PETITIONER: <ORG>. Vs. RESPONDENT: <NAME> SINGH AND OTHERS DATE OF JUDGMENT: 18/01/1965 BENCH: <NAME>, <NAME> (CJ) BENCH: <NAME>, <NAME> (CJ) DAYAL, RAGHUBAR BACHAWAT, R.S. RAMASWAMI, V. CITATION: 1965 AIR 1442 1965 SCR (2) 755 CITATOR INFO : RF 1966 SC1888 (4) RF 1986 SC1272 (88) R 1987 SC 203 (20) RF 1987 SC2323 (2) RF 1989 SC 922 (10) ACT: Letters Patent for <ORG> of Lahore, cls. 10, 11- Delhi Rent Control Act , 1958 (Act 59 of 1958), ss. 39, 43- Single Judge decisions-Appeal under Letters Patent-Whether taken away by legislature-"Final" meaning of- Appeal under a statute if includes Letters Patent Appeal. HEADNOTE: The respondents filed an application before the Controller under s. 14 of the Delhi Rent Control Act for the eviction of the appellant. The Controller allowed the petition and an appeal by the appellant was dismissed by <ORG>, against which a second appeal was filed in <ORG> under s. 39 of the Act. This second appeal was dismissed by the Single Judge and when a further appeal under cl. 10 of the Letters Patent came up for disposal before <ORG>, it was dismissed as not maintainable. In appeal HELD : (i) An appeal to <ORG> will be regulated by the practice and procedure obtaining in <ORG>. Under the rules made by <ORG> in exercise of the powers conferred on it under s. 108 of the Government of India Act, an appeal under s. 39 of the Delhi Rent Control Act will be heard by a Single Judge. Any judgment made by the Single Judge in the said appeal will, under cl. 10 of the Letters Patent, be subject to an appeal to that Court. If the order made by a Single Judge is a judgment and if the appropriate <ORG> has, expressly or by necessary implication not taken away the right of appeal, the conclusion is inevitable that an appeal shall lie from the judgment of a Single Judge under cl. 10 of the Letters Patent to <ORG>. [765 <CITATION> . Ltd.  S.C.R. 1028, National Telephone Co. Ltd. v. Postmaster-General (1913) A.C. 546, <CITATION> , (1947) I.A. 264, Secretary of <ORG> for India v. <NAME>, (1916) I.L.R. 39 Mad. 617, <CITATION> , (1934) L.R. 61 I.A. 158 and <CITATION> , A.I.R. 1936 P.C. 93, relied on. (ii) The expression "final" may have a restrictive meaning in other contexts, but in s. 43 of the Act such a restrictive meaning cannot be given and it indicates that no further appeal is contemplated against the order passed on appeal against the order of the <ORG>. [766 G-H; 768B] <CITATION> ,, (1934) L.R. 61 I.A. 158, Kydd v. <ORG>, (1908) A.C. 327 and Secretary of <ORG> v, <ORG>, A.I.R. 1931 P.C. 149 referred to. (iii) An appeal under s. 39(1) of the Act and an appeal under cl. 10 of the Letters Patent do not form part of a single appeal. They are in law and in fact different appeals--one given by the statute and the other by the Letters Patent. The expression "appeal" in s. 39 of the Act does not take in a Letters Patent Appeal under cl. 10 of the Letters Patent. [769 F-H] 757 <CITATION> ,  3 S.C.R. 497 and <CITATION> .  1 S.C.R. 270, relied on. <NAME> v. <NAME>, A.I.R. 1962 Assam 71 and <CITATION> ,  S.C.R. 1177, referred to. JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 726 of 1964. Appeal from the judgment and order dated December 11, 1963 of <ORG> (<ORG> at Delhi) in L.P.A. No. 85-D of 1963.

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

<NAME>, for respondents Nos. 1 and 2.

<NAME> and <NAME>, for respondents Nos. 3 to 5.

The Judgment of the Court was delivered by <NAME>, J. This appeal by certificate raises the question whether an appeal lies under cl. 10 of the Letters Patent for the <ORG> of Lahore, to <ORG> of <ORG> against a judgment passed by a single Judge of the said <ORG> in a second appeal under s. 39 of the Delhi Rent Control Act, 1958 (Act No. 59 of 1958), hereinafter called the Act.

The facts relevant to the question raised may be briefly stated. The respondents are the owners of plot No. 5, Connaught Circus, New Delhi. Messrs. <NAME> & Co. Private Ltd. took a lease of the same under a lease deed dated March 1, 1956. Messrs. <NAME> & Co. assigned their interest under the said lease deed to <ORG>, the appellant herein. Thereafter, the respondents filed an application before the Controller, Delhi, under s. 14 of the Act for the eviction of the appellant from the said premises on the ground that Messrs. <NAME> & Co. unauthorizedly assigned the said premises in favour of the appellant. The Controller, by his order dated October 10, 1962, allowed the petition. On January 23, 1963, the appeal filed by the appellant against the said order was dismissed by <ORG>, Delhi. Against the said order of the <ORG> the appellant filed an appeal in <ORG> under S. 39 of the Act. The said second appeal was dismissed on May 10, 1963, by <NAME>, J. The appellant filed an appeal against the judgment of the learned single Judge to <ORG> of the said <ORG> under cl. 10 of the Letters Patent. That appeal came up for disposal before <ORG> of the <ORG>, which dismissed the same on the ground that it was not maintainable. Hence the present appeal.

Mr. <NAME>, learned counsel for the appellant raised before us the following points : (1) Section 39 of the Act confers a right of appeal from an order of <ORG> to <ORG> and, therefore, when once that appeal reaches <ORG>, it has to exercise the jurisdiction in the same manner as it exercises other appellate jurisdiction, that is to say the judgment of a single Judge in that appeal becomes subject to an appeal to <ORG> under cl. 10 of the Letters Patent. (2) Section 43 of the Act is only a bar to initiate collateral proceedings for the purpose of questioning the order of' the <ORG> and it does not make the judgment of a single Judge in an appeal under s. 39 of the Act final; and, that apart, a letters patent appeal is not a separate appeal to <ORG> but is only, in effect, the continuation of the same appeal in <ORG>.

The arguments of M/s. <NAME> and <NAME>, learned counsel for the respondents, may be summarized thus : The Act confers a special jurisdiction on <ORG> to entertain an appeal; and the judgment in such an appeal does not attract cl. 10 of the Letters Patent. That apart, the first part of cl. 10 of the Letters Patent on which the appellant relies only provides for an appeal against the judgment of a single Judge made in the exercise of <ORG>'s original jurisdiction; and even if is wide enough to comprehend a judgment made in appellate jurisdiction, it should be an appeal against the order of a <ORG>. In the instant case the <ORG> functioning under the Act is not a <ORG> and, therefore, the judgment passed by a single Judge of <ORG> against the judgment of such a <ORG> is not subject to Letters Patent appeal under the said clause. In any view, S. 43 of the Act makes the judgment of a single Judge made in an appeal final and, therefore, to that extent, cl. 10 of the Letters Patent has been modified by the appropriate <ORG>. Let us at the outset consider the relevant provisions uninfluenced by judicial decisions. At this stage it will be convenient to read the material provisions of the Letters Patent governing the Punjab High <ORG>.

<NAME>

.lm15 Clause 11. And we do further ordain that <ORG> at Lahore shall be <ORG> from the Civil Courts of the Provinces of the Punjab and Delhi and from all other Courts subject to its superintendence, and shall exercise appellate jurisdiction in such cases as were, immediately before the date of the publication of these presents subject to appeal to <ORG> by virtue of any law then in force, or as may after that date be declared subject to appeal to <ORG> at Lahore by any law made by competent legislative, authority for India.

Clause 10, before its amendment by Letters Patent of 1928, read as follows :

"And we do further ordain that an appeal shall lie to the said <ORG> at Lahore, from the judgment (not being an order made in the exercise of revisional jurisdiction and not being a sentence or order passed or made in the exercise of the power of superintendence under the provisions of section 107 of the Government of India Act, 1915, or in the exercise of criminal jurisdiction) of one Judge of the said <ORG> or one Judge of <ORG>, pursuant to section 13 of the said recited Act, and that an appeal shall also lie to the said <ORG> from die judgment (not being a sentence or order as aforesaid) of two or more Judges of the said <ORG>, or of such <ORG>, whenever such Judges are equally divided in opinion, and do not amount in number to a majority of the whole of the Judges of the said <ORG>, at the time being; but that the right of appeal from other judgments of the Judges of the said <ORG>, or of such <ORG>, shall be to Us, Our heirs or successors in Our or <ORG>, as hereinafter provided." After the amendment in 1928, cl. 10 reads "And we do further ordain that an appeal shall lie to the said <ORG> at Lahore from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a <ORG>, subject to the superintendence of the said <ORG>, and not being an order made in the exercise of /6S-2 revisional jurisdiction, and not being a sentence or order passed or made in the exercise of the power of superin- tendence, under the provisions of S. 107 of the Government of India Act, or in the exercise of criminal jurisdiction) of one Judge of the said <ORG> or one Judge of <ORG>, pursuant to section 108 of the Government of India Act, and that notwithstanding anything hereinbefore provided an appeal shall lie to the said <ORG> from a judgment of one Judge of the said <ORG> or one Judge of <ORG>, pursuant to section 108 of the Govern- ment of India Act , made on or after the first day of February, 1929, in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a <ORG> subject to the superintendence of the said <ORG>, where the Judge who passed the judgment declares that the case is a fit one for appeal; but that the right of appeal from other judgments of Judges of the said <ORG> or of such <ORG> shall be to Us, Our heirs or successors in Our or <ORG>, as hereinafter provided." The first part of cl. II of the Letters Patent says that the <ORG> shall be a <ORG> of appeal from civil courts of the Provinces of Punjab and Delhi and from all other <ORG>s subject to the superintendence of the <ORG>; the second part thereof empowers the <ORG> to exercise appellate jurisdiction in such cases as were immediately before the date of the publication of the Letters Patent subject to appeal to the Chief <ORG> of Punjab by virtue of any law then in force, or as may after that date be declared subject to appeal to the <ORG> at Lahore by any law made by competent legislative authority for India. The second part does not make a distinction between appellate jurisdiction over <ORG>s and that over <ORG>s which are not <ORG>s. If a law made by a competent legislative authority declares a case to be subject to appeal to the <ORG>, the said <ORG> acquires jurisdiction to entertain the same and dispose of it in accordance with law. If the <ORG> entertains an appeal in terms of cl.11 of the Letters Patent, cl. 10 thereof is attracted to such an appeal. Under S. 108 of the Government of India Act, 1915, the <ORG> may by its own rules provide, as it thinks fit, for the exercise by one or more Judges or by a <ORG> constituted by two or more Judges of the <ORG>, of original and appellate jurisdictions vested in the <ORG>; and under cl. (2) thereof the Chief Justice of each <ORG> shall determine what Judge in each case is to sit alone, and what Judges of the <ORG>, whether with or without the Chief Justice, are to constitute the several <ORG>s. If in exercise of the jurisdiction under s. 108 of the Government of India Act, 1915, an appeal filed in a <ORG> is posted before a single Judge of that <ORG> and a judgment is delivered therein by that Judge, one has to look to cl. 10 of the Letters Patent whether a further appeal lies to the <ORG> against the said judgment. Before the amendment of cl. 10 of the Letters Patent in 1928, from the judgment of a single Judge of the said <ORG> or one Judge of <ORG> an appeal lay to the said <ORG>; but there were certain exceptions to that rule. If the judgment was made by a single Judge in exercise of the powers of superintendence under s. 107 of the Government of India Act, 1915, or in exercise of criminal jurisdiction, no further appeal lay from his judgment. There were no further exceptions such as that the said judgment should have been in an appeal against an order of a <ORG>. A plain reading of the said clause indicates that except in the 3 cases excluded an appeal lay against the judgment of a single Judge of the <ORG> to the <ORG> in exercise of any other jurisdiction. As the clause then stood, it would appear that an appeal lay against the judgment of a single Judge of the <ORG> made in exercise of second appellate jurisdiction without any limitation thereon. The effect of the amendment made in 1928, so far as is relevant to the present enquiry, is the exclusion of the right of appeal from a judgment passed by a single Judge sitting in second appeal unless the Judge who passed the judgment grants a certificate that the case is a fit one for appeal. The amended clause, presumably for the purpose of artistic drafting, practically leaves the first part as it was and in the second part introduces a limitation in the matter of a further appeal against the judgment of such a single Judge. Looking at the first part of the amended clause excluding the exceptions, it is obvious that its wording is general. Thereunder an appeal lies from the judgment of one Judge of the said <ORG>, whether the said judgment is made in exercise of appellate, revisional or criminal jurisdiction or where the judgment is made in a first appeal or second appeal against the order of a <ORG> or a <ORG>. Four exceptions are carved out from the general rule. Apart from the three exceptions to the general rule already noticed in the context of the unamended clause, the amended clause introduces another exception noticed supra. The result is that under the first part of cl. 10 of the Letters Patent an appeal lies from the judgment of a single Judge of the <ORG> passed by him in exercise of his original jurisdiction or in exercise of first appellate jurisdiction, whether the appeal is against the order of a <ORG> or not; and in the case of second appellate jurisdiction, if the, appeal is against the order of a <ORG>, which is not a <ORG>. But in the case of a judgment made in a second appeal against the decree or order of a <ORG> subordinate to the <ORG>, no further appeal lies unless the said Judge declares that the case is a fit one for appeal. It is not permissible, by construction, to restrict the scope of the generality of the provisions of cf. 10 of the Letters Patent. The argument that a combined reading of cls.10 and 11 of the Letters Patent leads to the conclusion that even the first part of cl. 10 deals only with appeals from <ORG>s subordinate to the <ORG> has no force. As we have pointed out earlier, cl. 11 contemplates conferment of appellate jurisdiction on the <ORG> by an appropriate <ORG> against orders of a <ORG>. Far from detracting from the generality of the words "judgment by one Judge of the said <ORG>", cl. 11 indicates that the said judgment takes in one passed by a single Judge in an appeal against the order of a <ORG>. It is said, with some force, that if this construction be accepted, there will be an anomaly, namely, that in a case where a single Judge of the <ORG> passed a judgment in exercise of his appellate jurisdiction in respect of a decree made by a <ORG> subordinate to the <ORG>, a further appeal to that <ORG> will not lie unless the said Judge declares that the case is a fit one for appeal, whereas, if in exercise of his second appellate jurisdiction, he passed a judgment in an appeal against the order of a <ORG>, no such declaration is necessary for taking the matter on further appeal to the said <ORG>. If the express intention of the <ORG> is clear, it is not permissible to speculate on the possible reasons that actuated the <ORG> to make a distinction between the two classes of cases. It may be, for ought we know, the <ORG> thought fit to impose a limitation in a case where 3 <ORG>s gave a decision, whereas it did not think fit to impose a limitation in a case where only one <ORG> gave a decision.

This Court in <CITATION> . Ltd.(.') construed cl. 15 of the Letters Patent for the Bombay High Court, corresponding to cl. 10 of the Letters (1)  S.C.R. 1028,1044.

Patent for <ORG>. There the question was whether a Letters Patent appeal lay from a judgment of a single Judge of <ORG> to a Division Bench of that <ORG> against the decision of the Registrar of Trade Marks under the Trade Marks Act , 1940. Section 76(1) of the said Act provided that "an appeal shall lie from any decision of the Registrar under this Act or the rules made thereunder to <ORG> having jurisdiction"; and the Act did not make any provision in, regard to the procedure to be followed by <ORG> in the appeal, or as to whether the order passed in the appeal was appealable. Two points were raised before this <ORG>, namely, (1) the provisions of the first part of cl. 15 of the Letters Patent for <ORG> could not be attracted to an appeal preferred to <ORG> tinder s. 76 of the Trade Marks Act. 1940. and (2) the said clause would have no application in a case where the judgment could not be said to have been delivered pursuant to s. 108 of the Government of India Act', 1915. On the first question, this <ORG> held that <ORG> being seized as such of the appellate jurisdiction conferred by s. 76 of the Trade Marks Act, 1940, it had to exercise that jurisdiction in the same manner as it exercised its other appellate jurisdiction and when such jurisdiction was exercised by a single Judge, his judgment became subject to appeal tinder cl. 15 of the Letters Patent of <ORG> there being nothing to the contrary in the Trade Marks Act . On the second question. this <ORG> held thus "We are therefore of the opinion that section 108 of the Government of India Act, 1915, conferred power on <ORG> which that <ORG> could exercise from time to time with reference to its jurisdiction whether existing at the coming into force of the Government of India Act, 1915, or whether conferred on it by any subsequent legislation."

The difference between that case and the present one is that the single Judge in that case passed a judgment in a first appeal against the order of the Registrar, while in the present case the single Judge passed an order in a second appeal. But that will not make any difference in the construction of the first part of cl. 10 of the Letters Patent for <ORG> of Lahore, corresponding to cl. 15 of the Letters Patent for <ORG> of Bombay. Another difference is that while under the last part of cl. II of the Letters Patent for <ORG> there are the words "or as may after that date be declared subject to appeal to <ORG> at Lahore by any law made by competent legislative authority for India", the said words are absent in the corresponding cl. 16 of the Letters Patent for <ORG>. Notwithstanding the said omission this Court in the said case held that the appeal under the Trade Marks Act was an addition of a new subject- matter of appeal to the appellate jurisdiction already exercised by <ORG> and that the rules made under S. 108 of the Government of India Act, 1915, applied to the same. It is contended that in that case it was not argued that the Registrar was not a Court, and therefore, <ORG> assumed that the Registrar was a Court and on that assumption held that the first part of cl. 15 of the Letters Patent of <ORG> was attracted. We do not see any justification for this argument. One of the contentions raised before the Court was that the Trade Marks Act created a new <ORG> and conferred a new appellate jurisdiction on <ORG>. This Court rejected that contention with the following words :

"The statute creates the Registrar a tribunal for safeguarding these rights and for giving effect to the rights created by the Act and <ORG> as such without more has been given appellate jurisdiction over the decisions of this tribunal."

The entire judgment proceeded on the basis that the Registrar was only a tribunal. It is not possible to visualize that both the Advocates as well as the Judges of this Court missed the point that the tribunal was not a Court and, therefore, applied the first part of cl. 15 of the Letters Patent of <ORG>. Indeed, the question of applicability of s. 108 of the Government of India Act, 1915, to the appeal in that case would not have arisen if it was an appeal against the order of a civil Court. We, therefore, cannot countenance the argument that this Court assumed that the Registrar was a Court in applying cl. 15 of the Letters Patent of <ORG> in the appeal in question in that case. This decision therefore covers the question now raised before us. The relevant rule applicable to the present case has been stated by this Court in the aforesaid decision thus;

"Obviously after the appeal had reached <ORG> it has to be determined according to the rules of practice and procedure of that <ORG> and in accordance with the provisions of the charter under which that <ORG> is constituted and which confers on it power in respect to the method and manner of exercising that jurisdiction. The rule is well settled that when a statute directs that an appeal shall lie to a <ORG> already estab- lished, then the appeal must be regulated by the practice and procedure of that court."

This principle was laid down by <ORG> in a number of decisions : see <ORG> v. Postmaster-General(1); <CITATION> (2) ; Secretary of <ORG> for <CITATION> (3); <CITATION> (4 and <CITATION> (5).

The following legal position emerges from the said discus- sion : A statute may give a right of appeal from an order of a tribunal or a <ORG> to the High <ORG> without any limitation thereon. The appeal to the High <ORG> will be regulated by the practice and procedure obtaining in the High <ORG>. Under the rules made by the High <ORG> in exercise of the powers conferred on it under S. 108 of the Government of India Act, 1915, an appeal under s. 39 of the Act will be heard by a single Judge. Any judgment made by the single Judge in the said appeal will, under cl. 10 of the Letters Patent, be subject to an appeal to that <ORG>. If the order made by a single Judge is a judgment and if the appropriate <ORG> has, expressly or by necessary implication, not taken away the right of appeal, the conclusion is inevitable that an appeal shall lie from the judgment of a single Judge under cl. 10 of the Letters Patent to the High <ORG>. It follows that, if the Act had not taken away the Letters Patent appeal, an appeal shall certainly lie from the judgment of the single Judge to the High <ORG>.

In the view we have expressed it is not necessary to consider the, question whether the tribunal is a court or not, for, as we have pointed out earlier, it is not germane to the question of maintainability of the Letters Patent appeal.

The next question is whether the right of appeal conferred by cl. 10 of the Letters Patent, Lahore, has been taken away by a law made by the appropriate <ORG>. It is conceded that the appropriate <ORG> can take away that right : see cl. 37 of the Letters Patent, Lahore. It is argued by the learned (1) [1913] A.C. 546. (2) [1947] 74 I.A. 264. (3) (1916) I.L.R. 39 Mad. 617. (4) (1934) L.R. 61 I.A. 158. (5) A.I.R. 1936 P.C. 93.

counsel for the respondents that S. 43 of the Act has that effect. The relevant provisions of the Act may now be noticed.

Section 39 . (1) Subject to the provisions of subsection (2), an appeal shall lie to <ORG> from an order made by the <ORG> within sixty days from the date of such order. (2) No appeal shall he under sub-section (1), unless the appeal involves some substantial question of law.

Section 43 . Save as otherwise expressly provided in this Act, every order made by the Controller or an order passed on appeal under this Act shall be final and shall not be called in question in any original suit, application or execution proceeding.

A combined reading of the said two sections may be stated thus Subject to the right of appeal to <ORG> on a substantial question of law, the order passed by <ORG> on appeal is final and it shall not be called in question in any original suit. application or execution proceeding. Mr. <NAME> contends that the last sentence, in s. 43 of the Act gives colour to the expression "final". According to him, finality is only with reference to collateral proceedings, such as, suits, applications and execution proceedings.

The expression "final" prima facie connotes that an order passed on appeal under the Act is conclusive and no further appeal lies against it. The last sentence in S. 43 of the Act, in our view, does not restrict the scope of the said expression; indeed, the said sentence imposes a further bar. The expression "final" in the first part of s. 43 of the Act puts an end to a further appeal and the words "shall not be called in question in any original suit, application or execution proceeding" bar collateral proceedings. The section imposes a total bar. The correctness of the judgment in appeal cannot be questioned by way of appeal or by way of collateral proceedings. It is true that the expression "final" may have a restrictive meaning in other contexts, but in S. 43 of the Act such a restrictive meaning cannot be given, for Ch. VI of the Act provides for a hierarchy of tribunals for deciding disputes arising thereunder. The Act is a self contained one and the intention of the <ORG> was to provide an exhaustive code for disposing of the appeals arising under the Act. The opening words of S. 43 of the Act "save as otherwise expressly provided in this Act emphasize the fact that the finality of the order cannot be questioned by resorting to something outside the Act. Some of the decisions cited at the <ORG> defining the expression "final" may usefully be referred to. <CITATION> had to consider whether an appeal lay to <ORG> against the order of <ORG> under s. 75(2) of the Provincial Insolvency Act, 1920. The said Act provided by S. 4(2) that subject to the provisions of the Act and notwithstanding anything contained in any other law for the time being in force, the decision of <ORG> under the Act was final; but under S. 75 (2), however, there was a right of appeal to <ORG> from the decision of <ORG>. The judicial Committee held that in a case where the Act crave a right to appeal to <ORG>, an appeal from the decision of <ORG> lay to <ORG> under, and subject to, the Code of Civil Procedure. It reiterated the principle that where a <ORG> is appealed to as one of the ordinary <ORG>s of the country, the ordinary rules of the Code of Civil Procedure applied. It will be notice at once that the order of <ORG> was final subject to the provisions of the said Act and under the said Act a right of appeal was given to <ORG>. The order of <ORG> in the appeal was not made, final. Therefore, <ORG> held that an appeal lay to <ORG> against the order of <ORG>. This decision, therefore, does not really help the appellant. In <NAME> v. <ORG>) the facts were as follows : Under S. 11 of the Police Act, 1890 (53) & 54 Vict. c. 45), there was an appeal to quarter Sessions as 'to the amount of a constable's pension. The duty of the quarter session was stated thus :

"that <ORG>, after inquiry into the case, may make such order in the matter as appears to the <ORG> just, which order shall be final." Lord <NAME>, L.C. construed the said section thus "Where it says, speaking of such an order, that it is to be final, I think it means there is to be an end of the business at quarter sessions...........

<ORG> again in <CITATION> .(3) construed the expression "final" and held that the expression was intended to exclude any further appeal. There, under S. 71 of the Calcutta Improvement (1) (1934) L.R. 61 I.A. 158. (2) A.C. 327, 331-332. (3) A.I.R.  P.C. 149.

Act, 1911, a limited right of appeal to <ORG> was given from an award of the <ORG> and it provided that, subject to that right only, the award should be final. Their Lordships held that the provision for finality was intended to exclude any further appeal. No further citation is called for. As we have stated, the expression "final" in S. 43 of the Act indicates that no further appeal is contemplated against the order passed on appeal against the order of the <ORG>.

To escape from this construction a larger scope is sought to be given to the expression "appeal to <ORG>". It is said that the expression "appeal" in ss. 43 and 39 of the Act means an appeal to <ORG> and not to a single Judge and that the said appeal is finally disposed of only by the final judgment of <ORG>. It is said that whatever may be the internal arrangement in disposing of that appeal, there is only one appeal till it is finally disposed of. This argument is plausible, but it has not found favour with this Court. This Court in <CITATION> (1) considered the question whether S. 39(2) of the Indian Arbitration Act, 1940, has taken away the right of appeal under the Letters Patent. Section 39(2) of the said Act reads as follows :

"No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to <ORG>."

It was argued, as it is argued before us, that the second appeal under the section referred to an appeal to a superior Court and not to appeals "inter-Court" and, therefore, s. 39(2) of the Arbitration Act did not operate to prohibit an appeal under the Letters Patent against the order of a single Judge. This Court held that the expression "second appeal" included an appeal under the Letters Patent. This decision ruled that a Letters Patent appeal is not a part of the appeal filed in <ORG> against the award of the Arbitrator, but is a fresh appeal against the order of the single Judge. This Court in <CITATION> .(2) held that the expression "Court immediately below" in Art. 133 (1) (a) of the Constitution took in a single Judge of <ORG>. There, the judg- ment of the District Judge was reversed by the single Judge of <ORG>. Against the order of the single Judge of <ORG> in appeal from that of the Subordinate Judge a letters patent appeal was preferred to a Division Bench of the High (1)  3 S.C.R. 497.

(2) [1964] 1 S.C.R. 270.

<ORG> and the said <ORG> affirmed the judgment of the single Judge. The question arose whether the single Judge was. a <ORG> immediately below the <ORG>. For the respondent it was contended that the judgment of <ORG> against which the appeal was preferred affirmed the decision of the <ORG> immediately below and that the appeal did not involve any substantial question of law and, therefore, <ORG> was not competent to grant a certificate under Art. 133(1) (a) of the Constitution. For the appellant it was urged that the appeal against the judgment of the single Judge to a <ORG> under cl. 10 of the Letters Patent was a "domestic appeal" within <ORG> and in deciding whether the decree of a <ORG> in an appeal under the Letters Patent from a decision of a single Judge exercising appellate jurisdiction affirmed the decision of the <ORG> immediately below, regard must be had to the decree of the <ORG> subordinate to <ORG>, against the decision of which appeal was preferred to <ORG>. This <ORG> came to the conclusion that the expression "<ORG> immediately below" in Art. 133 (1) (a) must mean a <ORG> from the decision of which the appeal has been filed in <ORG>, whether such a Judge was a single Judge of <ORG> or a <ORG> subject to the Superintendence of <ORG>. It will be seen that if a Letters Patent appeal was only a continuation of the appeal filed from the decree of the District Judge by a domestic arrangement, this <ORG> would have held that the judgment in the Letters Patent appeal was not a judgment of affirmation but one of reversal of the judgment of the District <ORG>. This decision, therefore, recognizes that an appeal disposed of by a single Judge of <ORG> and the appeal from the judgment of the single Judge to a <ORG> thereof are different appeals. Apart from these decisions, on principle we do not see any justification to hold that an appeal under s. 39(1) of the Act and an appeal under cl. 10 of the Letters Patent form part of a single appeal. They are in law and in fact different appeals-one given by the statute and the other by the Letters Patent. We cannot, therefore, accede to the argument advanced by the learned counsel for the appellant that the expression "appeal" in S. 39 of the Act takes in a Letters Patent appeal under s.110 of the Letters Patent. Learned counsel for the respondents further contended that s. 39 of the Act conferred a special jurisdiction on <ORG> as persona designate and therefore, the decision of the single Judge in appeal is not a "judgment" within the meaning of cl. 10 of the Letters Patent. In support of this view reliance was placed, inter alia, on <NAME> v. <NAME>) and <CITATION> (2) But, in the view we have expressed on the construction of S. 39 read with s. 43 , of the Act, it is not necessary to deal with that question in this appeal. We shall not be understood to have expressed our opinion on this question one way or other.

In the result, the appeal fails and is dismissed with costs. Appeal dismissed (1) A.I.R. 1962 Assam 71.

(2) [1959] S.C.R. 1177.


PETITIONER: MUNICIPAL CORPORATION, INDORE AND OTHERS Vs. RESPONDENT: SMT. RATNA PRABHA AND OTHERS DATE OF JUDGMENT29/10/1976 BENCH: <NAME>, P.N. BENCH: <NAME>, P.N. RAY, A.N. (CJ) BEG, M. HAMEEDULLAH CITATION: 1977 AIR 308 1977 SCR (1)1017 1976 SCC (4) 622 CITATOR INFO : D 1980 SC 541 (6) ACT: Madhya Pradesh Municipal Corporation Act 1956--Sec. 138(b)--Madhya Pradesh Accommodation Control Act 1961--Sec. 7--Must rental value under the Municipal Act follow the standard rent under Accommodation Control Act when premises let out--When used by owner. HEADNOTE: The respondents are the owner of a building known as Viram Lodge. They run a hotel in the said building. The annual gross rental value of the. building was determined at Rs. 6,600/- in 1956. It was revised to Rs. 43,405/- by the Assessment Officer in 1965. Section 138(b) of the Madhya Pradesh Municipal Corporation Act, 1956, provides that notwithstanding anything contained in any ,other law for the time being in force, the annual value of any building shall be deemed to be the gross annual rent at which such building might be reasonably at the time of assessment be expected to let from year to year at the time of the less an allowance of 10 per cent for repairs etc. The respondent challenged the valuation on the ground that the rental value of the premises could not be fixed at a rate higher than the stand- ard rent under section 7 of the Madhya Pradesh Accommoda- tion Control Act , 1961. The Municipal Commissioner negatived the respondents' contention. An appeal filed by the respondents to the Additional District Judge also failed. <ORG> however allowed the Revision filed by the respondents. Allowing the appeal by Special Leave held: 1. In the. present case the building in ques- tion was never let on rent and is being used by the owners as a hotel. [1019 A] 2. On a proper construction of section 138(b) where the standard rent of a building has been fixed under section 7 of the Accommodation Control Act, and there is nothing to show that there has been fraud or collusion that would be its reasonable letting value but where the building has never been let out the question of fixation standard rent does not arise. In that case it would be permissible to fix its reasonable rent without regard to the provi- sions of Madhya Pradesh Accommodation Control Act. This view gives proper effect to the nonobstante clause in section 138(b) . [1019 <CITATION>  3 S.C.R. 49, <CITATION>  1 S.C.R. 246, <CITATION>  2 SCR 423 and <CITATION>  1 S.C.R. 731, distinguished. JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2111 of 1969.

(Appeal by Special Leave from the Judgment and Order dated 26-9-1968 of the Madhya Pradesh High COurt in Civil Revision No. 711/66).

<NAME>, <NAME> and <NAME> for the Appel- lants.

<NAME> and <NAME> for the Respondents.

<NAME>

The Judgment of the Court was delivered by SHINGHAL, J.--This appeal by special leave is directed against the judgment of <ORG> dated September 26, 1968 setting aside the appellate order or the Second Additional District Judge, Indore, dated Octo- ber 29, 1966 and remitting the matter to the Municipal Commissioner for a fresh determination of the annual value of the building.

The building in question is known as "Viram Lodge", on Ravindra Nath Tagore Marg, Indore. It belongs to the respondent and has been used by them as a hotel. The annual gross rental value of the building was determined at Rs. 6600/in 1956. It was revised by the Assessment Officer on June 3, 1965 and was raised to Rs. 43,405.20. The respondents filed objections to the valuation, but the Municipal Commissioner fixed the annual value at Rs. 43,405.20. He held that, in view of the "non-obstante" clause in section 138(b) of the Madhya Pradesh Municipal Corporation Act, 1956, hereinafter referred to as the Act, there was no justification for the .argument that the rental value of the premises could not be fixed at a rate higher than the standard rent under section 7 of the Madhya Pradesh Accommodation Control Act, 1961. An appeal was taken to the Second Additional District Judge, but without suc- cess. The respondents then filed an application for revi- sion, which was allowed by the impugned judgment of <ORG> dated September 26, 1968. This is how the present appeal has arisen at the instance of <ORG> and its officers.

Section 138 of the Act prescribes the mode for determin- ing the annual value of any land or building for purposes of assessing it to property tax. Clause (a) of the section deals with the annual value of land, and it is not the case of the parties that it has any bearing on the controversy. Clause (b) prescribes the mode of determining the annual value of a building and reads as follows,--

"(b) the annual value of any building shall notwithstanding anything contained in any other law for the time being in force be deemed to be the gross annual rent at which such building, together with its appurtenances and any furniture that may be let for use or enjoyment therewith might reasonably at the time of assessment be expected to be let from year to year, less an allowance of ten per cent for the cost of repairs and for all other expenses necessary to maintain the building in a state to command such gross annual rent."

There are two explanations to the clause. It is nobody's case that they have any bearing on the short point in con- troversy before us. Clause (c) of the section prescribes that if the gross annual rent of a building cannot be deter- mined under clause (b), the annual value of the building shall be determined according to that clause. If is not in controversy before us that the Viram Lodge was never let on rent, and is being run as a hotel by its owners, the present respondents, so that the .question of fixing its standard rent under s. 7 of the Madhya Pradesh Accommodation Control Act, 1961, has not arisen. It has argued that, even so, the reasonable rent contemplated by s. 138(b) of the Act cannot exceed the standard rent to be fixed under the aforesaid section 7 . It has thus been 'urged that it was incumbent for the Municipal Commissioner to determine the annual value of the building on the same basis on which its standard rent was required to be fixed under section 7 . Reliance in this connection has been placed on the deci- sions of this Court in The Car oration of <CITATION> and others,(1) <CITATION> (2) <CITATION> (3) <ORG> Munici- pal Committee v. M.N. Soi and another.(4) As has been stated, clause (b) of section 138 of the Act provides that the annual value of any. building shall "notwithstanding anything contained in any other law for the time being in force" be deemed to be the gross annual rent for which the building might "reasonably at the time of the assessment be expected to be let from year to year." While therefore the requirement of the law is that the reasonable letting value should determine the annual value of the building, it has also been specifically provided that this would be so "notwithstanding anything contained in any other law for the time being in force". It appears to us that it .would be a proper interpretation of the provisions of clause (b) of section 138 of the Act to hold that in a case where the standard rent of a building has been fixed under section 7 of the Madhya Pradesh Accommodation Control Act, and there is nothing to show that there has been fraud or collusion, that would be its reasonable letting value, hit, where this is not so, and the building has never been let out and is being used in a manner where the question of fixing its standard rent does not arise, it would be permis- sible to fix its reasonable rent without regard to the provisions of the Madhya Pradesh Accommodation Control Act, 1961. This view will, in our opinion, give proper effect to the non-obstante clause in clause (b with due regard to its Other provision that the letting value should be "rea- sonable".

We have gone through the decision in <NAME> case (supra). There the premises were on rent and section 127(a) of Calcutta Municipal Corporation Act, 1923, did not con- tain a non-obstante clause. That the section provided, inter alia, was that the annual value shall be deemed to be the gross annual rent at which the land or building might at the time of assessment "reasonably be expected to let from year to year." This Court examined the significance of the word "reasonable" and held that it would be incongruous to ...

(1) [1962] 3 S.C.R. 49. (2) [1971] 1 .C.R. 248. (3) [1971] 2 S.C.R. 423. (4) [1977] 1 S.C.R. 731. 15--- 1338SC1/76 consider fixation of rent beyond the limits fixed by penal legislation as reasonable. That view was taken with refer- ence to the provisions of the Rent Control Act which pena- lised the taking of a higher rent, and also' made it irrecoverable. While, therefore, we are in agreement with the view taken in <NAME> case (supra) that it would not be reasonable to consider fixation of rent beyond the limits fixed by the Rent Control Act as reasonable, it would not be a proper interpretation of section 138(b) of 'the Act to ignore the significance of its non-obstante clause altogether. That is why we have taken the view that it would be a fair and reasonable interpretation of section 138(b) to hold that as no standard rent has been fixed so far in respect of the Viram Lodge, <ORG> was justified in adopting another suitable criterion for determining the annual value of the building. There is in fact nothing in the Act to. make it obligatory for the Commissioner to follow the provisions of the Madhya Pradesh Accommodation Control Act in spite of the non-obstante clause and to limit the annual value to any standard rent that the building might fetch under that Act. We have also gone through <CITATION> (supra). That was also a case where the premises had been let out on rent. The standard rent had also been fixed, and that was why <NAME> case (supra) was held to be applicable. So also, <CITATION> (supra) was a case where the premises.were on rent and there also <NAME> case was held to be applicable even though the standard rent had not been fixed, because it was held that there was nothing to prevent the authorities concerned from ascertaining the fair rent by keeping in view the principles which had been laid down for its determination under the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960. Section 82(2) of the Madras District Municipalities Act, which governed that case, did not contain a non-obstante clause.

Much the same was the position in <NAME> case which related to a house in New Delhi, of which rate had to be assessed under the provisions of the Punjab Municipal Act, 1911.

<ORG> did not properly appreciate the differ- ence between the wordings of section 127 of the Calcutta Municipal Corporation Act, 1923, and section 138(c) of the Act, and committed an error in thinking that this was virtu- ally similar to <NAME> case.

We find that <ORG> has taken the view that a full hearing was not given to the respondents at the time of fixing the annual value of the Viram Lodge and that the valuation was based on "no principle". Here again, <ORG> was clearly in error because we find from the judgment of the Second Additional District Judge, dated October 29, 1966, that the counsel for the respondents was given "ample opportunity" by the Municipal Commissioner to represent his case before him. He has also stated that the Assessment Officer paid due regard to all the relevant circumstances which had a bearing on the determination of the reasonable letting value of the building. Counsel for the respondents has in fact not found it worth his while to argue either that such a hearing was not given, or that all the relevant factors were not taken into consideration in determining the annual letting value of the premises. In the result, the appeal is allowed and the impugned judgment of <ORG> dated September 26, 1968, is Set aside. The appellants will however pay the costs of the respondents as stipulated in the order of this <ORG> grant- ing the special leave.

P.H.P. Appeal al- lowed.


PETITIONER: STATE OF MADRAS Vs. RESPONDENT: M/S. SWASTIK TOBACCO FACTORY, VEDARANYAM DATE OF JUDGMENT: 14/12/1965 BENCH: <NAME>, K. BENCH: <NAME>, K. SHAH, J.C. SIKRI, S.M. CITATION: 1966 AIR 1000 1966 SCR (3) 79 CITATOR INFO : RF 1977 SC 879 (27) R 1980 SC 169 (12) R 1980 SC1227 (6) RF 1987 SC1885 (8) ACT: Madras General Sales Tax (Turnover and Assessment) Rules 1939, r. 5 (1) (i) Excise duty paid on raw tobacco-Raw tobacco processed and sold as chewing tobacco-Excise duty whether to be deducted from turnover of chewing tobacco under r. 5(1)(i). HEADNOTE: The respondent factory used to purchase raw tobacco and after processing it, sell it as chewing tobacco. Excise duty was paid by the factory in respect of raw tobacco purchased by it. In sales tax proceedings the factory contended that the excise duty so paid to <ORG> must be deducted to arrive at the net turnover under r. 5(1)i) of the Madras General Sales Tax (Turnover and Assessment) Rules, 1939. The assessing officer as well as the Appellate Assistant Commissioner rejected the contention but it was accepted by the <ORG>. The revision filed by the. <ORG> in <ORG> was dismissed, whereupon the <ORG> appealed to this Court by special leave. It was contended on behalf of the appellant that the raw tobacco was converted by a manufacturing process into chewing tobacco, a different commodity and that, therefore, under r. 5(1)(i) of the Rules, as excise duty was paid only in respect of raw tobacco and not chewing tobacco the said duty was not deductible from the turnover of the assesses. HELD : 'Me object of the concession in r. 5(1)(i) is presumably to avoid payment of tax on tax in respect of the same goods. This concession would have no relevance if the goods subjected to excise duty were different from the goods sold. Tobacco when converted by a process of manufacture into chewing tobacco becomes a different marketable product. Duty on raw tobacco cannot therefore be said to be paid in respect of the manufactured product. [82 B-D] The expression "in respect of the goods" in r. 5(1)(i) means only on the goods", and cannot take in the raw material out of which the goods were made. [83 E] <ORG> v. Court & Co. [1963] 2 All. E.R. 722 and <NAME> v. <ORG>, L.R. [1950] A.C. 508, considered. The excise duty paid by the respondent was only on the raw tobacco and not on the goods sold by it, and therefore, the said duty could not be deducted from its turnover under r. 5(1) (i). [83 E-F] JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 90 andand 91 of 1965.

Appeals by special leave from the judgment and order dated September 4, 1963 of <ORG> in Tax Cases Nos. 120 and 121 of 1963.

<NAME> and <NAME>, for the appel- lant.

<NAME> and <NAME> for the respondent. The Judgment of the Court was delivered by <NAME>, J. These appeals, by special leave, raise the question of the true construction of the provisions of r. 5(1) (i) of the Madras General Sales Tax (Turnover and Assessment) Rules, 1939, hereinafter referred to as the Rules.

The facts are not in dispute and they may be briefly stated. The respondent, <ORG>, is a dealer in tobacco. It purchased raw tobacco; by processing it in a prescribed manner, converted it into chewing tobacco and sold it as such in small paper packets. The said process has been described by <ORG> of <ORG> in <CITATION> (1) thus :

"Taking, however, the cumulative effect of the various processes to which the assessee subjected the tobacco before he sold it is clear that what was eventually sold by the assessee was a manufactured product, manufactured from the tobacco that the assesses had purchased. Soaking in jaggery water is not the only process to be considered. The addition of flavouring essences and shredding of the tobacco should establish that what the assesses sold was a product substantially different from what he had purchased."

for the purpose of these appeals, it was not disputed that the respondent purchased raw tobacco, converted it by a manufacturing process into chewing tobacco and sold it in small paper packets. The respondent paid excise duty in respect of the raw tobacco purchased by it. For the assessment years 1955-56 and 1956-57, the Assistant-cum- Deputy Commercial Tax Officer assessed the respondent to sales tax on the turnover of Rs. 10,67,923-10-9 and Rs. 7,71,661-11-0 respectively. The respondent, claimed that the excise duty paid by it to the <ORG>' Government in respect of the raw tobacco should be deducted from the turnover ascertained by the said Officer. But his conten- tion was rejected. On appeal, the order of the said Officer was confirmed by the Appellate Assistant Commissioner of Commercial Taxes. On a further appeal to <ORG>, the assessee, in addition to the question of deduction, raised (1) (1961) 12 S.T.C. 126,132.

an additional ground that the entire turnover of the sales on chewing tobacco was not liable to be assessed. The <ORG> set aside the order of the Appellate Assistant Commissioner. The <ORG> carried the matter in two revisions to <ORG>. A Division Bench of the said <ORG> agreed with the view expressed by the <ORG> and dismissed the revisions. Hence the present appeals. Mr. <NAME>, learned counsel for the <ORG>, argued that the raw tobacco was converted by a manufacturing process into, chewing tobacco, a different commodity and that, therefore, under r. 5(1) of the Rules, as excise duty was paid only in respect of the raw tobacco and not chewing tobacco, the said duty was not deductible from the turnover of the assessee. He did not contest the correctness of the decision of the <ORG> on the question of the taxability of the chewing tobacco under S. 5(vii) of the Act. Mr. <NAME>, learned counsel for the respondent, contended that the said rule was couched in a comprehensive language so as to take in excise duty paid on raw tobacco converted by a manufacturing process into chewing tobacco. The relevant rule reads thus :

"Rule 5. (1) The tax or taxes under section 3 or 5 or 5A or the notification or notifications under section 6(1) shall be levied on the net turnover of the dealers. In determining the net turnover the amounts specified in the following clauses shall, subject to the condition specified therein, be deducted from the gross turnover of a dealer :

(i) the excise duty, if any, paid by the dealer to <ORG> in respect of the goods sold by him;

Both the advocates argued, on the basis of the factual position,. that packets of chewing tobacco were goods different from tobacco from which the said goods were manufactured. While the learned counsel for the <ORG> laid emphasis on the words "goods sold by him", the learned counsel for the respondent relied upon the expression "in respect of" preceding the said words. If, instead of the expression "in respect of', the word "on" were there, the intention of the rule would be manifest and the answer to the question raised would be obvious. The excise duty paid by the respondent was only on the raw tobacco and not on the goods' sold by it and, therefore, the said duty was not deductible thereunder. So far there is no dispute. But it was said that the expression "in respect of" made all the difference. The words "in respect of", it was said, meant "attributable" and, therefore, the argument proceeded, the excise duty paid on the tobacco, though it was not paid on the goods sold by the respondent, was attributable to the said goods sold. The object of the concession is presumably to avoid payment of tax on tax in respect of the same goods. If excise duty was paid by a dealer on certain goods, it would be deducted from the gross turnover of the dealer in regard to the said goods, as otherwise, in effect, sales-tax would have to be paid on the amount paid towards excise duty. This concession could have no relevance if the goods subjected to excise duty were different from the goods sold. Raw tobacco, when converted by a process of manufacture into chewing tobacco, be comes a different marketable product. There will be no comparison between the raw tobacco and the chewing tobacco in the matter of demand or even price. Duty on raw tobacco may have some effect on the cost of the manu- factured product, but it cannot possibly be said that the said duty is paid in respect of the manufactured product. Rule 5(1)(i) of the Rules, therefore, permits deduction from the gross turnover of the dealer only the excise duty paid by him in respect of the same goods sold by him. Learned counsel for the :respondent cited some English deci- sions in support of his contention that the expression "in respect of the goods" was very wide and that it took in the raw-material out of which the goods were made. <ORG> in <ORG> v. <ORG>), in the context of payment of estate duty, con- strued the words "in respect of" in S. 5(2) of the Finance Act, 1894 (57 & 58 Vict. c. 30) and observed that the phrase denoted some imprecise kind of nexus between the property and the estate duty. <ORG> in <NAME> v. <ORG> (2) in construing the provisions of S. 2 , sub-s. (3) of Increase of Rent and Mortgage Interest (Restrictions) Act, 1920 (10 & 11 Geo. 5, c. 17), held that the expression "in respect of' must be read as equivalent to "attributable". <ORG> in <CITATION> (1) observed that the said words could mean more than "consisting of" or "namely". It is not necessary to refer to other decisions. It may be accepted that the said expression received a wide interpretation, (1)  2 All. E.R. 722, 732.

(3) [1962] 3 All. E.R. 294.

(2) L.R. [1950] A.C. 508.

having regard to the object of the provisions and the setting in which the said words appeared. On the other hand, Indian tax laws use the expression "in respect of" as synonymous with the expression "on" : see Art. 288 of the Constitution of India; s. 3 of the Indian Income-tax Act, 1922; ss. 3(2) and 3(5) , Second Proviso, of the Madras General Sales Tax Act, 1939; s. 3(1A) of the Central Excise and Salt Act , 1944; and ss. 9 of the Kerala Sales Tax Act. We should not be understood to have construed the said provisions, but only have referred to their to state the legislative practice. Consistent with the said practice, r. 5(1)(i) of the Rules uses the same expression. When the said rule says "excise duty paid in respect of the goods", the excise duty referred to is the excise duty paid under s. 3(1) , read with the Schedule, of the Central Excises and Salt Act , 1944 . Under the, said section, read with the Schedule, excise duty is levied on the goods described in the Schedule. Therefore, when r. 5(1)(i) of the Rules refers to the duty paid in respect of the goods to <ORG>, it necessarily refers to the duty paid on the goods mentioned in the Schedule. As the duty exempted from the gross turnover is the duty so paid under the Central Act , read with the Schedule, the expression "in respect of" in the context can only mean excise duty paid on goods. In our view, the expression "in respect of the goods" in r. 5(1)(i) of the Rules means only "on the goods". Even if the word "attributable" is substituted for the words "in respect of", the result win not be different, for the duty paid shall be attributable to the goods. If it was paid on the raw material it can be attributable only to the raw material and not to the goods. We, therefore, hold that only excise duty paid on the goods sold by the assessee is deductible from the gross turnover under r. 5(1)(i) of the Rules.

We cannot, therefore, agree with the construction of r. 5(1)(i) of the Rules accepted by <ORG>. No other question was raised before us. In the result, we modify the order of <ORG> accordingly. In the circumstances, we direct the parties to bear their respective costs.

Order modified.


JUDGMENT

1. Special leave granted.

2. The subject matter of challenge in this Special Leave Petition is the order of 2nd August, 1985 whereby the appellant was ordered to retire compulsorily under the provisions of 56(J) of the Fundamental Rules as in the opinion of <ORG> the appellant has lost his effectiveness as well as utility to the <ORG> and in the public interest he is required to be prematurely retired.

3. Reliance has been placed by the Ld. A.S.G. on the A.C.Rs. as well as on the report of <ORG>. We have gone through the A.C.Rs. for the period 1980-81 where it has been stated by the Reporting Officer in all the columns "good, nothing adverse to my knowledge". Then it has been recorded that he is a man of above average, he can improve his performance, his overall performance during the last year is categorised as "good" for the year 1981-82. The report is regarding general assessment "good " and a capable Officer for the year 1981-82. It has been remarked by Mr. <NAME>, Commr. of Income-tax "an average officer" in the A.C.R. for the period for 1982-83. Then for the period 1983-84 against all the columns the remarks is "good". Regarding integrity it was remarked "nothing came to knowledge from which adverse inference can be drawn. The officer was holding Salary Circle prior to his assignment. He himself left Column 12 blank "I appreciate that he is honest to admit that he has not done any outstanding work. Quality of assessment is average. Considering his experience and capability I recommend his posting for Salary Circle etc." The report for the period 31-3-85 is as follows :

The I.T.O. has acceded (exceeded) all his targets or met (sic) him. He has good investigating capabilities and did some good 133A cases also during the year.

The Inspecting Assistant Commr. also remarked as follows :

He is intelligent systematic officer. He ran his station well and smoothly. He knows his job and works sincerely.

4. <ORG> considered the cases of several Income-tax Officers including the petitioner Mr. <NAME> and it has been observed that the rating for the year 1982-83 is "average". On the basis of his A.C.R. <ORG> decided that this officer has lost effectiveness and has also lost utility to the <ORG>. The Committee, therefore, decided that he is not fit for any retention in the <ORG> and recommended his case under F.R. 56(J).

5. We have heard Ld. A.S.G. and we have very carefully considered the A.C.Rs. as well as the order of <ORG>, we are not satisfied that the appellant has lost his utility in service and has become a deadwood and so in public interest he is required to be compulsorily retired before the age of super annuation which is on 4-1-89.

6. In that view of the matter, we for the sake of fair play and justice set aside the order of compulsory retirement dated 2nd August, 1985 and direct the authorities concerned to take immediate steps for payment of the emoluments including salary and allowances as he is entitled to under the Rules for the period from the date of compulsory retirement i.e. 2nd August, 1985 till his attaining the age of super annuation on 4-1-89. We accordingly allow the appeal. The authorities will reconsider his retiral benefits on the basis of this order and will pay him accordingly. There will be no order as to costs.


PETITIONER: RATILAL B. SONI & ORS. Vs. RESPONDENT: STATE OF GUJARAT & ORS. DATE OF JUDGMENT16/02/1990 BENCH: KULDIP SINGH (J) BENCH: KULDIP SINGH (J) RAMASWAMI, V. (J) II CITATION: 1990 AIR 1132 1990 SCR (1) 414 1990 SCC Supl. 243 JT 1990 (1) 229 1990 SCALE (1)228 ACT: Gujarat Panchayats Act, 1961: Section 206A(2)--Panchay- at Service--Employees--Deputation to <ORG> Service--Does not confer a right to be absorbed on the deputation-post. HEADNOTE: The appellants belonging to <ORG> were allocated to <ORG> when the Gujarat Panchayats Act, 1961 came into force and their allocation became final under section 206A(2) of the Act. Thereafter they went on deputation as Circle Inspectors in the <ORG> service but were later reverted back to their parent cadre in <ORG>. The appellants challenged their reversion before <ORG> which dismissed the petition. Hence this appeal. Dismissing the appeal, this Court, HELD: 1. It is clear from section 206A(2) of the Gujarat Panchayats Act, 1961 that a Panchayat servant who is not reallocated within a period of four years from the coming into force of the Act would be deemed to be finally allocat- ed to <ORG>. <ORG> has held that the appellants have not been able to show that they made any such options before the specified date. Even if the appel- lant gave some sort of option the same having not been accepted before the expiry of specified date, the appellants stood finally allocated to <ORG>. [416B-C] 2. The appellants being on deputation they could be reverted to their parent cadre at any time and they do not get any right to be absorbed on the deputation-post. There is no infirmity In the judgment of <ORG>. [416D] JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1012 of 1987.

From the Judgment and Order dated 24.9.86 of <ORG> in B.I-.P.A. No. 259 of 1986.

<NAME>, <NAME> and Ms. <NAME> for the Appel- lants.

<NAME> and <NAME> for the Respondents. The Judgment of the Court was delivered by <NAME>, J. The appellants are in the cadre of Talatiscum-Mantries (Patwaries) in <ORG> of the <ORG> of Gujarat. In the year 1982/83 they were sent on deputation to the higher cadre of Circle Inspectors in the <ORG> service. The question for consideration is whether in the facts of this case the appellants have a right to be absorbed in the cadre of Circle Inspectors. The appellants were originally appointed as Talatis in <ORG> of the <ORG> of Gujarat. Under the Gujarat <ORG> Act (hereinafter called 'the Act') which came into force with effect from April 1, 1963, <ORG> was constituted and under the Act all the posts of Talatis along with the incumbents stood transferred to <ORG>. On that date there was a cadre of Circle Inspectors in <ORG> which was bifurcated and 50% of the posts continued in <ORG> and the remain- ing 50% were transferred to <ORG>. The appellants were sent on deputation as Circle Inspectors in the <ORG> Cadre. In January 1986 qualified officials became available for promotion to the post of Circle Inspectors in the <ORG> cadre and as such the appellants were reverted to their parent cadre of Talatis in the <ORG> service. The appellants challenged the reversion by way of writ petition in <ORG> primarily on the ground that their options for absorption in <ORG> were pending with <ORG> which the <ORG> was bound to decide in their favour. <ORG> dismissed the writ petition holding that there was nothing on the record to show that the appellants gave any option to be absorbed in the <ORG> cadre. <ORG> also found that they, being on deputation, have no legal right to be absorbed in <ORG>. This appeal by special leave is against the judgment of <ORG>.

We have heard learned counsel for the parties. The <ORG> by a circular dated February 8, 1965 asked the <NAME> among others to give their options as to whether they want to remain in <ORG> or to be re-allocated to the <ORG> Service. Section 206A(2) of the Act is as under:

<NAME>

"Any officer or servant who is not reallocated under sub-section (1) and continues in <ORG> immediately before the expiry of the aforesaid period of four years, shall on such expiry, be deemed to be finally allocated to <ORG>."

It is clear from the above quoted provision that a <ORG> servant who is not reallocated within a period of four years from. April 1, 1963 would be deemed to be finally allocated to the <ORG> Service. <ORG> has held that the appellants have not been able to show that they made any such options before March 31, 1967. Even if it is assumed that the appellants gave some sort of option the same having not been accepted before March 31, 1967, the appellants stood finally allocated to the <ORG> Service. The appellants being on deputation they could be revert- ed to their parent cadre at any time and they do not get any right to be absorbed on the deputation-post. We see no infirmity in the judgment of <ORG> and as such we dismiss the appeal. There shall be no order as to costs.

T.N.A. Appeal dismissed. ?417


PETITIONER: MAJOR YOGENDERA NARAIN YADAV ETC. Vs. RESPONDENT: <NAME> & ORS. ETC. DATE OF JUDGMENT: 10/12/1996 BENCH: K. RAMASWAMY, G.T. NANAVATI ACT: HEADNOTE: JUDGMENT:

O R D E R Leave granted in the special leave petitions. These appeals have a chequered history. But it is not necessary to burden the judgment with minute details of the entire history of the case Suffice it to state that Major <NAME>, the appellant in the main appeal, was a short Commissioned Officer in the <ORG> as Engineer and was appointed on April 15, 1963 and was released from the <ORG> on October 25, 1970. Pursuant to an advertisement for appointment to a post of a temporary Asstt. Engineer made in 1973 he was selected by <ORG> and was appointed to the post on July 29, 1974. <ORG> had issued Circular dated June 21, 1969 in which it was stated that 30% of the posts of permanent as well as temporary Engineers were available to the demobilised <ORG> officers and the date of entry into the State service would be the date of their attaining the age of eligibility for appointment in the military service or actual date of entry, whichever is later. Pursuant thereto, the appellant made a request by a memorandum to the <ORG> to consider his case for permanent post available to the demobilised officers and appoint him to that post with effect from the date on which he joined the <ORG> as Commissioned Officer. Request was acceded to and an order came to be passed by proceedings dated December 6, 1977 giving him the date of his permanent appointment for the purpose of seniority in terms of the <ORG> Circular dated June 21, 1969 with effect from April 15, 1963. Thus be became a permanent Assistant Engineer in Bihar <ORG>, which was formerly known as <ORG>.

The question arose: whether he would be senior to the respondents? After giving him the notional date, he was promoted to the post of Executive Engineer. It appears that the respondents filed a writ petition in <ORG> which is the subject matter of C.A. No.1394/91. There was difference of opinion between to learned judges and consequently reference to third learned Judge was made. It was held per majority that the appointment of the appellant as Executive Engineer without considering the claims of the respondents was not correct in law. Pending appeal, the Court had given direction to the Government by order dated April 1, 1991 thus:

"the <ORG> to be constituted and to take the decision as directed by <ORG> without delay. The decision being taken by the <ORG> it will be implemented subject to the result of the Appeal. Till the decision is taken by the <ORG> the appellant will not be reverted."

From the record, it is clear that <ORG> was constituted but his case was negatived. Consequently, he filed a writ petition in <ORG>, viz., CWOC No.1563/92 which went against the appellant. When SLP bearing No.6794/94 was filed. this Court directed that a fresh <ORG> be constituted and in furtherance thereof the <ORG> was constituted and the claims of all the respective persons were considered. The appellant was found eligible for the promotion as Executive Engineer and thereafter as a Superintending Engineer and then as a chief Engineer and ultimately Engineer and then as a chief Engineer ad ultimately as Engineer-in-Chief by proceedings dated May 16, 1994 and he was accordingly promoted. this promotion gave rise to filing of further writ petitions in <ORG> which are the subject matters in other appeals. <ORG> has held that since the respondents were already working as on the date when the appellant had entered the service as Executive Engineers though as temporary Assistant Engineers, their seniority has to be reckoned from the date of their initial appointment. Thereby they became senior to the appellant. As a result, he cannot be promoted as against them. It appears that pursuant to the directions issued in those writ petitions another <ORG> was constituted and promotions were given to the respondents. When it was sought to get those promotions stayed and to continue him is his past service, all the matters were directed to be posted together. Thus all the appeals have come up together.

<NAME>, learned counsel appearing for the appellant, with a neat presentation of the facts and analysis, contends that once the appellant has become permanent <ORG>. Engineer w.e.f. April 15, 1963 and the respondents having been, admittedly, recruited as temporary <ORG>. Engineers, unless they were appointed substantively to the post of permanent <ORG> Engineers, they cannot steal a march over the appellant; as a consequence, he became senior to them. He also contends that by proceedings dated 17.2.1969 the claims of all the persons who were temporarily working as <ORG>. Engineers were considered; one <NAME> of 1964 batch, who next below him was regularised as permanent <ORG>. Engineer w.e.f.February 13, 1964 and <NAME>, one of the respondents was regularised w.e.f. December 29, 1966 and, admittedly, the other respondents were regularised as permanent <ORG>. Engineers in the years 1973 and 1976 and thereby they are far junior to the appellant in the post of <ORG>. Engineer. Without considering appellants case, they were confirmed as Executive Engineers in 1985. Rule 17 read with Rule 24 of the Bihar Engineering Class-I Service Rules, 1939 (for short, the 'Rules') provides for the procedure for promotion. Merit and seniority is to be considered for promotion to the as Executive Engineer and merit alone without any consideration of seniority, would be considered for the of supdt. Engineer and Chief Engineer etc. The appellant who had reports of excellent record was considered by the <ORG> on his own merit and was found to be eligible for promotion as against the respondents. Therefore, he was duly prompted. The high Court has not considered the case of the appellant in the proper perspective.

<NAME> and <NAME>, learned senior counsel for the respondents, contend that the respondents were regularly selected, though to the temporary posts by the <ORG> and subsequently they were regularised to the permanent posts. Their initial a appointments on temporary posts and subsequent regularisation is a fortuitous circumstance, viz., availability of permanent posts; but they having been recruited and selected by the <ORG> on regular basis, their appointment to the posts as permanent Assistant Engineers would date back to their earlier regular selection. though they were promoted on temporary basis as Executive Engineers, they were confirmed thereafter in the post of Executive Engineers and thereby, the respondents are far senior to the appellants in both the cadres. Even before the appellant's entering into the service they became Executive Engineers in the post and thereby the non- consideration of their claims was bad in law. <NAME> placed reliance on Rule 27 of the Rules stating that when the respondents were appointed substantively to the posts of Executive Engineer, the appellant would not get any seniority over the respondents. In support thereof he placed reliance on the judgments of this court in <CITATION> . [] and <CITATION> []. <NAME> further contends that the appellant had not worked as an Executive Engineer at all and, therefor, he cannot be considered for the post of Supdt. Engineer straight from the post of Asstt. Engineer and, therefore, the view of <ORG> is perfectly consistent with the Rules and the law laid down by this Court.

In view of the respective contentions, the question that arises for consideration is: whether the appellant is senior to the respondents in the cadre as Asstt. Engineer and not notionally, as held by one of the learned Judges of <ORG>, in the post of Executive Engineer for the purpose of promotion to the post of Supdt. Engineer in the service? It is seen that Class II Service, namely, <ORG> shall be recruited - (i) by direct recruitment in accordance with the Rules in Part II, or (ii) by the promotion or transfer of officers already in <ORG> service, permanent or temporary, in accordance with the Rules in part III. Thereby, it is clear that the posts of <ORG> in Class II consist of permanent and temporary Engineers. Admittedly, the permanent and temporary posts are treated as distinct and separate posts, though in the same cadre. The Rules envisage substantive appointment to a post as is evident under Rule 27 of the Rules. Rule 27 reads as under:

"27, Seniority. - Seniority in the service shall be determined by the date of the officer's substantive appointment to the Service irrespective of the pay drawn by him provided that a member of the service who holds a superior to an officer who holds an inferior post substantively. The seniority of officers appointed on the same date shall be determined according to the order of merit in which they were placed at the time of their selection for appointment."

It would thus be clear that the appointment to a temporary post, though in the cadre, is not a substantive appointment as contemplated by the Rule. Substantive appointment to the permanent post gives right to a substantive status in the post on permanent basis. It is seen that the <ORG> had issued the orders, obviously for that reason, on February 17, 1969 and <NAME>, who was recruited and was last among the selectees of 1964 was given confirmation from February 13, 1964; <NAME> was given confirmation w.e.f. December 29, 1966. Thus they became the members of the service in a substantive capacity with respect to the above dates. It is also not in dispute that other respondents also were confirmed in the year 1973 on permanent posts. Though Major <NAME> was recruited in 1973 and was appointed in 1974, by virtue of <ORG> circular, his seniority dated back of April 15, 1963 as permanent Asstt. Engineer. Thus they became far junior to the appellant as permanent Asstt. Engineers. It is seen that Rule 17 of the Rules prescribes procedure for promotion to the post of Executive Engineer with a condition that merit should be the consideration and seniority also may be taken into consideration. It reads thus:

"17. - Procedure for recruitment by promotion. - (a) When the Governor has decided that any vacancy or vacancies in the service shall be filled by promotion, the Chief Engineer will nominate for promotion officers from the Bihar Engineering service, Class II. The nomination will be made by seniority and merit combined but more important will be attached to merit. The officers nominated by the Chief Engineer shall be arranged in order of preference and the number should ordinarily be 50 per cent in excess of the number of vacancies to be filled."

Thus due weight is given only to merit and where merit and ability are approximately equal. Seniority also could be considered. It is also not in dispute that the appellant being senior to the respondents by more than 10 years the question is: whether he could be considered for promotion as Executive Engineer? It is not in dispute that the appellant while in the <ORG>, was a Class I officer and had held three ranks, namely, Lt. Colonel, Captain and Major. All the three posts were Class I posts equivalent to Executive Engineer Class I post. It is also not in dispute that one of the learned Judges, in the circumstances, and in our view quite rightly, has given direction to consider him notionally as if he is eligible to be considered as an Executive Engineer for promotion to the post of Supdt. Engineer. It is also not in dispute that throughout his career he earned "excellent" confidential reports. Merit under Rule 17 alone is the consideration for promotion as Supdt. Engineer and upwards. Under these circumstances, the <ORG> has considered, as per the directions referred to earlier, the relative merits of all the persons and considered the appellant more meritorious and accordingly directed the <ORG> to give promotion in him and in furtherance thereof promotion was given. In the same proceedings further consideration was made for promotion to the post of Supdt. Engineer, Chief Engineer and Engineer-in-Chief. Rule 24 of the Rules speaks that promotion to the post of Supdt. Engineer and the Chief Engineer "shall be made by selection and seniority alone shall confer no claim". Thus it could be seen that promotion should be only on merit. The appellant having been found more meritorious than others, obviously the <ORG> had considered and directed him to be promoted as Supdt. Engineer, Chief Engineer and thereafter as Engineer-in- Chief. Thus, his promotion to the above posts is consistent with the Rules and according to law.

It is true that the respondents entered into service much earlier to the entry into the service by the appellant. That is obvious. But the question is: whether the respondents who entered service later than the appellant can deny him the seniority? But for the Circular of the Government of Bihar, giving the benefit of past service as a demobilised military officer, obviously the appellant has no right to claim seniority over them. The Government order giving such a benefit to the ex-servicemen, when challenged, was upheld and thereafter in was not challenged in this Court, It cannot be challenged since in several cases the policy has been upheld by this court for the reason that the persons like the appellant rendered service to the country at the time when their service was needed by the nation to defend it from foreign aggression. Further though the appellant was initially appointed to a temporary post, admittedly, permanent post was available to the demobilisd officers as Asstt. Engineer. His representation to consider his case for fitment into the permanent post was acceded to and the Government had passed that order and that order also had become final. Thus the appellant became senior to the respondents as permanent Asstt. Engineer much earlier to the respondents'.

The ratio in Direct Recruit Class II Engineers' case (supra) has no application to the facts in this case. Therein para 13 and proposition A and B In paragraph 47 have to be read in the light of the fact therein. Though the respondents were regularly recruited as temporary Asstt. Engineer in accordance with the Rules, until they became members of the service in a substantive capacity, they had not become members of Class II service. As seen they became members of Class II service in 1966, 1973 and onwards. Under those circumstances, though they were appointed on regular basis by selection by <ORG>, they cannot steal a march over the appellant to claim seniority. Rule 27 amplifies the legal position. In this regard, this Court has considered a case similarly arising under the Medical services of the State of Bihar in Dr. (Capt.) <CITATION> . []. Therein also, the appellant was a demobilised <ORG> officer and he claimed seniority pursuant to the above circular of the <ORG>. When the inter-se seniority was to be considered, it was stated in para 3 thus:

"As a consequence of the above circular, on appointment to the post and on completion of the probation for a period of two years, the candidate would be confirmed in the cadre as Civil Assistant Surgeon in <ORG>. It is settled law that on completion of the satisfactory probation, his confirmation would date back to his initial appointment. Admittedly, he was regularly appointed on 6.9.1966. Consequently, he was regularly appointed as Civil Assistant Surgeon w.e.f. 6.9.1966."

Thus it was held that the seniority would be from the date of the entry into the service on a substantive appointment. Though the respondents were senior in temporary posts or in temporary promotions as Executive Engineers their status remained as temporary until they were confirmed. Before their confirmation as Executive Engineers, the case of the appellant, a senior permanent Asstt. Engineer was not considered. So that confirmation was bad in law. Though for purposes other than seniority, their temporary service would be counted, for the purpose of seniority only confirmation as permanent Asstt. Engineers would be the criteria. The ratio in the above case applies to the facts in this case. Though the respondents are entitled to other benefits by virtue of their temporary appointment, for the purpose of inter se seniority their seniority would be considered only from the date of entry into the service as permanent Asstt. Engineers. Since they entered into service much later to the appellant, they cannot claim any seniority over the appellant. Thus considered, we hold that the view of <ORG> that the appellant is not entitled to seniority and other benefits is clearly bad in law.

It is contended by <NAME> that his client has already retired from service and pursuant to the directions, though now upset, by this Court, he was considered and promoted and, therefore, whatever benefits that were given to him may be retained. We cannot give any direction as contended for. They were subject to the result of these appeals. However, it would be open to his client to make a representation and it is for the <ORG> to consider one decide accordingly.

The appeals are accordingly allowed. All the writ petitions filed by the respondents stand dismissed. No costs.


JUDGMENT <NAME>, J.

1. This is an appeal from a decree of <ORG>, reversing the decree of <NAME> in a suit tried before him under the ordinary original jurisdiction of the <ORG>.

2. The suit was brought to enforce a forfeiture for an alleged breach of a covenant against assignment contained in a lease for a term of sixty-one years of premises in Halliday Street, Calcutta, made on August 23, 1910. On May 7, 1923, the first and second defendants, who are the owners of the leasehold interest, executed a mortgage by way of sub-lease of the leasehold premises, sub-letting them for the unexpired residue of the term, and on January 25, 1924, the plaintiffs, who are the representatives of the original lessor, instituted the present suit to enforce a forfeiture.

3. Both the Courts below held, following the English decisions, that an absolute demise by sub-lease for the unexpired residue of the term would operate as an assignment of the term and be a breach of a covenant against assignment, but the trial Judge held that, under the terms of the mortgage of May 7, 1923, there was not such an absolute demise, whereas the Appellate Bench held that there was, and consequently that the plaintiffs were entitled to enforce the forfeiture. They accordingly allowed the appeal and gave the plaintiffs a decree.

4. Had the usual practice in England been followed of creating a mortgage of this kind by granting a sub-lease for a few days less than the unexpired residue of the term, the lessees as sublessors would not have parted with their reversion, and no question of assignment could have arisen.

5. The question having arisen in India, it has, of course, to be decided in accordance with the law, not of England, but of India; it does not, however, seem to have occurred to anyone in the <ORG> below to see, in the first place, before resorting to English decisions, whether under the law of landlord and tenant in India a sub-lease by a lessee for the unexpired residue of the term operates as an assignment of the term. That law is to be found in the Transfer of Property Act , 1882, which has now been in force for nearly half a century. Though founded on English law, and drafted in the first instance by eminent lawyers in England, it has only applied the English law in so far as it was considered applicable to India. It is not surprising to find that the sale, arising out of the special conditions of land tenure in England, that a conveyance to operate as a lease must reserve a reversion to the lessor finds no place in the Act. In India a lessor is expressly empowered to grant a lease in perpetuity, and is not obliged for that purpose, as in England, to grant a lease for lives, or for a term, with a covenant for perpetual renewal; and, similarly, a lessee as sub-lessor can create a sub-lease for the unexpired residue of the term with the same incidents as any other sub-lease.

6. Leases in perpetuity are expressly included in the definition of " lease " in Section 105 of the Transfer of Property Act:-

A lease of immoveable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on, specified occasions to the transferor by the transferee, who accepts the transfer on such terms.

The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent.

7. The provision in Section 108 (j) that, in the absence of a contract to the contrary, a lessee may grant a sub-lease for the unexpired residue of the term in the same way as a sub-lease for any shorter term is equally clear :-

(j) The lessee may transfer absolutely of by way of mortgage or sub-lease the whole or any part of his interest in the property, and any transferee of such interest or part may again transfer it. The lessee shall not, by reason only of such transfer, cease to be subject to any of the liabilities attaching to the lease.

8. There is therefore no ground for the contention that in India a sub-lease for the unexpired residue of the term operates otherwise than as a sub-lease.

9. It only remains to be considered whether in this lease there is any contract to the contrary. The fifth and sixth covenants of the lessees with the lessor are as follows:-

Fifth,-That the said lessees shall he at liberty or shall have the full power and authority without having recourse to previously securing to that effect the consent of the said lessor written or verbal to underlet the said demised land and the buildings, structures, sheds, godowns, stables or any portion thereof to be so erected and built by them as aforesaid.

Sixth.--The said lessees shall have no power save amongst themselves as Hereinafter mentioned to assign, transfer or in any way to alienate their right, title and interest upon the demised land and the buildings so to be erected by ' them thereon as aforesaid created by virtue of these presents. Provided nevertheless that neither of the said lessees shall be entitled to exercise the right of transfer or assignment among themselves as is hereinbefore reserved until a competent engineer to be approved by the lessor certifies that the construction of the buildings so to be erected on the demised lands as- aforesaid is completed at a cost of not less than ten thousand rupees as is hereinbefore provided.

10. The covenant against assignment, in their Lordships' opinion, is clearly subject to the express power to underlet. All that the lessees have done in this case is to underlet, and no question of forfeiture arises.

11. This disposes of the appeal, and their Lordships are not called upon to express any opinion on the question as to which the Courts below differed, or on the contention raised for the first time before their Lordships by Mr. <NAME>, that a covenant, expressed as here, that the lessees " shall have no power" to assign has merely the effect of rendering such assignments void, and cannot occasion a breach by the lessees " of the covenants, conditions, agreements herein contained and on their part to be kept observed and performed according to the true intent and meaning of these presents " so as to involve a forfeiture.

12. In the result their Lordships will humbly advise His Majesty that the appeal be allowed and the suit dismissed with costs throughout.


PETITIONER: THE STATE OF HARYANA & ORS. Vs. RESPONDENT: RAM KUMAR MANN DATE OF JUDGMENT: 20/02/1997 BENCH: K. RAMASWAMY, S. SAGHIR AHMAD ACT: HEADNOTE: JUDGMENT:

O R D E R This appeal by special leave arises from the judgment of <ORG> of <ORG>, made on 10.8.1984 in CWP No. 1154/84.

The admitted facts are the respondent, while working as a Small Pox Supervisor in <ORG>, had tendered his resignation on April 23, 1982 to contest the election as a Member of <ORG>. His resignation was accepted on May 18, 1982. He contested the election but was defeated. Thereafter, he filed an application on May 21, 1982 withdrawing his resignation. That was dismissed. Consequently, the respondent filed the aforesaid writ petition in <ORG>. <ORG> observed that since three similarly situated persons had been given the same relief. Article 14 would apply only when invidious discrimination is meted out to equals and similarly circumstanced without any rational basis or relationship in that behalf. The respondent has no right, whatsoever and cannot be given the relief wrongly given to them, i.e., benefit of withdrawal of resignation. <ORG> was wholly wrong in reaching the conclusion that there was invidious discrimination. If we cannot allow a wrong to perpetrate, an employee, after committing misappropriation of money, is dismissed from service and subsequently that order is withdrawn and he is reinstated into the service. Can a similar circumstanced person claim equality under Section 14 for reinstatement? Answer is obviously `No'. In a converse case, in the first instance, one may be wrong but the wrong order cannot be the foundation for claiming equality for enforcement of the same order. As stated earlier for enforcement of the same order. As stated earlier, his right must be founded upon enforceable right to entitle lion to the equality treatment for enforcement thereof. A wrong decision by the Government does not give a right decision by the Government does not give a right to enforce the wrong order and claim parity or equality. two wrongs can never made a right. Under these circumstances, <ORG> was clearly wrong in directing reinstatement of the respondent by a mandamus by a mandamus with all consequential benefits.

The appeal is accordingly allowed. But in the circumstances without costs.