a punishment and does not attract Article 311(2). ( <CITATION> (1955 1 S.C.R. 26). Similarly the retirement of a permanent servant on his attaining the age of superannuation does not amount to his removal within the meaning of Article 311(2). In these cases the termination of service does not ,carry with it ,he penal consequences of loss of pay or allowances.

The ruling in Dhingra case (supra) is that the protection of Article 311 is afforded to permanent as well as temporary posts or officiating in any of them. Where a person has a substantive appointment to a permanent post he has a right to hold the post until, under the ,rules, he attains the age of superannuation or is compulsorily retired after having put in the prescribed number of years' service or the post is abolished and his service cannot be terminated except by way of punishment for misconduct, negligence, inefficiency or any other disqualification found against him on enquiry after due notice to him. This is the statement of law in Dhingra case as well as Moti Ram Deka case (supra). An appointment to a temporary post for a certain specified period gives the servant a right to hold the post for the entire period of his tenure, and his tenure cannot be put an end to during that period unless he is, by way of punishment, dismissed or removed from the service. Except in these two cases the appointment to a post, permanent or temporary, on probation or on an officiating basis or a substantive appointment to a temporary post gives to the servant so appointed no right to the post and his service may be terminated unless his service had ripened into what is, in the service rules, called a quasi-permanent service. (See Dhingra case (supra) ). A post may be abolished in good faith. The order abolishing the post may lose its effective character if it is established to have been made arbitrarily, malafide or as a mask of some penal action within the meaning of Article 311(2).

Counsel for the appellants relied on the observations at pp. 706-707 of the Report in <NAME> case (supra). The observations are these. "A person who substantively holds a permanent post has a right to continue in service, subject, of course, to the rule of superannuation and the rule as to compulsory retirement. if for any other reason that right is invaded and he is asked. to leave his service, the termination of his service must inevitably mean the defeat of his right to continue in service and as such, it is in the nature of a penalty and amounts to removal". These observations were extracted in support of the contention that <NAME> case (supra) is an authority for the proposition that abolition of post amounts to removal. That is totally misreading the decision in <NAME> case (supra).

The phrase "if for any other reason that right is invaded" is in juxtaposition to the two exceptions of the rule of superannuation and the rule of compulsory retirement as exceptions to the applicability of Article 311. The third exception of termination as a result of the abolition of a post was not being considered in that portion of the judgment in <NAME> case (supra). Earlier in the judgment in <NAME> case (supra) it is said that a permanent servant would normally acquire a right to hold the post until under the rules he attained the age of superannuation or was compulsorily retired or the post was abolished. The same view is taken in Champaklal case (supra).

In <NAME> case (supra) it was said that the statement of law in <NAME> case (supra) "in the absence of a contract, express or implied, or service rule the permanent servant cannot be turned out" would permit the authority to terminate the service of a permanent servant under terms of contract or service rules without taking the case under Article 311 though such termination might amount to removal or compulsory retirement. <ORG> in <NAME> case (supra) did not agree with this statement of law in <NAME> case (supra) and laid down the law to be that where a rule is alleged to violate the constitutional guarantee afforded by Article 311 (2) the argument of contract between the parties and its binding character is wholly inappropriate. The introduction of the two clauses "in the absence of a contract, expressed or implied, or service rule" in <NAME>. case (supra) was by reason of consideration of Rule 49 in that case. Rule 49 spoke of termination of employment of a prohibationer or a temporary servant or a servant under a contract not to amount to removal or dismissal within the meaning of that Rule. That is why these two clauses, it was pointed out in <NAME> case, would have no relevance or application to permanent servants.

In other words, it was said that the two tests laid down in <NAME> case (supra) first whether the servant had a right to hold the post and whether he had been visited with evil consequences of the kind referred to therein were not cumulative but were alternative. Therefore, if the first test was satisfied termination of the permanent servant's services would amount to removal because his right to the post is prematurely invaded. This ruling in <NAME> (supra) is on the relevant issue as to whether the order of termination with notice as contemplated in Rule 149 (3) was valid. Such a rule was found to be a clear infraction of Article 31 1. The statement of law in <NAME> case (supra) that in the absence of a contract, express or implied, or a service rule, a permanent servant cannot be turned out of his post unless the post is abolished or unless he is guilty of misconduct was examined In <NAME> case. In <NAME> case (supra) it has been said that in regard to temporary servants or servants on probation the terms of contract or service rules may provide for the termination of the service on notice of a specified period or on payment of salary for the said period, and if in exercise of the power thus conferred the services of a temporary or probationary servant are terminated,' it may not necessarily amount to removal. , If it is shown that the termination of services is no more than discharge simpliciter effected by virtue of the contract, or the relevant rules, Article 311 (2) may not be applicable to such a case, If, however, the, termination of a temporary servant's service in substance represents a penalty imposed on him or punitive action is taken against him then such termination would amount to removal and Article 311(2) would be attracted. The position would be the same in regard to reduction in rank of an officiating servant. The termination of the service of a permanent servant on the terms of a contract or under a service rule will attract Article 311 if such termination is in the nature of penalty and amounts to removal. This statement of law in <NAME> case (supra) is on the consideration of Rules 148(3) and 149(3) of the Indian Railway establishment Code, Rule 148(3) deals with non-pensionable railway servants. Rule 149(3) deals with other railway servants. Both the rules provided that the service of railway servant "shall be liable to termination on notice on either side of the periods shown below." Such notice is 'not however required under those' Rules 148(3)149(3).in cases of dismissal or removal as a disciplinary measure after compliance with the provisions of clause (2)of Article 311 of the Constitution, retirement on attaining the age of superannuation. and termination of service due to mental or physical incapacity. In <NAME> case (supra) it was held that neither of the two rules contemplated an enquiry and in none of the actual cases there the procedure' prescribed by Article 311 (2) was followed. In <NAME> case (supra) Rule 149(3) which permitted termination for service with notice in cases of misconduct, to which the second part of the Rule applied was found to, be unconstitutional. Rules 148 and 149 in <NAME> case (supra) referred to; retirement on superannuation and termination due to physical or mental incapacity. These considerations were not fixed on any ad hoc basis and did not involve exercise of any discretion. these Rules would apply uniformity servants under those categories.

is in this background that the two clauses "in the absence of a contract expressed or implied, or service rule" in <NAME> case (supra) were read to support the reasoning that in regard to a permanent civil servant the termination of his services otherwise than under the rule of superannuation or compulsory retirement would amount to removal. Rules 148 and 149 authorised <ORG> to terminate the services of all the permanent servants on giving notice. That clearly amounted to the removal of the servant in question. Argument was advanced in <NAME> case (supra) that Article 310(1) and Article 311 are to be construed in such manner that the pleasure contemplated by Article 310 (1) does not become illusory. The contention was that Article 311 (2) was in the nature of proviso and an exception to Article 310 and in all cases falling outside the scope of Article 311 the pleasure of the President or the Governor must be allowed to rule. This Court in <NAME> case (supra) said that the pleasure of the President has to be exercised in accordance with the requirements of Article

311. Once it is shown that a permanent civil servant is removed from service Article 311 (2) would apply and Article 310 (1) cannot be invoked independently with the object of justifying the contravention of the provisions of Article 311(2) Where it was said in <NAME> (Supra) that the order of termination could be effective after complying with Article 311 it was presumed that the provisions of Article 311 , viz., issue of the charge-sheet, enquiry would be applicable to such cases of termination. With regard to abolition of post and consequential termination no charges could normally be framed and no enquiry could be held. Therefore, apart from the consideration that abolition of post is not infliction of a penalty like dismissal or removal or reduction in rank, the framing of charge, the enquiry and opportunity of showing cause against the imposition of penalty cannot normally apply to the case of abolition of post. The discharge of the civil servant on account of abolition of the post held by him is not an action which is proposed to be taken as a personal Penalty but it is an action concerning the policy of the <ORG> whether a permanent post should continue or not.

Counsel on behalf of the appellants contended that the power to abolish the post is derived from the doctrine of pleasure as embodied in Article 310 and since <NAME> case (supra) has abolished the doctrine of pleasure there would not exist any power to abolish the post. This contention is unsound. The power to abolish any civil post is inherent in every sovereign Government. This power is a policy decision exercised by the executive. This power is necessary for the proper functioning and internal administration of the <ORG>. The doctrine of pleasure as embodied in Article 310 has not been abolished in <NAME> case (supra). It has been made subject to Article 311. The doctrine of pleasure cannot be invoked to terminate the services in contravention of Article 31 1.  Article 310(2) throws a decisive light on the nature of tenure of office provided by Article 310(1).  Article 310(2) recognises the consequences of service at pleasure and expressly overrides them in a very limited class of cases. These cases are where a fixed term con-

<NAME>

tract is made. Article 310(2 ), authorises payment of compensation to a government servant if before the expiration of that period the post is abolished or he, for reasons not connected with any misconduct, is required to vacate, the post. The termination under Art. 310(2) is in cases of contract having specific provisions for compensation. <NAME> case (supra) has not abolished the doctrine of pleasure as embodied in Article 310.  Article 310 has been made subject to Article 311 where termination is by way of punishment.

Counsel for the appellants contended that since Article 310(2) refers to the event of abolition of post such right is limited by provision for compensation and the necessity of securing the services of the person having special qualification. It is, therefore, argued on behalf of the appellants that there was no unconditional right in the <ORG> or the legislature to abolish the post. The concept of contract of payment of compensation is an exception to the doctrine of pleasure as embodied in Article 310(1). The reference to abolition of post in Article 310 (2) is in relation to payment of compensation as a provision in the contract. The provisions of Article 310(2) furnish intrinsic evidence that the right to abolish the post is a category of power exercisable by the <ORG>. Article 310 is prefaced by the words "expressly provided by this Constitution."

The abolition of post may have the consequence of termination of service of a government servant. Such termination is not dismissal or removal within the meaning of Article 311 of the Constitution. The opportunity of showing cause against the proposed penalty of dismissal or removal does not therefore arise in the case of abolition of post. The abolition of post is not a personal penalty against the government servant. The abolition of post is an executive policy decision. Whether after abolition of the post. the Government servant who was holding the post would or could be offered any employment under the <ORG> would therefore be a matter of policy decision of the Government because the abolition of post does not confer on the person holding the abolished post any right to hold the post. <ORG> was correct in holding that no estoppel could arise against the <ORG> in regard to abolition of post. The appellant <NAME> Knew that the post was temporary. In American Jurisprudence 2d at page 783 paragraph 123 it is stated "Generally, a state is not subject to an estoppel to the same extent as in an individual or a private corporation. Otherwise it might be rendered helpless to assert its powers in government. Therefore as a general rule the doctrine of estoppel will not be applied against the state in its governmental, public or sovereign capacity. An exception how-, ever arises in the application of estoppel to the <ORG> where it is necessary to prevent fraud or manifest injustice". The estoppel alleged by the appellant <NAME> was on the ground that he entered into an agreement and thereby changed his position to his detriment. <ORG> rightly held that the, courts exclude the operation of the doctrine of estoppel, when it is found that the authority against whom estoppel is pleaded has owed a duty to the public against whom the estoppel cannot fairly operate.

Counsel for the appellant <NAME> repeated in this Court the allegations of mala fide in regard to the abolition of post. Broadly the allegations were two fold. First, that the second respondent made a speech in the <ORG> and made references to the appellant-which would show that the second respondent was biased and prejudiced against the appellant. Second, after the abolition of <ORG> a new department was created. The functions of the new department were the same as those of <ORG>. Therefore. the object was not to abolish <ORG> and only to terminate the services of the. appellant. <ORG> held that the <ORG> entertained doubts as to the advisability of establishing <ORG> even before it was constituted in 1965. After the retirement of the first <ORG>er <NAME> the question was again considered. Views were expressed that the <ORG> had not worked satisfactorily. The <ORG>, therefore, de- cided to abolish <ORG>. <ORG> rightly held that the exigencies of administration required alterations in the establishment and creation of a new department. This is a governmental function and a policy decision. <ORG> was correct that there was no reason to hold that there was colourable exercise of power by the <ORG>.

The right to hold a post comes to an end on the abolition of the post which a <ORG> servant holds. Therefore. a <ORG> servant cannot complain of a violation of Article 19(1) (f) and Article 31 of the Constitution when the post is abolished.

Article 14 is not attracted on the facts of the present cases. The appellant in C.A. No. 275 of 1971 was appointed to the ad hoc post of the Vigilance Commissioner. In C.A. No. 2231 of 1970 the Chairman and the Members of <ORG> were discharged on the abolition of that Board. Their cases are similar to the case of the appellant in C.A. No. 275 of 1971. In C.A. No. 248 of 1971 the appellants were permanent teachers of <ORG>. Their duty was to coach the trainees in certain subjects. As the trainees did not offer the subjects in which the appellants were specialists, they became surplus. Their cases also resemble the case of the appellant in C.A. No. 275 of 1971. On the facts of these cases the appellants cannot complain of discrimination because it could not be and has not been shown that the <ORG> servants similarly situated had been allowed to remain in service.

<ORG> was correct in all the three appeals in coming to a conclusion that the abolition of post does not attract Article 31 1.

For the aforesaid reasons the appeals fail and are dismissed. In view of the fact that <ORG> did not make any order as to costs in these appeals each party will pay and bear his own costs in the three appeals. V.P.S.

Appeals dismissed.


CASE NO.: Appeal (civil) 2720 of 2000 PETITIONER: DR. <NAME> Vs. RESPONDENT: JAGDISH DATE OF JUDGMENT: 05/01/2001 BENCH: <NAME> , R.C.Lahoti JUDGMENT:

L.....I.........T.......T.......T.......T.......T.......T..J This appeal by special leave is directed against an order of <ORG> dated 4th February, 2000 rejecting applications (I.A. Nos. 2806/99 and 5957/99) filed by the appellant, the returned candidate, seeking rejection of an electio petition filed by the respondent challenging his election on various grounds contained in those applications.

In the elections to <ORG>, held in 1998, the appellant was declared elected from <ORG> Constituency No. 290, Maheshwar. The defeated candidate (Respondent herein) filed an election petition challenging his election n various ground of commission of corrupt practices, detailed in paragraphs 5 to 17 of the election petition. The election petition had been drawn-up in Hindi language. The affidavit filed in support of the election petition was also drawn up in Hindi anguage. The main objection projected by the appellant in IA 2806/99 to the maintainability of the election petition was that since the affidavit filed in support of allegations of corrupt practice was not drawn up in the manner prescribed by Section 83(1) of t e Representation of the People Act , 1951 (hereinafter referred to as 'the Act') read with Rule 94-A (hereinafter 'the Rules') in the prescribed form No.25, the defect was fatal and the election petition was liable to be dismissed under Section 86(1) of t e Act for non-compliance with the provisions of Section 83 of the Act. The precise objection raised in I.A. No.5957 of 1999 was to the effect that since election petition had been drawn-up in Hindi language and not English language the same was liable to be dismissed not having been drawn up in English language as required by Rule 2(b) of the Madhya Pradesh High Court Rules (hereinafter referred to as '<ORG> Rules'). Both applications were resisted by the election petitioner. Vide order dated 4th February, 2000 a learned Single Judge of <ORG> rejected b th applications.

Mr. <NAME>, learned senior counsel appearing for the appellant, submitted that there was material difference between the verification of the affidavit filed in support of the election petition and the verification of the election petition which rend red the election petition defective and thus liable to be dismissed. Elaborating the objection, it was submitted that in the affidavit dated 11th January, 1999 filed along with the election petition in paragraph KA, the election petitioner had verifie the facts relating to commission of corrupt practice stated in paragraphs 5 to 17 of the petition as true to his "personal knowledge" but in paragraph KHA of the same affidavit, the election petitioner had verified the contents of same "information received by him". It was submitted that this variation in verifying the same facts, both on "personal knowledge" and on "information received", being self-contradictory, rendered the affidavit as paragraphs 5 to 1 of the election petition as being based on "no affidavit" in the eye of law and such a defective affidavit could not be taken into account for trying allegations of corrupt practice in an election petition and, therefore, the election petition was liable to be dismissed in limine under Section 8 of the Act. A perusal of the record reveals that the election petitioner had later on, (possibly to meet the objection regarding defective affidavit) filed an additional affidavit in support of the allegations of corrupt practice verifying the facts stated in parag aphs 5 to 17 as based on his 'personal knowledge' and not on the basis of 'information received' from any other source. That affidavit appears to have been taken on record. According to learned counsel for the respondent on the other hand, none of the grounds raised by the appellant in both the applications could warrant dismissal of an election petition under Section 86 (1) of the Act and <ORG> thus rightly dismi sed both the applications. We have given our thoughtful consideration to the submissions made at the bar and for what follows we are unable to persuade ourselves to agree with the submissions of learned counsel for the appellant. An election petition is liable to be dismissed in limine under Section 86(1) of the Act only if the election petition does not comply with either the provisions of ' Section 81 or Section 82 or Section 107 of the Act'. The requirement of filing an affi avit along with an election petition, in the prescribed form, in support of allegations of corrupt practice is contained in Section 83(1) of the Act. Thus an election petition is not liable to be dismissed in limine under Section 86 of the Act, for all ged non-compliance with provisions of Section 83(1) of the Act or of its proviso. What other consequences, if any, may follow from the an allegedly 'defective' affidavit, is to be judged at the trial of an election petition but Section 86(1) of the Ac in terms cannot be attracted to such a case. <CITATION> :  a three Judge Bench of this Court specifically dealt with an issue concerning defects in the verification of an election petition as well as of defects in the affidavit accompanying an el ction petition wherein allegations of corrupt practice are made. After considering the provisions of Sections 83 and 86 of the Act, as also the requirements of Form No.25 prescribed by Rule 94-A of the Rules and relevant provisions of the Code of Civil rocedure , it was held :

"From the text of the relevant provisions of the R.P. Act, Rule 94-A and Form 25 as well as Order 6 Rule 15 and Order 19 Rule 3 of the Code and the resume of the case law discussed above it clearly emerges (i) a defect in the verification, if any, can be cured (ii) it is not essential that the verification clause at the foot of the petition or the affidavit accompanying the same should disclose the grounds or sources of information in regard to the averments or allegations which are based on information elieved to be true (iii) if the respondent desires better particulars in regard to such averments or allegations, he may call for the same in which case the petitioner may be required to supply the same and (iv) the defect in the affidavit in the prescr bed Form 25 can be cured........"

This judgment was followed by a Division Bench of this Court in <CITATION> : . We are in respectful agreement with the view expressed in <NAME> case (supra) and in view of settled law the conclusion becomes irresistible that defect in verification of an affidavit is curable and does not merit dismissal of an election petition n limine under Section 86 (1) of the Act. The learned Single Judge of <ORG> was, therefore, perfectly justified in dismissing I.A. No.2806 of 1999.

This now takes us to consideration of the objections raised in I.A. No.5957 of 1999 seeking dismissal of the election petition on the ground that the election petition and the affidavit filed in support thereof had been drawn-up in Hindi language and not in English language. The argument raised in <ORG> and reiterated at the <ORG> before us by Mr. <NAME> is that Rule 2(b) of <ORG> Rules provides that every election petition shall be written in English language and since the election peti ion filed by the respondent was written in Hindi and not English language, the same was liable to be dismissed for non-compliance with the said rule, in limine.

<ORG> has framed Rules for trial of election petitions under Article 225 of the Constitution. Under Rule 9 thereof it is provided that the Rules of the High Court shall apply, in so far as they are not inconsistent with the Repre sentation of the People Act , 1951 or the rules, if any, made thereunder or the Civil Procedure Code in respect of all matters. The import of Rule 9 (supra) was considered in <CITATION> :  and this Court opined:

"Moreover, it appears to us that the provisions of Rule 9 of <ORG> Rules regarding the election petitions framed by <ORG> by reference to Rule 7 of <ORG> Rules found in Chapter III r garding affidavits cannot be made use of for this purpose. The former set of rules are made under Article 225 of the Constitution and cannot make any substantive law and the rules themselves on a perusal of them would show that they relate merely to pro edural matters unlike rules made under Section 122 of the Code of Civil Procedure." (Emphasis supplied) Rejecting the preliminary objection to the maintainability of the election petition for non-compliance with the High Court Rules, in <NAME> case this Court held :

"Further more according to Section 86 of the Representation of People Act only petition which do not comply with the provision of Sections 81 or 82 or 117 are liable to be dismissed. We, therefore, over-rule the preliminary objection."

To appreciate the effect of non-compliance with Rule 2(b) of the High Court Rules, it is appropriate to notice some of the relevant statutory provisions at this stage. Rule 2 of the High Court Rules provides:

"2. Every Election petitions shall be -

(a) typewritten or printed fairly and legibly on white foolscap size paper of reasonable quality, one side of the paper only being used, leaving a quarter margin on the left and at least 1/2 inches open space on the top and bottom of each sheet; (b) written in the English language, numbering separately the paragraph thereof; (c) couched in proper language, and in conformity with section 81 , 82 and 83 of the Representation of the People Act, 1951."

Article 329(b) lays down:

"329. Bar to interference by courts in electoral matters -

(a) ... ... ...

(b) no election to either <ORG> of Parliament or to the <ORG> or either <ORG> of the <ORG> of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any l w made by the appropriate <ORG>."

Article 348 (1) provides :

"348. Language to be used in <ORG> and in the High Courts and for Acts, Bills, etc. (1) Notwithstanding anything in the foregoing provisions of this Part, until <ORG> by law otherwise provides-

(a) all proceedings in <ORG> and in every High Court ..............................

shall be in the English language."

Article 348(2) provides as follows:-

"Notwithstanding anything in sub-clause (a) of clause

(l), the Governor of a <ORG> may, with the previous consent of the President, authorise the use of the Hindi language, or any other language used for any official purposes of the <ORG>, in proceedings in <ORG> having its principal seat in that <ORG>:

Provided that nothing in this clause shall apply to any judgment, decree or order passed or made by such High Court.

Rules framed by <ORG> relating to trial of election petitions are only procedural in nature and do not constitute "substantive law". Those Rules have to be read alongwith other statutory provisions to appreciate the consequences of non-complia nce with <ORG> Rules. Article 329(b) mandates that no election to either <ORG> or to either <ORG> can be called in question except through an election petition presented to such authority and in such mann r as is provided for by or under any law made by the legislature. Section 81 of the Act deals with the presentation of an election petition while Section 82 deals with parties to the election petition and Section 83 with contents of such a petition.

Article 348 expressly deals with the language to be used in <ORG> and <ORG> and lays down in Article 348 (1) (a) that all proceedings in <ORG> and <ORG> shall be in the English language. Article 348(2) (supra ), however, carves out an exception to the above general rule.

The non-abstante clause with which Article 348(2) opens, unmistakably shows that the Governor of a State, with the previous consent of the President may authorize the use of Hindi or any other language in proceedings in <ORG> having its princip al seat in that State, save and except that "judgment, decree or order passed or made by such High Court", shall be in the English language as required by Article 348(1). By a Notification dated 18th September, 1971 issued by the Governor of Madhya Pradesh, in exercise of the powers conferred by clause (2) of Article 348 of the Constitution of India, with the previous consent of the President of India, authorised the use f Hindi language in all proceedings of <ORG> other than for drawing up decrees, orders and judgments of <ORG>, subject to certain conditions. Under the said Notification, appeals, petitions etc. could thus, be presented in the High Cou t of Madhya Pradesh drawn-up in the Hindi language, notwithstanding the provisions of High Court Rules. Rule 2(b) of <ORG> Rules cannot be so construed as to render the constitutional provisions contained in Article 348(2) as 'meaningless'. ule 2(b) of <ORG> Rules has to be read along with the Notification issued by the Governor on 18th September, 1971 under Article 348(2) of the Constitution and when so construed, it follows that an election petition may be filed in Hindi language and it cannot be dismissed at the threshold under Section 86 of the Act for alleged non-compliance with Rule 2(b) of <ORG> Rules. The question whether an election petition drawn up in Hindi language is maintainable or not came up for consideration before a learned Single Judge of <ORG> of Madhya Pradesh in Election Petition No. 9 of 1980 titled Devilal s/o. Shriram Khada vs. <NAME> and others. While rejecting the challenge to the maintainability of the election petition drawn up in Hindi language, it was said :-

"Now it is true that Rule 2(b) of the aforesaid Rules does provide that every election petition shall be written in the English language. But in the absence of any provision in the Act or the Rules made thereunder, non compliance with Rule 2(b) of the a oresaid Rules cannot be a ground for dismissal of the petition under Section 86 of the Act."

A contrary view was, however, expressed by another Single Judge of that High Court in <CITATION> . In this case it was held that an election petition filed in Hindi language being violative of Rule 2(b) of the Ru es, relating to filing of election petitions, was not maintainable and was liable to be dismissed under Section 86 of the Act. The learned Single Judge opined :

"The Special Rules framed by <ORG>, in the circumstances, taking into account the implications arising under Article 329(b) of the Constitution of India read with Section 80 of the Representation of the People Act, 1951, relating to election pet tions prescribing the manner for presentation of the election petition by necessary implication stand clothed with such a statutory character which could not be deemed to have been affected by an order relating to authorization contemplated under Article 348 (2) of the Constitution of India so as to take away statutory rigour of the Rules prescribing a requirement of an election petition to be written in English language, numbering separately the paragraphs thereof as provided in rule 2 of the aforesaid ules relating to election petitions."

The interpretation placed on rule 2 of <ORG> Rules, giving it almost primacy over Article 348(2) of the Constitution, in <NAME> case to our mind is fallacious. The learned single Judge appears to have lost sight of the position that R les framed by <ORG> in exercise of powers under Article 225 of the Constitution of India are only rules of procedure and do not constitute substantive law and those rules cannot effect the import of constitutional provisions contained in Articl 348(2) of the Constitution. The high pedestal on which Rule 2(b) of <ORG> Rules has been placed in <NAME> case, not only violates clear constitutional provisions but also introduces a clause in Section 86 of the Act which does not xist. The entire approach to consideration of the effect of the notification issued under Article 348(2) appears to be erroneous. That apart, the defect of not fling an election petition in accordance with Rule 2(b) of the Rules is not one of the defec s which falls either under Sections 81 , 82 of 117 of the Act so as to attract the rigour of Section 86 of the Act as rightly held in <NAME>'s case (supra). Whether any other consequences may follow on account of the alleged defects would depend upon ther factors to be determined at the trial of the election petition but to hold that Section 86(1) of the Act would be attracted for non-compliance with Rule 2(b) of <ORG> Rules is not correct. The learned Single Judge of <ORG> was rig t in rejecting application, I.A. No. 5957 of 1999 and holding that an election petition filed by the respondent could not be dismissed under Section 86(1) of the Act for alleged non-compliance with Rule 2(b) of <ORG> Rules relating to presentati n of election petitions.

It appears that the earlier judgment of the learned Single Judge in <NAME>'s case (supra) was brought to the notice of the learned Single Judge hearing <NAME> case. The learned Judge in the later case noticed the identical nature of the two ca ses, but did not share the view of the <ORG> in <NAME>'s case and a contrary view was expressed. It was observed: "It may be noticed that although like cases should be decided alike but this principle is not in absolute rule nor of universal application. It does admit exceptions. Where there is no discussion regarding applicability of the relevant statutory provis ons and the decision has been reached by a <ORG> in the absence of knowledge of a decision binding on it or a statute and in either case it is shown that had the <ORG> had the said material before it, it must have reached a contrary decision, it is clear y a case of a decision per incuriam which has no binding effect. This principle does not extend to a case where if different arguments had been placed before the said <ORG> or a different material had been placed before it, it might have reached a diffe ent conclusion." (Emphasis supplied) We are unable to appreciate as to how the judgment in <NAME>'s case could be styled as "per incuriam". That apart, the ground on which the judgment in <NAME>'s case (supra) has been distinguished does not stand to reason. We have not been able to appreciate the logic of the observations of the learned Single Judge in <NAME>'s case (supra) that the cont oversy in <NAME> case was "quite different" and not confined to the applicability of section 86 of the Act alone. A reference to paragraph 41 of the judgment in <NAME> case dismissing the election petition in limine, brings out the fal acy of the "difference", as perceived by the learned Single Judge. It was observed :

"In view of what has been indicated hereinabove, I have no hesitation in holding that the present election petition as framed is not at all entertainable. Since even the limitation for filing a fresh election petition in accordance with law and in the anner prescribed has also run out, it is not possible or permissible to permit the petitioner to remove the defect in the presentation of the election petition, the present election petition in the circumstances is not at all triable."

(Emphasis supplied) How could it then be said that the controversy in the two cases was, "different" is not understandable ? We are of the considered opinion that the view expressed in <NAME>'s case was correct view of law and the contrary view expressed in <NAME> case does not lay down correct law. As the learned Single Judge was not in agreement with the view expressed in <NAME>'s case, it would have been proper, to maintain judicial discipline, to refer the matter to a larger <ORG> rather than to take a different view. We note it with regret an d distress that the said course was not followed. It is well settled that if a <ORG> of coordinate jurisdiction disagrees with another <ORG> of coordinate jurisdiction whether on the basis of "different arguments" or otherwise, on a question of law, it s appropriate that the matter be referred to a larger <ORG> for resolution of the issue rather than to leave two conflicting judgments to operate creating confusion. It is not proper to sacrifice certainty of law. Judicial decorum, no less than legal p opriety forms the basis of judicial procedure and it must be respected at all costs. Before parting with this aspect of the case, we wish to recall what was opined in <CITATION> . :  3 SCR 578 : "...If one thing is more necessary in law than any other thing, it is the quality of certainty. That quality would totally disappear if judges of co-ordinate jurisdiction in <ORG> start overruling one another's decision. If one division bench of <ORG> is unable to distinguish a previous decision of another division bench, and holding the view that the earlier decision is wrong, itself gives effect to that view the result would be utter confusion. The position would be equally bad where a Judge sitting singly in <ORG> is of opinion that the previous decision of another single Judge on a question of law is wrong and gives effect to that view instead of referring the matter to a larger <ORG>. In such a case lawyers would not know h w to advise their clients and all courts subordinate to <ORG> would find themselves in an embarrassing position of having to choose between dissentient judgments of their own <ORG>..."

These salutary principles appear to have been over looked by the learned Judge deciding <NAME> case. Thus, for what we have said above, we are not persuaded to take a view different than the one taken by <ORG> in the present case. This appeal has no merits. It fails and is accordingly dismissed but with no order as to costs.

We request <ORG> to expeditiously dispose of the election petition. .........................CJI.


JUDGMENT

1. The parties to the suit out of which this appeal has arisen carried on business in partnership as contractors for the execution of earthworks and similar works for <ORG> under a registered deed of partnership dated the 1st December 1901. Under the partnership article the plaintiff <NAME>, who is now the appellant, was to supply the funds for carrying out any work that might be undertaken, and it was the duty of the respondent <NAME> to supervise and manage all such undertakings. The latter, as the active partner, would, in the first instance, receive all moneys payable to the partnership and it is provided in paragraph. 4 of the deed that whatever cheques and cash were received by him were to be immediately made over to the plaintiff, and in the case of cheques after they had been duly endorsed by the defendant to the plaintiff. Under no circumstances were such cheques and sums of money to be withheld from the plaintiff, and the defendant was not to cash any cheque or spend any money so received. The plaintiff instituted the suit to enforce this article in the partnership deed in respect of a cheque for Rs. 936 which the defendant received from <ORG> on account of certain work done for them by the partnership and which the defendant failed to make over to the plaintiff after making the necessary endorsement. The plaintiff's prayer was that the <ORG> might direct the defendant to endorse the cheque in his favour and to deliver it to him or in the alternative to pay him the amount of the cheque. One of the defendant's answers to the action was that it could not be maintained because dissolution and general accounts were not sought and this is the question with which we are now concerned. It was further pleaded as a fact that the plaintiff, after he received the cheque, agreed that its amount should be set off against what was then due to him in respect of his share of the profits of the business, and also that as the plaintiff failed to supply funds for some other partnership undertaking as required by the agreement he was not entitled to the assistance of the <ORG>. The last two pleas have been held to be unfounded by the <ORG> of First Instance upon the evidence taken in the case, and as that <ORG> was of opinion that the action was maintainable, it gave a decree to the plaintiff. The defendant thereupon appealed, but in the appellate <ORG> satisfied himself with questioning the decision of the <ORG> only on the last mentioned point, and did not object to the <ORG>'s findings on the other pleas. The Subordinate Judge allowed the defendant's appeal, holding that the action was not maintainable, and dismissed it.

2. Mr. <NAME>, who appeared for the plaintiff in the second appeal, has addressed to us an able argument in its support, urging that such an action as that of his client was always entertained, and at all events, even if there be some doubt as to whether it could be sustained under the old technical rule of English procedure the <ORG> have, in modern times, taken a such more reasonable attitude towards all disputes between partners, so that the old rule has for some time been obsolete. He also contends that there is no reason why the Indian <ORG>, which are not hampered by the technicalities of old English procedure should not, at the instance of one partner, compel the other partner to conform to the partnership articles or relieve the injured partner against a breach of such articles. We may point out here that in this case the primary relief asked for is by way of specific performance, and the alternative relief is practically a claim for damages.

3. The history of the development of the English law on the point is so fully set forth in Lord Justice <NAME>'s work on Partnership that it would be superfluous to recapitulate it here. The general rules that may be deduced from the authorities as well established may thus be stated.

4. In the first place the <ORG> will not enforce the specific performance of an executory contract to carry on business in partnership. If the partnership was meant to be determinable at will, a decree to enforce the agreement would obviously be futile, and if the partnership was to be for a term of years it would not be for the benefit of persons who cannot agree that they should be compelled to do business together. The second rule is that the <ORG>, generally speaking, will not undertake to carry on by its own officers a business which the partners to the contract cannot themselves carry on. The reasons for this rule are as apparent as those for the first rule. The third general rule is that the <ORG> will not order a partial account to be taken of the partnership business if the rights of all the partners cannot properly be adjusted without taking a general account with a view to dissolution. Even to the first and second rule exceptions have been admitted. For instance, an agreement of partnership will be specifically enforced by ordering the execution of certain formal instruments, if otherwise the injured partner would be deprived of his legal right. So also the <ORG> will appoint a receiver to carry on a partnership business with a view to the winding of its affairs. The third rule, as it applies now-a-days, leaves it to the <ORG> to determine under what circumstances it would be equitable to order a partial account, having regard to the rights of the parties under the contract--See <NAME> v. <NAME> 15 M.L.J. 142, <NAME> v. <NAME> 18 M. 134, <CITATION> 26 C. 254. 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 <ORG> 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.

5. It has never been a hard-and-fast rule that the <ORG> will not interfere in a dispute between the partners, simply because the dispute relates to a matter connected with the partnership business, and, apart from any technical rules relating to the form of action, the ground for non-interference would seem to be co-extensive with the inability of the <ORG> to give any effective relief or the inexpediency of giving the relief sought having regard to the essential characteristics of a contract of partnership and the justice of the case.

6. As regards the specific relief which the plaintiff seeks in this suit, the law on the point is thus laid down in Lord Justice <NAME>'s book on Specific Performance on page 363 of the 4th Edition:

7. "The <ORG> will not, generally speaking, enforce a contract to enter into a partnership whilst it remains executory, but, nevertheless, when the partnership has been constituted, the <ORG> will, by injunction, enforce the performance of particular terms though it may be incompetent to enforce all the terms: this is the common course of practice in the <ORG>." The only objection that can be urged to the practice is that it would involve the <ORG>'s interference on every occasion when one partner refuses to conform to a partnership article, but the answer to that is best given in the words of Sir <NAME>, M.R., in <NAME> v. <NAME> (1831) 39 Eng. Rep. 427 at P. 428, when he was pressed with the same argument on behalf of a partner who refused to render account of a certain partnership transaction, because dissolution was not asked for:"What right has the defendant to complain of such new bill, if he repeats the injustice of withholding what is due to the plaintiff?" It need hardly be pointed out that to enforce a particular term of a partnership or to restrain its breach is not substantially open to the same objections as enforcing the performance of a contract to carry on a partnership business. We were at first inclined to think that there was a serious objection to the enforcement of a particular article in case of a partnership terminable at will as is the case here. But, after consideration, we think the following observations of Lord Justice <NAME> are applicable to the present case. He says in his book at p. 570:"Where the partnership is determinable at will, there is, it is said, more difficulty in interfering if a dissolution is not sought; for, supposing the <ORG> to interfere, the defendant may immediately dissolve the partnership. But supposing him to do so, an injunction will not necessarily be futile inasmuch as, so long as it continues in force, the defendant is rendered powerless for evil, and a notice by him to dissolve the partnership cannot per se operate as a dissolution of the injunction." In view of what has been said as to the plaintiff's right to specific performance, it becomes hardly necessary to say anything about the alternative prayer, because, as appears from the record, the cheque for Rs. 936 has not been cashed by the defendant.

8. But as the question has been exhaustively argued at the <ORG>, it seems advisable to deal with it. Whether the alternative remedy be regarded as a claim for damages or for a partial account as contended for by the learned <NAME> for the respondent, in either view there appears to be no reason why the <ORG> should not grant the relief asked for. Under the partnership deed the defendant was, in any event, bound to hand over the cheque to the plaintiff without reference to the state of the partnership accounts. The plaintiff supplied all the funds with which the business was carried on, and it is quite reasonable that he should have provided for the safe-guarding of his money, as he has done in clear and explicit terms. In a case like this, if the <ORG> were to refuse to interfere until the partnership was dissolved, the plaintiff might be subjected to serious loss, as the effect might be that the plaintiff would remain under an obligation according to the term of the contract to go on supplying funds in order to complete the works already undertaken, whilst the defendant who did not bring in any capital would be able to appropriate to his own use all the moneys coming in--may be large sums--and it may turn out that he has no means to repay them in case the accounts are found to be against him. It is certainly equitable, perhaps necessary, in this case that the plaintiff should be given the relief he wants, unless there is a rule of law which stands in the way of granting such relief. We have already indicated that there is no such rule of law now in force, and the statement of <NAME> <NAME> in <NAME> v. <NAME> (1877) 67 En. Rep. 432, 434 leaves no doubt on the point. He says at p. 434 that there is no such universal rule of law at the present day, and he adds that it is essential to justice that no such universal rule should be sustained. The authority of <NAME>, J. in <NAME> v. <NAME> (1864) 2 (sic) M.H.C.R. p. 28 has, however, been relied on to the contrary. No doubt, the learned Judge seemed to think that the old rule was still in force and that a partial account could be ordered only in exceptional circumstances. With the greatest respect due to so distinguished a Judge we are inclined to adopt <NAME> <NAME>'s proposition as more correctly stating the law. If there be no such rule, then <NAME>, J.'s dictum that the exceptions to the rule should be extended, has obviously no force. But we fail to see why further exception should not be admitted to the rule, supposing one to exist, if the exigencies of a particular case require it. The cases of <NAME> v. <NAME> and another (1870) 2 N.W.P.H. Ct. Reports 90, <NAME> v. <NAME> (1863) M.H.C. Rep. 1862-1863. p. 341 and <NAME> v. <NAME> (1878) 1 C.L.R. 545, are all practically open to the same criticism.

9. We would, therefore, reverse the judgment of the lower appellate Court and restore that of the <NAME>. It has been suggested by Mr. <NAME>, who appeared fort the respondents, that in case we should hold that the suit is maintainable, we should give him an opportunity of meeting the appellant's case on the other pleas, on which the lower appellate Court has come to no finding. But the findings on these points of <ORG> were not challenged, and the defendant chose to rest his case in appeal on the question of law which was argued before us.

10. We do not think that we ought to accede to the respondent's prayer.

11. This appeal is allowed with costs.


PETITIONER: RATTAN ARYA ETC. ETC. Vs. RESPONDENT: STATE OF TAMIL NADU & ANR. DATE OF JUDGMENT16/04/1986 BENCH: REDDY, O. CHINNAPPA (J) BENCH: REDDY, O. CHINNAPPA (J) RAY, B.C. (J) SINGH, K.N. (J) CITATION: 1986 AIR 1444 1986 SCR (2) 596 1986 SCC (3) 385 1986 SCALE (1)993 CITATOR INFO : RF 1987 SC2117 (8) RF 1991 SC1094 (3,10) ACT: Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, s. 30(ii) - Provisions excepting from the application of the Act residential buildings fetching rent exceeding four hundred rupees - Whether violative of Article 14 of the Constitution. HEADNOTE: Section 30(ii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 excepted from the application of the Act residential buildings which fetched a rent of more than rupees two hundred and fifty per month and non-residential buildings which fetched a rent of more than rupees four hundred per month. This provision was amended in 1961 to make the exception applicable to either a building or part thereof. In 1964, the provision relating to the exception made in the case of non-residential buildings was deleted with the result that tenants of these buildings were entitled to the protection afforded by the Act irrespective of the rent paid by them. The section was further amended by Tamil Nadu Act 23 of 1973 by substituting the figure rupees four hundred for the figure of rupees two hundred and fifty in respect of residential buildings or part thereof. The petitioners in their writ petitions challenged the vires of this provisions, contending that though the Act was designed to apply generally to all residential and non- residential buildings, residential buildings or parts thereof fetching a rent of more than rupees four hundred were singled out and taken out of the purview of the Act by s. 30(ii) arbitrarily and without any reason. The petitions were contested by <ORG> contending in their counter-affidavit to the writ petitions that the classification of the protected buildings and exempted buildings on the basis of the rent was a reasonable one, consistent with the object of the Act and was not discriminatory. Allowing the writ petitions, the <ORG>, 597 ^ HELD : 1. Section 30(ii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 has to be sturck down as violative of Art. 14 of the Constitution since the distinction made by it between the tenant of a residential building and the tenant of a non-residential building and that based on rent paid by the respective tenants has no reasonable nexus to the object of the Act which is aimed at regulating the conditions of tenancy, controlling the rents and preventing unreasonable eviction of tenants of all residential and nonresidential buildings. [606 D; 602 G-H; 603 A] To say that a non-residential building is different from a residential building is merely to say what is self- evident and means nothing. It has not been shown in the instant case that the tenants of non-residential buildings are in a disadvantageous position as compared with tenants of residential buildings and, therefore, they need greater protection. Tenants of both kinds of buildings equally need the protection of the beneficient provision of the Act. [604 C-D] 2. By one stroke s. 30(ii) denies the benefits conferred by the Act on all tenants to tenants of residential buildings fetching a rent in excess of four hundred rupees. While the tenant of a non-residential building is protected, whether the rent is rupees fifty, five hundred or five thousand per month, a tenant of a residential building is protected if the rent is rupees fifty, but not if it is five hundred or five thousand per month. It cannot be said that the tenant of a residential building paying a rent of rupees five hundred is able to protect himself better than the tenant of a non-residential building paying a rent of rupees five thousand per month, or that the tenant of a residential building who pays a rent of rupees five hundred per month is not in need of any statutory protection. [602 E-G] 3. It cannot be pretended that the exclusion of tenants, who pay higher rent, from the purview of the Act will help to protect tenants belonging to the weaker sections of the community. It is one thing to say that tenants belonging to the weaker sections of the people need protection, and an altogether different thing to say that denial of protection to tenants paying higher rents will protect the weaker sections of the society. Inconsistently enough the tenants of 598 non-residential buildings, who are in a position to pay much higher rents than those in occupation of residential buildings can ever pay, are afforded protection by the impugned provision while the latter paying rent in excess of rupees four hundred are left high and dry. [604 F-H; 605 <CITATION> ,  2 S.C.R. 629, distinguished. 4. A provision which was perfectly valid at the commencement of the Act could in course of time become discriminatory and liable to challenge on the ground of unconstitutionality and struck down on that basis. Whatever jurisidiction there might have been in 1973 when s. 30(ii) was amended by imposing a ceiling of rupees four hundred on rent payable by tenants of residential buildings to entitle them to seek the protection of the Act, the passage of time has made the ceiling utterly unreal. There has been enormous multifold increase of rents throughout the country, particularly in urban areas. It is common knowledge that the accommodation which one could have possibly for rupees four hundred per month in 1973 will today cost at least five times more. In these days of universal day-to-day escalation of rentals any ceiling such as that imposed by s. 30(ii) can only be considered to be totally artificial and irrelevant. [605 <CITATION> ,  1 S.C.C. 222, referred to. JUDGMENT:

ORIGINAL JURISDICTION : Writ Petition (Civil) Nos. 13732/83, 5226/82, 754/83, 1117, 13999, 14101, 17189, 11226, and 12783/85.

(Under Article 32 of the Constitution of India.) <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME> and <NAME> for the Petitioners.

<NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, Ms. <NAME>, Ms. <NAME>, P.

<NAME>, <NAME>, <NAME> and <NAME> for the Respondents.

The Judgment of the Court was delivered by <NAME>, J. The question raised in all these writ petitions is whether sec. 30(ii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 is constitutionally valid. This provision excepts from the application of the Act "any residential building or part thereof occupied by any one tenant if the monthly rent paid by him in respect of that building or part exceeds four hundred rupees." The argument is that though the Act is designed to apply generally to all residential and non- residential buildings, residential buildings or parts thereof fetching a rent of more than rupees four hundred are singled out and taken out of the purview of the act, arbitrarily and without any reason. It is said that the classification of tenants of residential buildings fetching a rent of over rupees four hundred per month into a distinct class for the purpose of depriving them of the benefit of the Act by excepting such buildings from the operation of the Act has no reasonable nexus to the three-fold object of the Act, namely, the regulation of the letting of residential as well as non-residential buildings, the control of rents of such buildings and the prevention of unreasonable eviction of tenants therefrom.

In the State of Tamil Nadu, it all started with two wartime measures, the Madras House Rent Control Order, 1941 and the Madras Godown Rent Control Order, 1942, both issued under the Defence of India Rules. These orders were re- issued with slight modifications in 1945 as the Madras Rent Control Order 1945 and the Madras Non-Residential Buildings Rent Control Order 1945. They were repealed and replaced by the Madras Buildings (Lease and Rent Control) Act, 1946. This Act also was later repealed and replaced by the Madras Buildings (Lease and Rent Control) Act, 1949. The present Act, the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 was enacted in 1960 repealing and replacing the 1949 Act. Upto the time of enactment of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, no exception was made from the purview of the Act in respect of any class of residential and non-residential buildings based on the rent fetched by the buildings. By sec. 30(ii) for the first time, the 1960 Act excepted from the application of the Act residential buildings which fetched a rent of more than rupees two hundred and fifty per month and non-residential buildings which fetched a rent of more than rupees four hundred per month as entered in the property register or assessment book of the municipality. In 1961, this provision was amended by Act 20 of 1961 so as to make the exception applicable to either a building or part thereof and on the basis of the actual rent paid by the tenant and not on the basis of the rental value as entered in the property register or assessment book of the municipality. In 1964, the provision relating to the exception made in the case of non-residential buildings fetching a rent of more than rupees four hundred per month was deleted, with the result that tenants of non-residential buildings were entitled to the protection afforded by the Act irrespective of the rent paid by them. Thereafter pursuant to the recommendation made by a Committee appointed by <ORG> in 1969, sec. 30(ii) was further amended by Act 23 of 1973 by substituting the figure rupees four hundred for the figure of rupees two hundred and fifty in that provision. It is the vires of this provision as it now stands, that is in question before us.

The long title of the Act is " An Act to amend and consolidate the law relating to the regulation of the letting of residential and non-residential buildings and the control of rents of such buildings and the prevention of unreasonable eviction of tenants therefrom in the State of Tamil Nadu." The Preamble to the Act similarly recites "Whereas it is expedient to amend and consolidate the law relating to the regulation of the letting of residential and non-residential buildings and the control of rents of such buildings and the preventions of unreasonable eviction of tenants therefrom in the State of Tamil Nadu". "Building" is defined by sec. 2(2) as meaning "any building or hut or part of building or hut, let or to be let separately for residential or non-residential purposes and includes - (a) the garden grounds and out-houses, if any, appurtenant to such buildings, hut or part of such building or hut and let or to be let along with such building or hut, but does not include a room in a hotel or boarding house; section 3 casts a duty on the landlord to give notice of vacancy of a building. Sections 3 and 3(A) prescribe the procedure to be followed after intimation of vacancy is given, either by way of allotment to some other person or release in favour of the landlord. Section 4 provides for the fixation of fair rent both for residential and non- residential buildings. Section 7 prohibits a landlord from receiving rent in excess of the fair rent. Section 8 requires every landlord to issue a receipt duly signed by him for the actual amount of rent or advance received by him. Section 9 enables the tenant to deposit the rent lawfully payable to the landlord in respect of the building before the Controller in certain situations. Section 10 provides for and enumerates the grounds upon which a landlord may seek eviction of his tenant before the Controller. Section 14 provides for recovery of possession of a building bona-fide required by a landlord for carrying out repairs which cannot be otherwise carried out or for the demolition of the building and construction of a new building. Section 15 enables the tenant to re-occupy the building vacated by him to enable the landlord to carry out repairs after such repairs are carried out or after the stipulated time if repairs are not carried out within the time. Section 16 is a provision corresponding to sec. 15 in respect of a building vacated for the purpose of demolition and construction. Section 17 prohibits a landlord from interferring with the amenities enjoyed by a tenant and empowers the Controller to give appropriate relief where such amenities are interferred with. Section 21 prohibits the conversion of a residential building into a non- residential building except with the permission in writing of the Controller. Section 22 makes provisions for effecting repairs to a building where the landlord fails to make the necessary repairs. Thus we see so far, that the scheme and structure, the policy and the plan of the Act, as perceivable from these provisions, are unmistakably aimed at regulating the conditions of tenancy, Controlling the rents and preventing unreasonable eviction of tenants of all residential and non-residential buildings. For the advancement of these objects, tenants are invested with certain rights and landlords are subjected to certain obligations. These rights and obligations, for example, the right of a tenant not to be evicted and the prohibition against a landlord from seeking eviction except upon specified grounds, the right of a tenant not to pay rent in excess of the fair rent and the obligation of a landlord not to demand such excess rent, the right of a tenant to obtain a receipt for the actual amount of rent and advance paid by him and the right of a tenant to enjoy and the obligation of a landlord not to interfere with the enjoyment of the amenities previously enjoyed by the tenant, are rights and obligations which, in any modern civilised society, attach themselves to tenants and landlords of all buildings, residential or non-residential, low-rent or high-rent. They are not rights which are peculiarly capable of enjoyment by occupants of non- residential buildings only as against occupants of residential buildings or by occupants of low-rent buildings only as against occupants of high-rent buildings. None of the main provisions of the Act, to which we have referred, make any serious distinction between residential and non- residential buildings. We may now turn to s. 30(ii) which reads as follows :

"Nothing contained in this Act shall apply to any residential building or part thereof occupied by anyone tenant if the monthly rent paid by him in respect of that building or part exceeds four hundred rupees."

|By one stroke, this provision denies the benefits conferred by the Act generally on all tenants to tenants of residential buildings fetching a rent in excess of four hundred rupees. As a result of this provision, while the tenant of a non-residential building is protected, whether the rent is Rs. 50, Rs. 500 or Rs. 5000 per month, a tenant of a residential building is protected if the rent is Rs. 50, but not if it is Rs. 500 or Rs. 5000 per month. Does it mean that the tenant of a residential building paying a rent of Rs. 500 is better able to protect himself than the tenant of a non-residential building paying a rent of Rs. 5000 per month? Does it mean that the tenant of a residential building who pays a rent of Rs. 500 per month is not in need of any statutory protection? Is there any basis for the distinction between the tenant of a residential building and the tenant of a non-residential building and that based on the rent paid by the respective tenants? Is there any justification at all for picking out the class of tenants of residential buildings paying a rent of more than four hundred rupees per month to deny them the |rights conferred generally on all tenants of buildings residential or non-residential by the Act? Neither from the Preamble of the Act nor from the provisions of the Act has it been possible for us even to discern any basis for the classification made by s. 30(ii) of the Act. In the counter affidavit filed by <NAME> on behalf of the State of Tamil Nadu, the classification is sought to be justified in the following manner :

"I submit that the plea of hostile discrimination and inequality of treatment is not involved in s.

30. I submit the provision for upper limit of rent has been fixed to afford protection to weaker sections of tenants who pay rent below Rs. 400 ................These successive enactments have embodied a prefectly rational principle of classification, and the criteria and their application have been evolved from time to time, in accordance with the needs of this class of citizens. There is also a clear and discernible nexus between the object of the measure and the differentia themselves..................I submit that the classification based on the purpose "residential" and "non-residential" is based on well-recognised and rational principle of differentia ...............It is incorrect to say that s. 30(ii) of the Act defeats the purpose of the Act. As submitted already, the classification of the protected buildings and exempted buildings on the basis of the rent is a reasonable one consistent with the object of the Act and it is not discriminatory. As submitted already, a distinction based on rent in an intelligent one and has also got rational relation to the objects sought to be achieved.............It is equally incorrect to say that the provisions of s. 30(ii) are a total departure from the rent Act and takes away the protection afforded to the tenant under the Act, thus rendering the Act nugatory. As submitted already, the provisions of s. 30(ii) do not at all contain any hostile discrimination, simply because it is based on quantum of rent.........I submit that taking into account the general increase in rent and the cost of living index, the upper limit had to be increased keeping in mind the welfare of the weaker sections of society. Hence I submit that the change of upper limit cannot be said to be discriminatory..........The grant and withdrawal of exemption have been done only keeping in mind the welfare of the weaker sections of the society and it is only with that object, exemption had been withdrawn with regard to residential buildings."

The counter affidavit does not explain why any distinction should be made between residential and non- residential buildings in the matter of affording the protection of the provisions of the Act. To say that a non- residential building is different from a residential building is merely to say what is self-evident and means nothing. Tenants of both kinds of buildings equally need the protection of the beneficent provisions of the Act. No attempt has been made to show that the tenants of non- residential buildings are in a disadvantageous position as compared with tenants of residential buildings and therefore, they need greater protection. There is and there can be no whisper to that effect. To illustrate by analogy, it is not enough to say that man and woman are different and therefore, they need not be paid equal wages even if they do equal work. The counter affidavit has repeatedly referred to the weaker sections of the people and stated that in order to protect the weaker sections of the people, a distinction has been made between them and those who are in a position to pay higher rent. It is difficult to understand how the exclusion of tenants who pay higher rent from the protection afforded by the Act will help to protect tenants belonging to the weaker sections of the community. It is one thing to say that tenants belonging to the weaker sections of the community need protection and an altogether different thing to say that denial of protection to tenants paying higher rents will protect the weaker sections of the community. Further the distinction suggested in the counter appears to be quite antipathic to the actual provision because as we pointed out earlier, there is no such ceiling in the case of tenants of non-residential buildings and therefore a tenant of a non-residential building who is in a position to pay a rent of Rs. 5000 per month is afforded full protection by the Act, whereas, inconsistently enough, the tenant of a residential building who pays a rent of Rs. 500 is left high and dry. It certainly cannot be pretended that the provision is intended to benefit the weaker sections of the people only. We must also observe here that whatever justification there may have been in 1973 when s. 30(ii) was amended by imposing a ceiling of Rs. 400 on rent payable by tenants of residential buildings to entitle them to seek the protection of the Act, the passage of time has made the ceiling utterly unreal. We are entitled to take judicial notice of the enormous multifold increase of rents through out the country, particularly in urban areas. It is common knowledge today that the accommodation which one could have possibly got for Rs. 400 per month in 1973 will today cost at least five times more. In these days of universal, day today escalation of rentals any ceiling such as that imposed by s. 30(ii) in 1973 can only be considered to be totally artificial and irrelevant today. As held by this Court in <CITATION> ,  1 S.C.C. 222 = A.I.R. 1984 S.C. 87 a provision which was perfectly valid at the commencement of the Act could be challenged later on the ground of unconstitutionality and struck down on that basis. What was once a perfectly valid legislation, may in course of time, become discriminatory and liable to challenge on the ground of its being violative of Art. 14. After referring to some of the earlier cases <NAME>, <NAME> observed :

".......The garb of constitutionality which it may have possessed earlier has become worn out and its unconstitutionality is now brought out to a successful challenge."

|Shri <NAME>, learned counsel for the State of Tamil Nadu, invited our attention to some sentences from the judgment of this Court in <CITATION> ,  2 S.C.R. 629 where, referring to s. 30(ii) before it was amended in 1973, it was observed :

"Clause (ii) exempts any residential building or part thereof occupied by any tenant, if the monthly rent paid by him exceeds Rs. 250. Here the object of the legislature clearly was that the protection of the beneficent provisions of the Act should be available only to small tenants paying rent not exceeding Rs. 250 per month as they belong to the weaker section of the community and really need protection against exploitation by rapacious landlords. Those who can afford to pay higher rent would ordinarily be well to do people and they would not be so much in need of protection and can without much difficulty look after themselves."

|These observations were made in 1974 soon after the amendment of the Act in 1973. They were made in a different context and not in the context of a challenge to the vires of the provisions as violative of Art. 14. As we pointed out earlier, the argument based on protection of the weaker sections of the community is entirely inconsistent with the protection given to tenants of non-residential buildings who are in a position to pay much higher rents than the rents which those who are in occupation of residential buildings can ever pay. We are, therefore, satisfied that section 30(ii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 has to be struck down as violative of Art. 14 of the Constitution. A writ will issue declaring sec. 30(ii) as unconstitutional.

P.S.S. Petitions allowed.