JUDGMENT <NAME>, J.

1. These connected Civil Revisions have come before us upon reference made by a learned single Judge. The revisions are directed against identical orders passed by <ORG>, Allahabad, disposing of certain preliminary issues. The main question which was debated before us was with regard to the decision of the court below on the issue whether <ORG> exercising powers under Section 110 of the Motor Vehicles Act (hereinafter referred to as the Act) has jurisdiction to entertain a claim against the <ORG>. The contention raised by <ORG> (the applicant herein) through the General Manager, Northern <ORG> was that the claims in question -- all of which arise out of the same accident involving a Tempo-Taxi and the Allahabad-Saharanpur Passenger train -- are not maintainable against the <ORG> as under the Act a decree can be passed only against the insurer or owner or driver of the motor vehicle involved in the accident. It cannot be passed against any one else.

2. Before we set out the rival contentions and deal with them we may briefly set out the relevant facts. The various claimants were travelling by a Tempo-Taxi No. UPZ 7184 which collided with the Allahabad-Saharanpur Passenger at Sarai Gopal <ORG> crossing on 28-7-1977 at 10-15 A. M. As a result, the claimants sustained bodily injuries. Thereafter they filed claim petitions before the aforesaid Tribunal against both the owner of the tempo-taxi as well as the applicant, namely, <ORG> represented by the General Manager, <ORG>. In the claim petition it was alleged that the accident had occurred due to the negligence of the employees of the <ORG> staff at the aforesaid level crossing. The employees had wrongly kept the level crossing wide open for the highway traffic to pass at a time when the aforesaid train happened to be passing through that point.

3. The applicant has filed written statements in all these claim petitions. The assertions in paragraphs 25 and 26 of the written statements are that the claim for compensation in respect of death or bodily injuries arising out of the use of a motor vehicle is entertain-able only against the insurer, owner or driver of the vehicle. The <ORG> has no jurisdiction to entertain a claim against the <ORG>. A claim against the <ORG> is triable only by the civil <ORG>.

4. On the aforesaid pleadings one of the preliminary issues framed by the <ORG> under the impugned order is whether the <ORG> has jurisdiction to adjudicate upon the claim as alleged in the applicant's written statement. The court below has answered this issue against the applicant. It has held that inasmuch as the claimants allege to have received injuries in an accident arising out of the use of motor vehicle, which the tempo-taxi undeniably is, the <ORG> would clearly be entitled to entertain the claim under the Act and to award compensation.

5. The learned counsel for the applicant made Section 110-B of the Act the sheet anchor of his argument He submitted that Section 110-B clearly points to the conclusion that the <ORG> has jurisdiction to make an award only against either the insurer or the owner or the driver of the motor vehicle involved in the accident and against no one else.

6. The learned counsel for the claimants, on the other hand, submitted that the extent of jurisdiction of the <ORG> is defined and outlined in Section 110 of the Act. It is therefore the language and interpretation of Section 110 which will be decisive of the controversy. Section 110 is sufficiently widely worded to include within its ambit any claim for compensation in respect of an accident involving death or bodily injury to persons arising out of the use of a motor vehicle. If the death or bodily injury has been caused in an accident arising out of the use of the motor vehicles, then a claim in respect of such an accident would lie before the <ORG> constituted under the Act even if the compensation is claimed against persons other than the insurer Or owner or driver of the motor vehicle.

7. Having given a careful consideration to the relevant provisions of the Act, we are of the opinion that the <ORG> is right in taking the view that the claims in question are maintainable against the <ORG> also.

8. The Motor Vehicles Act , 1939 is a comprehensive enactment having been passed to consolidate and amend the law relating to motor vehicles. Chapter VIII of the Act provides for compulsory insurance of motor vehicles against third party risks. It also defines the limits of liability of the insurer of the motor vehicles. Section 96 of the Act appearing in that Chapter imposes a duty on insurer to satisfy judgments and awards against persons insured in respect of third party risks. We have then the crucial provision, namely. Section 110 which is being re-produced in extenso. It reads thus :--

"110. Claims Tribunals. -- (i) A State Government may by notification in the Official Gazette, constitute one or more Motor Accidents Claims Tribunals (hereinafter referred to as Claims Tribunals) for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising or both.

Provided that where such claim includes a claim for compensation in respect of damage to property exceeding rupees two thousand, the claimant may, at his option, refer the claim to a Civil court for adjudication, and where a reference is so made, <ORG> shall have no jurisdiction to entertain any question relating to such claim.

(2) <ORG> shall consist of such number of members as <ORG> may think fit to appoint and where it consists of two or more members, one of them shall be appointed as the Chairman thereof, (3) A person shall not be qualified for appointment as a member of <ORG> unless he-

(a) is, or has been a Judge of a High Court, or

(b) is, or has been, a District Judge, or

(c) is qualified for appointment as a Judge of <ORG>.

(4) Where two or more Claims Tribunals are conslituted for any area, the State Government may, by general or special order, regulate the distribution of business among them."

9. The next provision is Section 110-A which specifies the person or persons who are entitled to file an application for compensation arising out of the accident of the nature specified in Sub-section (1) of Section 110 . It also prescribes the period of limitation for filing an application for compensation in such cases. Sub-section (2) of Section 110-A lays down that an application under Sub-section (1) of Section 110-A shall be made to <ORG> having jurisdiction over the area in which the accident occurred. It further provides that it shall be in such form and shall contain such particulars as may be specified by the rules. It is significant that Section 110-A does not place any restriction as to the person or persons against whom an application for compensation may be made where the accident arises out of the use of a motor vehicles.

10. There is then Section 110-AA which gives an option regarding claims for compensation. It provides that where a person can claim compensation both under this Act and also under the Workmen's Compensation Act the person entitled to compensation may claim under either of those Acts but not under both. It is pertinent to note here that this option is not available in any other case. Indeed Section 110-F bars the jurisdiction of a civil Court to entertain any question relating to any claim for compensation which may be adjudicated upon by <ORG> for that area.

11. Then there is Section 110-B on which the applicant mainly relies. It reads thus :--

"110-B. Award of <ORG> -- On receipt of an application for compensation made under Section 110A , <ORG> shall, after giving the parties an opportunity of being heard, hold an enquiry into the claim and may make any award determining the amount of compensation which appears to it to be iust and specifying the person or persons to whom compensation shall be paid; and in making the award <ORG> shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them as the case may be."

12. We are clearly of the opinion, upon an examination of the aforesaid statutory provisions and the scheme of the enactment as projected by these provisions, that <ORG> constituted under the Act is empowered to adjudicate upon all claims for compensation in respect of accident involving the death or the bodily injury to persons, where the accident arises out of the use of a motor vehicle and that in awarding compensation in respect of such an accident <ORG> is empowered to award compensation not only against the insurer and the owner and the driver of the motor vehicle but also against those on account of whose negligence the accident may have been caused. The words "in respect of accidents ..... arising out of the use of the motor vehicle....." occurring in Sec. 110 (1) are words of the widest possible amplitude. We see no reason either on the plain language of Section 110 or in any other allied provisions or the scheme of the Act as manifested by the relevant provisions, which may have inhibited or barred the jurisdiction of <ORG> to entertan an ap-plication for compensation in respect of third parties -- in the present case, the <ORG>.

13. As mentioned above, the Motor Vehicles Act is a comprehensive Code, <ORG> have been constituted in our opinion, to entertain all claims in respect of accidents arising out of the use of motor vehicle. It cannot be disputed that where the death or bodily injury is caused to the claimant in an accident arising out of the use of motor vehicle and as a result of the negligence of the owner or the driver of the motor vehicle as well as of a third party, the claim so far as the owner or insurer or the driver of the motor vehicle are concerned would lie before <ORG> under the Act in terms of Section 110 . <ORG> will indisputably have no jurisdiction to entertain the claim against the insurer or owner or driver in view of the express bar imposed by Section 110-F .

14. If, therefore, we were to accept the submission of the applicant it must follow as a necessary corollary that in regard to the same accident as against the third party, the claim would lie elsewhere, namely, <ORG>. In that event it would not be difficult to see that two conflicting decisions are likely to come into existence. The <ORG> may hold the driver of the motor vehicle wholly at fault and responsible for the accident and on that ground award compensation against the owner of the motor vehicle or the driver or the insurer. <ORG> may, on the other hand, seized of the case against the third party in respect of same accident, may come to an exactly opposite conclusion and hold some one else responsible for the accident and bodily injuries to the claimant.

15. Such a result cannot have been intended by the legislature. On the plain language of Section 110 , therefore, we have no hesitation in coming to the conclusion that the claims in question were maintainable against the <ORG>. In our opinion a complete adjudication of all the claims for compensation in respect of an accident arising out of the use of the motor vehicle was intended to be provided for under the Act and consequently unless all the parties involved in the accident are arrayed as opposite parties before the same forum and are heard on the question of negligence, the matter cannot be properly and effectively disposed of. For, otherwise, if the claimant is compelled to institute his claim before the <ORG> only against the owner and driver of the vehicle and insurer and is left to sue the remaining persons responsible for the accident the adjudication cannot be said to be complete and final.

Under the circumstances, the only reasonable interpretation which has appealed to us is that suggested by the learned counsel for the claimants, namely, that the claims were maintainable against the <ORG> also.

16. We may now turn to Section 110-B to see whether there is anything therein which might be construed as restricting the ambit of Section 110 . The first part of Section 110-B has been expressed in general terms. It provides that <ORG> shall after giving the parties an opportunity of being heard hold an enquiry into the claim and may make an award determining the amount of compensation which appears to it to be just and specify the person or persons to whom compensation shall be paid. In the first part, which is the substantive part, there is no indication that the <ORG> cannot award any compensation against persons other than the insurer or the owner or the driver of the motor vehicle. Stress was, however, made on the second part of Section 110-B which provides that in making the award <ORG> shall specify the amount which shall be paid by the insurer or the owner or the driver of the vehicle in question. It was submitted that this limits the power of <ORG> only to these three classes of persons.

17. We are unable to accept the above contention. The second par! of Section 110 comes into operation and is attracted only because it is necessary to apportion the liability between the insurer or the owner in accordance with the relevant provisions of the Act specifying the limits of liability of the insurer. It does not, in our opinion, in any way curtail or restrict the power of <ORG> to award compensation against a third party who may be found to have contributed to the accident involving the death or bodily injuries to persons arising out of the use of the motor vehicle. In our opinion the second part of Section 110-B enjoins the <ORG> to apportion the liability between the insurer and the owner of the vehicle, where the <ORG> holds the owner or the driver responsible for the injury caused to the claimant.

18. The learned counsel for the <ORG> cited three decisions in support of his contention. These are :--

(1) AIR 1974 Gauhati 31 ( <CITATION> ..) (2) 1974 Acc CJ 488 (Union of India v. P. Kailasan).

(3) AIR 1975 Andh Pra 222 (<ORG> y. <ORG>.) In all these cases the view taken is that <ORG> under the Act has no jurisdiction to entertain a claim against any one other than the insurer, owner or the driver of the motor vehicle. We have examined these cases. In each of them reliance has been placed principally on the provisions of Section 110-B of the Act. In the case of <CITATION> . (supra) <ORG> has observed that in view of Section 110-B of the Act there was no scope for inclusion of <ORG> administration in proceedings before <ORG> and that if it was proved that the accident arose out of any negligence or rashness in the use of the motor vehicle the petition will succeed -- otherwise it will fail. In the case of <ORG> v. <NAME> (supra). <ORG> was considering the question whether the non-joinder of the <ORG> in the claim petition was fatal to the proceedings. <ORG> also founded its decision entirely on Section 110-B of the Act and observed that <ORG> was not empowered to adjudicate on the liabilities of <ORG> even if it was held to be negligent. It held that the <ORG> was therefore not a necessary party. Even so., <ORG> held that in order to enable the <ORG> to effectively and completely adjudicate on the question as to whose negligence contributed to the accident, the <ORG> WRS certainly a proper party. It may, however, be observed here that in the case before <ORG> the claimants had conceded that <ORG> was not empowered to adjudicate on the liability of the <ORG>. In the case of <ORG>

ral <CITATION> (supra) the view taken is that Section 110 is applicable only to cases of claim against the owner or the driver of the motor vehicle or the insurer as the case may be and not against strangers.

19. We have examined these cases but with great respect we are unable to agree with the view taken therein. In all these cases the main provision which persuaded the learned Judges to take the view contrary to what has appealed to us is Section 110-B .

20. We have already made our comments on the true ambit and purpose of Section 110-B . We reiterate that the latter part of Section 110-B appears to have been enacted for the simple reason that where the driver or the owner of the motor vehicle is found to have been negligent and the injuries are found to have been caused as a re-suit of that negligence, the liability has necessarily to be apportioned, between the insurer and the owner in view of the provisions already noticed hereinabove. The limits of the liability of the insurer have also been specified in the Act. The apportionment of the liability between the insurer and the owner thus becomes necessary. It was to give effect to this statutory requirement that the law requires that while awarding the compensation the liability must be apportioned. Section 110-B , thus does not in our view curtail the width or amplitude of Section 110 which is the source of power of <ORG> under the Act.

21. The result of the aforesaid discussion, therefore, is that the court below has rightly held that the claim petitions are entertainable against the <ORG> also. As the applicant has not challenged the findings of the <ORG> on other preliminary issues, the revisions are liable to be dismissed in view of the above finding.

22. In the result all the revisions fail and are dismissed with costs.


<NAME>, J.

1. This Second Appeal arises out of a suit for a declaration and injunction and in the alternative for the recovery of possession of certain land in the village of Panthapuli in the Sivagiri Zamindari. The Plaintiff claims the suit land on patta from the Zamindar who is the 9th Defendant. In the alternative he claims a refund of Rs. 300 from the Zamindar. Defendants 1 to 8 are the villagers of Reddiarpatti, a hamlet of Panthapuli. They claim that the suit land is part, of their village and it is communal land and therefore the Zamindar was not entitled to grant patta for it to anybody. The first issue raises the question whether the suit land is assignable by the 9th Defendant. The second raises the question whether there was in fact an assignment. The third and fifth issues relate to possession. The District Munsif decreed the Plaintiff's suit. There was an appeal by Defendants 1 to 8. After the appeal was filed, the 6th Appellant died and Appellants 1, 5 and 7 stated that they did not want to press the appeal. The result was that there were only four appellants who were willing to proceed with the appeal. It does not appear that there was any application filed by these people to declare that they were sufficient to represent the whole village or in the alternative if the <ORG> thought otherwise for permission to add as many as may be required as appellants for the purpose of representing the whole village. The Subordinate Judge thought that these appellants were not competent to prosecute the appeal, and on this ground dismissed it. Now, if his judgment merely consisted of this decision there is nothing more to stay. All that has to be done is to consider whether the dismissal of the appeal is correct or not. But he has curiously enough written four paragraphs (3 to 6) deciding all the points on the merits in favour of the appellants and against the respondents.

2. On this appeal it is argued by the learned Advocate for the Appellants that it was not proper for the Subordinate Judge to have dismissed the appeal altogether. The proper procedure in such a matter was indicated by me in <CITATION> (1930) I.L.R. 54 Mad. 527 : 61 M.L.J. 135. It is for the <ORG> to say whether the parties that remained on record are competent to represent the whole village. If it thinks that they are competent, it can proceed with the appeal after expressing that opinion. But if it thinks that some more persons are necessary to represent the whole village it ought to give an opportunity to the particular party to supplement the existing number by the addition of other persons according to the directions of the <ORG>. Strictly this is not a matter of bringing legal representatives on record because the case is not prosecuted in respect of any personal rights of the deceased persons. Instead of following this course the Subordinate Judge simply dismissed the appeal. On this ground the Second Appeal has to be allowed and the case has to be remanded to the Lower <ORG> for fresh disposal according to law. But it is necessary for me to state what I think of the other findings recorded by the Subordinate Judge. In my opinion when he once made up his mind to dismiss the appeal on the ground of defect in the prosecution of the case probably one would have thought it was unnecessary to express any opinion on the merits on the other points especially when they are complicated. It is true that sometimes <ORG>s may. give findings on the other points in the case to avoid loss of time in case the appellate <ORG> takes a different view on the point on which the case is disposed of, and to avoid a further remand or call for findings on the other points undisposed of. In this view I must express my opinion on the findings of the Subordinate Judge on the three other points whether they should be accepted or whether fresh findings should be called for.

3. [His Lordship after coming to the conclusion that the findings of the Subordinate Judge on all points as to possession and enjoyment of lands were unsatisfactory, proceeded to say:]

4. The case must therefore go back for fresh disposal according to law on all the points raised in the case. Costs of this appeal to abide the result. The appellants will be entitled to a refund of the <ORG>-fee paid on the memorandum of appeal.


JUDGMENT

1. The appellant is one of the Nuzvid Zamindars whose judicial history will be found in <NAME> v. Court of Wards(1878)I.L.R. 2 M. 128 and Sri Raja Venkatanarasimha Appa Row v. Sri Baja Rang ay ya Appa Bow, and others(1905)I.L.R. 29 M. 437. The Zamindar alleged that the defendant, the Secretary of <ORG>, constructed in 1863 the Ellore canal to carry the anicut water through the Zamindari and thereby obstructed the flow of water into one of his tanks Voddu cheruva from his other three tanks, and since that time, the Government have been supplying him with water free of charge for the cultivation of his lands about 507 acres 14 cents, which depended on these tanks for their irrigation from 1889 they allowed supply free of charge only for 427 acres, 91 cents, and on his appeal from such redaction it was still further reduced to 202 acres 67 cents. He prays for declaration of his right to the supply of water as before and for certain reliefs consequential on such declaration. The Government filed their written statement and issues were framed which covered all the questions of factrelied upon by the plaintiff. But without taking any evidence, the question whether the plaint discloses a cause of action was first argued and decided against the plaintiff.

2. The Subordinate Judge held that no express 'engagement' under Act VII of 1865 having been alleged, all lands irrigated by Ellore canal water must pay cess. The Judge in appeal held that a promise by the <ORG> in 1863 to supply water may perhaps be implied in the plaint though the issues according to him show that the claim was based on a letter of a Deputy Collector of May 1891 which, it may be remarked, however, is not referred to in the plaint. He was of opinion that unless there was an express agreement, the <ORG> are entitled to levy water cess at pleasure.

3. The decisions of the Lower Courts go beyond the claim set up by the <ORG>, who concede the plaintiffs right to water free of charge for 200 odd acres in their written statement. The Subordinate Judge states that plaintiffs' pleader in agrument before him relied on a contract with the <ORG> and the Judge states that the plaint apparently implies it. Issues 1 to 4 were necessary only if an implied agreement formed the basis of the claim. They certainly included it. In these circumstances as the evidence had not been taken and the plaintiffs relied only on the facts alleged in the plaint and raised by the issue, an amendment of the plaint setting forth that the plaintiff relied on an 'engagement' with government should have been allowed if necessary. I do not think the omission to mention it is fatal to the suit. However to remove any difficulty we have allowed the plaint to be so amended. The question whether the facts set forth disclose a cause of action has been fully alleged before us. As the plaintiff relies upon on 'engagement' in 1863 with the government in the sense in which that term is used in Act VII of 1865 it is necessary to refer to the events which led to the passing of that Act. We assume that the facts on which the plaintiff relies are true. When it was proposed in 1856 or thereabouts to undertake a general survey and reassessment of the lands in the Madras <ORG>, the question arose how those lands irrigated from the Godavari and Ristna anicuts were to be assessed. Till that time the practice in the <ORG> when water was supplied from irrigation works was to charge a consolidated wet assessment when water was permanently available and to levy a water rate only when it was temporarily required for cultivation. The lands were classified as either 'irrigated' or 'non-irrigated'. The Secretary of <ORG> suggested that this classification of lands according as they were capable of irrigation or otherwise from the <ORG> sources should be abolished and all land should be classified with reference to its soil and productiveness without irrigation; a water rate being charged when water is used or permanently available.

4. After a long correspondence which showed that different views were put forward and various difficulties pointed out among them the practical impossibility of fixing the assessment to which the land which has been long under wet cultivation would be liable as unirrigated land, it was finally resolved to accept the suggestion of the Secretary of <ORG> and orders were issued by the <ORG> of Madras on 12th March 1858 that "a water cess calculated with reference'to the additional irrigation canal communications, drainage and embankments is to be levied invariably on all lands irrigated from the Godavari and Kistna channels from the 2nd year of irrigation, without any reference to whether they are <ORG> land, Inam lands or belonging to properietors, and if in the latter two cases, the acting collector (<NAME>) has neglected to take engagements, and opposition is made, he is forthwith to stop the supply." These instructions received the sanction of the Secretary of <ORG> and one of his reasons was that this would be the easiest and most equitable mode of obtaining a fair contribution from the Zamindars towards the re-payment of the expenditure incurred in the construction of "drainage irrigation and other works undertaken by <ORG> and benefiting the lands of those proprietors as well as of <ORG>." This is how the term 'engagement' (see proviso to Section 4 of Act VII of 1865 of which the draft bill was then under consideration) was used so far as I know for the first time.

5. These instructions were communicated to <ORG> and officials to be carried out.

From this the following conclusions may-tie deduced.

6. Water rate was intended in re-payment of the cost of those irrigation works which supplied the water. It was not intended to assess lands which received their supply from sources, as in this case, completely under the Zamindars' control with which the <ORG> had nothing to do. No ' engagements' with ryots were contemplated obviously for the reason that it could be included in land revenue, the only mode at that time of recovering the water charge from proprietors as distinguished from ryots of <ORG> lands was to enter into engagements with them, and if they refused to do so, the remedy suggested was to stop the supply of water. It is clear that the Zamindar was not bound to enter into any engagement with <ORG> to take water when he was the owner thereof as when it was confined in tanks or reservoirs or in virtue of this riparian or easement right from rivers, as it was not open to <ORG> to prevent him from doing so. The <ORG> were not in those cases supplying him with water; nor could they therefore stop the supply.

7. It is probable therefore that where the Government continued the supply it was under some engagement.

8. With reference to these two clauses there was no difficulty. In the first class of cases in which the irrigation was carried on without any" cost to <ORG> and in exercise to the proprietors' rights of easement by vicinage, of ownership, no water cess levied, or in fact, could be claimed. In the second class of cases where irrigation was carried out with water supplied from the <ORG>s and only by means of <ORG> irrigation works, channels etc., the <ORG> were entitled to dictate their own terms for the supply of water. If they were not accepted, they were entitled to stop the supply. The result was, between the construction of the <ORG> and the passing of the Act of 1865, water was supplied to the proprietors on terms.

There were, however, other cases which it was more difficult to deal with.

9. Inams were exempted from permanent sanads and the Nanja inams were irrigated from Government sources. Similarly where there were Zamindaries (and those formed out of Havelli lands in which water sources were retained under Government control would be such) which were irrigated from Government sources.' As they were entitled to Government water, the following rule for water assessment was passed for their benefit on, the 26th October 1861:

Lands granted as nanja inams and fully irrigated accordingly at the Government cost will not be charged with water assessment." The same rule was applied to Zamindars.

10. There was a fourth class. Water from the <ORG> anicut works was often carried to ryotwari lands by means of the old channels which passed through Zamindaries and were for that purpose improved, enlarged and extended by the <ORG>. The Zamindar who obtained his water through these channels naturally claimed the anicut water which flowed through his channels. Some of the <ORG> channels flowed through the tanks or reservoirs which were Zamin property, and the Zamindar was thus deprived of his tank water. Some channels of the Ellore canal in the case before us, cut off the supply to the tanks on which the cultivation of Zamindari lands depended. It is obvious that the Zamindar in all these cases had a just grievence. The <ORG> however considered that the water supply before the days of the anicut was precarious and irregular and they issued the following rule on the 26th October 1861:

No. 12. Such nanja inams as were formerly imperfectly irrigated and have since been fully supplied with water from the anicut works, will be charged at half the above water rates." The rule was made applicable to Zamindaries also. There was a proposal sometimes afterwards that even the rule which allowed the full supply without any charge should be altered to allow half rate on the ground that there was never any adequate supply before. On account of the strong protest of <ORG> the Government altered the half rate rule and allowed water free of charge even where the half rate had been levied in lands which "owing to the construction of several anicut channels and other works connected therewith were found to have lost wholly or partially their pre-existing sources of supply." See G. O. No. 101 Rev. dated the 16th January 1864. For determining what lands lost their sources of supply, the order states "the real criterion is the rate of assessment which the account shows the land is liable to." The order further says "If this indicates the title of the land to water or if other reasonable pr oof can be adduced, then no charge should be made for irrigation as the engagement to supply water manifestly implied a full and not an imperfect supply.

11. There is only one further order to be referred to. The Secretary of <ORG>, in considering whether a cultivator should have the option to refuse <ORG> water, said: (the 16th January 1864) "with reference to your question" 'whether the ryotshould be allowed the security against an excessive charge which the option of deciding, by a stated period of each year, whether he will have water or not will give him,' I am clearly of opinion that such option should be permitted. There is little ground for apprehension that the option would be exercised by the cultivator in the way of declining to use the means of irrigation when they are supplied to him at a moderate price, and the possession of it would in no respect limit the right which the <ORG>, acting on your own behalf or on that of the irrigation Company, must retain, the right of declining to supply any particular tract of country with water, unless the cultivator should be prepared to enter into engagements to take the water at the stipulated rate in such numbers and for such terms of years as might warrant the required outlay. Although few would probably reject the opportunity, yet no compulsion to take the water must be exercised towards the dissentients and they must in no way be disturbed in the possession of their lands, so long as they desire to hold them, and continue to pay the ordinary rate of assessment. This despatch marks it clear that the Secretary of <ORG> wanted to give the ryots the same option of taking, anicut water as the Zamindars and Inamdars had. This order was communicated by the Madros <ORG> to the officers concerned and it was pointed out by the <ORG> that "as regards lands which have been fitted for irrigation by the owners and have actually been irrigated for at least one season it may fairly be held that such preparation and acceptance of water imply acquiescence with the usage ot the country which does not require any formal engagement." That really means in other words, an engagement will be implied between the <ORG> to furnish water and the ryots to receive this supply. In those cases where the water was found on the ryots the option was allowed and agreements were directed to be taken from them for any further supply of water. And they added, " The same rule must of course apply equally to the holders of lands in Zamindaries--until the. zamindars come to terms with the <ORG> and collected cess." In accordance with those directions rules were framed in 1864; the bill which subsequently became Act VII of 1865 was directed to be prepared in accordance with these orders of the Secretary of <ORG>. I extract below two of the rules."

12. Rule (7). "Where ryots desire to convert dry land into wet, application is to be made to the Collector either directly or through the Tahsildar on or before the 31st March, and the Collector Will arrange with <ORG> for the supply of water. Where the means of irrigation for such land already exist the ryot shall, as a rule, have the option of continuing or ceasing to use the water at his pleasure, provided that where water is taken etc." This shows clearly no water-cess was intended where the ryot uses only the means of irrigation he already had.

13. Rule (10). These rules shall apply to zamindary and Inam lands except in the case of zamindaries, a composition shall have been made either for fixed yearly payment or according to the quantity of water supplied. Provided always that no charge whatever shall be made under these rules for a single crop for zamindary or Inam land where such lands are proved to have been customarily cultivated with wet crops under old tanks, channels or by any means of irrigation whatever prior to the construction of anicuts, or to have been charged in the accounts with such a rate of assessment as indubitably indicates the title of such land to water or by the terms of the grant to have been given as nanja Inam."

14. There were thus three circumstances recognised as conferring a right to exemption from water rate otherwise leviable.

(1) The existence of any means of irrigation including tanks, channels whatever prior to the construction of anicuts;

(2) Lands being charged with <NAME> assessment, and (3) The title, deed showing that an Inam was granted as nanja.

15. Two conclusions follow : That it was not intended to levy any charge on cultivation carried on with any pre-existing source of supply, tank, channels and rivers; that in these instances the Government were only carrying out a legal obligation created by interference with such pre-existing source of supply which would have been enforced by the Courts.

16. An Act was necessary to collect the cess in the same way as land revenue and perhaps to remove the difficulties that might be caused by taking water through Zamindari and Inam lands. It was first intended only for the districts which used the Godavery and Kistna water and power was reserved in the original draft to extend it to other Districts, But finally the bill was drafted for the Presidency.

17. Before considering what the relations of the parties were or whether there was an engagement between the parties at this time i.e., in 1863 and 1864, I shall finish my review of the proceedings which led to the Act.

18. In forwarding the draft Act to the Government Pleader, the Government asked his opinion whether it was necessary to specify Zamindary and Inam lands in order to enforce the special cess " on land newly irrigated from Government sources at Government expense." The opinion of the Government Pleader was in the affirmative and he drafted the section in these terms : " This Act shall extend to all lands held by Zamindars or Inamdars for the irrigation of which water may be, after the passing supplied or used from any such river, stream, channel, tank or work as specified in the section." On its being pointed out that this might preclude the levy of any water rate for irrigation newly supplied to such lands since the construction of the anicut but prior to the passing of the Act and which supply may hereinafter be continued, the Govern-ment modified it by omitting the words " after the passing of this Act newly " and the sections then ran in the form in which it was finally passed by <ORG> thus " This Act shall extend to all lands held by Zamindars, Inamdars or any other description of landholders for the irrigation of which water may be supplied or used from any such river, stream, channel, tank or work as is specified in section, provided always that where a Zamindar or Inamdar by virtue of engagement with the Government is entitled to irrigation free of separate charge no cess under this Act shall be imposed for water supplied to the extent of such right and no more."

19. In the case before us the water is supplied to the lands in suit from a <ORG> source to wit, Ellore canal and <ORG> works, and therefore unless the plaintiff proves the ' engagement ' that he sets up the <ORG> are entitled to levy water tax. The word ' engagement' in the section is no doubt used in the same sense in which it was used in the proceedings to which I have already drawn attention. Now what was the state of things when the Act was parsed. When the <ORG> intercepted the flow of the water from the other three tanks mentioned in the plaint into Vodu Cherava, they undoubtedly inflicted an injury upon the plaintiff and if the plaintiff had enforced his claim in a civil court he would have obtained a decree for compensation payable to him for such interference which would probably have been a direction to supply him with that water which his tank was usually getting before the interruption or some equivalent compensation. Now it is not to be presumed that the <ORG> did a wrongful Act if the facts are consistent with any other supposition. The natural presumption is that they compensated him in some form. We find that the <ORG> had issued orders that where their irrigation works had interfered with a pre-existing source of supply, water was to be supplied free. We see here there was such interference and the consequent free supply. The orders also show that in other codes water was to be supplied to Zamindars under engagements to pay at certain rates. We see here no such payment received or demanded. We further find that even as to the ryotwari lands the <ORG> proceedings directed that engagements should be entered into and that the <ORG> presumed that, when the ryots prepared their lands for irrigation sources an engagement might be implied. Under these circumstances unless the free supply of water from 1863 is explained by <ORG> it appears to me the presumption, not only natural but almost irresistible, is that there was an implied engagement between the parties for the free supply of water. The Judge rightly observes, "The Act was an embodiment of the <ORG> Order"; but he holds that " it was for the Zamindar to have entered into an engagement with <ORG> as to the extent of irrigation to which he was entitled." In my opinion he is wrong in holding that an express agreement is necessary. That the plaintiff was irrigating the lands in suit with <ORG> water free of charge is clear evidence that he was entitled to water sufficient to irrigate them either because they were then being irrigated with his tank water or could have been so irrigated with his tank water or it was only on those conditions that he permitted any interference with his property.

20. The "<ORG> Pleader contends that, though there may be an engagement, it is only to the effect that the <NAME>s are entitled to receive from the <ORG> water necessary for the old customary irrigation of their lands, that is to say, they are not entitled to water sufficient to irrigate that area which is entered as wet in the permanent settlement accounts and in the absence of any allegation in the plaint that the land for which they claim free supply of water is land so entered as wet in the old accounts, the plaintiff is not entitled to maintain the suit. If the argument is that the engagement in 1863 with reference to this estate had reference only to the old settlement accounts to the knowledge of both the parties, it is open to the <ORG> to plead it and prove the same. That would be an express agreement. Otherwise it cannot be used to limit the plaintiff's claim based on the state of things in 1863. For, the <NAME> may have improved the capacity of his tank or increased the area of his wet cultivation since the sanad and the supply of water must have been made to compensate him for his loss then sustained. If the argument is that an ' engagement ' referred to is to be implied from the conditions that existed at the date of the permanent sanad it is not answer to the plaintiff's claim; because if the facts imply an engagement in 1863 when the supply was obstructed, that there was another engagement in 1802 or afterwards when the permanent sanad was granted, unless it is shown that is the only engagement which is intended by the Act of 1865, is not material. The section itself is not restricted to any engagement at the time of the permanent settlement. And I have no doubt it was open to the parties to enter into any engagement at any time they liked. The plaintiff may be entitled to say that if the old Gudigat wet area according to the permanent settlement accounts entitled him to more land than what he now claims then he should be entitled to the free cultivation of lands to that extent in addition. He may also be entitled to say, if he was getting water sufficient to cultivate more lands than the area he now claims, he is entitled to such quantity of water and cultivate more lands with it as it is reasonable to presume that the <ORG> could not have intended to deprive a man of his property without compensation. This is apparently the effect of G. O. No. '^416, 17th June 1895 " where the mamul wet areas to be allowed are found to be in excess of the highest recorded areas under wet cultivation in the village concerned, the maximum area irrigable should be allowed." It is necessary however to consider this question as he makes no such claim in the plaint. The rules, already extracted, in force at the time the Act was passed, support this conclusion. He is entitled to exemption if his pre-existing source of supply is interfered with or if the accounts show a nanja assessment or if the title deed supports the claim. The one is not exclusive of the others. The Act, as rightly pointed out by the Judge being only an embodiment, so far as this matter is concerned, of the pre-existing rules, an engagement will be implied if any of these grounds exist. The tanks, if. any, in the Zamin undoubtedly belonged to the <NAME>. The <ORG> lay no claim, to them. It is not probable that there was therefore any engagement by the <ORG> to supply water for the irrigation of such lands under tanks. From where could the <ORG> supply such water? Not from these tanks with which they had nothing to do so, and it is not shown there was any other source of water supply. No engagement can therefore be implied. An engagement can only be implied in those cases in which it was in the power of the <ORG> to stop the supply of such water themselves. Otherwise I see no reason for any implied contract so far as the lands irrigated with any pre-existing source of supply which did not belong to the <ORG> are concerned. For these reasons I am unable to accept the <ORG> Pleader's argument that the engagement to be proved has reference only to the wet area shown in the permanent settlement accounts. If, however, it is necessary to prove what area was so entered, then, the fact that these lands were under cultivation from 1863 to 1889 and it is not shown by the <ORG> that the lands were brought under cultivation only sometime after the permanent sanad was granted, would be evidence to show that they were mamool wet even at the date of the Permanent Settlement. The Permanent Settlement accounts are with the <ORG> and if the extent of wet cultivation under these tanks is referred to in those accounts, it is for the <ORG> to produce them if it is material.

21. The only case that has been cited in argument before <ORG> against the Government Pleader's contention, (Appeal No. 182 of 1904) was a similar case and the learned Judges, (<NAME> and <NAME>) stated the question for decision in these terms : " The question for decision in this appeal is, in effect, what is the extent of land in the village of Ravipad which was irrigable from the irrigation works existing before the construction of the Godavari anicut irrigation system." I entirely agree. It appeared that various accounts showed the various extent of land under cultivation but they adopted the greatest area irrigated which no doubt showed those lands were capable of irrigation works before the days of anicut. They did not put the plaintiff to proof of what the settlement area was. I am therefore of opinion that, if the facts relied upon by the plaintiff are proved, a cause of action is disclosed. The Judge is therefore directed to return findings on the issues in the case. It will be open to him to direct the Subordinate Judge to submit findings to himself.

Six months are allowed for findings and seven days for objections.

22. <NAME> concur in the decision just now pronounced by my learned brother and if I add a few words in my own language it is merely on account of the importance of the questions involved in this case. This is one of those cases arising out of the Government's having constructed anicut, channels and other works connected therewith in the Godavari and Kistna deltas. Some of these channels interfered with the sources of irrigation to the lands of certain landholders or interfered with the flow of water to the tank which formerly supplied water for irrigation to such lands. The Proceedings of the Board of Kevenue dated the 11th February 1898 cbntain the following:

When the system of anicut irrigation was introduced into the Godavari and Kistna deltas, Government allowed free irrigation from the anicuts to all lands which, owing to the construction of the several anicut channels, and other works connected therewith, were found to have lost, wholly or partially, their pre-existing sources of supply (G. 0. No. 101, <ORG> dated 16th January 1864.)

23. This shows that about 1864, the <ORG> offered to allow free irrigation from the anicuts to such lands as were deprived of their former sources of supply. The owners of such lands who did not enter into litigation with the <ORG> in order to prevent <ORG> from interfering with the old sources of supply and who took the water supplied by the <ORG> anicuts must be taken to have accepted the offer of <ORG> as satisfaction of their claims against <ORG>. The fourth paragraph of the plaint in this case says that the <ORG> supplied the plaintiff's land with water from the year 1863 to 1900 and that the plaintiff accepted such water. There was in my opinion, therefore, a clear completed engagement between the <ORG> and the plaintiffs set out in the plaint and hence the plaint shows a good cause of action. Suits similar to this were instituted by the proprietrix of the village of Ravipad, the proprietors in Chinchinada and by two other proprietors in 1902 in the District of Godavari. Mr. <NAME>, the learned District Judge who decided those suits acted upon the <ORG> Order of 1864 and found an implied engagement between the <ORG> and the proprietors of those estates and gave effect to that engagement as against the <ORG>. On appeal to <ORG> by the <ORG>, it was contended as the very first ground in the appeal memorandum (see the appeal memo in Appeal No. 182 of 1904) that the District Judge erred in law in finding that there was an implied contract between the plaintiffs and the <ORG> to allow free irrigation for the extent of land, the irrigation sources of which had been cut off by the anicut works. The learned Judges {<NAME> and <NAME>) who decided that appeal and connected Appeals Nos. 183 and 184 of 1904 saw nothing in that contention and begin their judgment at once with the sentence. " The question for decision in this appeal is, in effect what is the extent of land in the village of Ravipad which was irrigable from the irrigation sources existing before the construction of Godavari anicut irrigation system." Following the decision in those appeals, we must in this case set aside the decision of <ORG> which held that the plaint discloses no cause of action. I may add that in A. Section No. 182 of 1904 it was assumed that, if there was an engagement between the <ORG> and the proprietor that engagement was to supply water free of tax on the extent of land which was irrigable from the irrigation works existing just before the construction of the Godavari anicut irrigation works, and not merely on the lands which were irrigable as wet lands at the time of..the permanent settlement. The contention of the learned <ORG> Pleader before us that the engagement mentioned in Act VII of 1865 Section 1 (a) relates to the engagement at the time of the permanent settlement cannot be accepted in the face of the decision in Appeal No. 182 of 1904. If seems unreasonable to hold that after a land holder has improved his zamindari and brought between 1802 and 1862 a large extent of land under wet cultivation by improving his irrigation sources, when the <ORG> by their new anicut system cut off the sources of irrigation supply to those large extents of lands, they intended to arrange with the zamindar to supply him water free of charge only to the wet area, which existed in 1802 but not to the area which had begun to be permanently cultivated as wet at the time when they constructed the anicut channels. The <ORG> Order of 1864 and the Board's Proceedings of 1898 already referred to are against the contention that the <ORG> did not undertake liability to supply water free to all those lands whose then existing irrigation sources were interfered with by the <ORG>'s constructions. In the result I agree in the order proposed by my learned brother.


PETITIONER: STATE OF WEST BENGAL AND ORS. ETC. Vs. RESPONDENT: DEBDAS KUMAR AND ORS. ETC. DATE OF JUDGMENT19/02/1991 BENCH: FATHIMA BEEVI, M. (J) BENCH: FATHIMA BEEVI, M. (J) SHARMA, L.M. (J) CITATION: 1991 SCR (1) 517 1991 SCC Supl. (1) 138 JT 1991 (2) 36 1991 SCALE (1)271 ACT: West Bengal Services (Revision of Pay and Allowance) Rules 1970-Schedule I, Part-B and Notification dated November 19, 1974 sub-para (ii) of Part IV 3 `Diploma holders in engineering'-Whether to be termed as Sub- Assistant Engineers and given the benefit of the post and pay scale. HEADNOTE: The respondents in these appeals are diploma holder engineers employed in the various departments of <ORG> as Operator-cum- mechanics/Electricians etc. in the pay scale of Rs.230-425. Consequent upon the amendment of West Bengal Services (Revision of Pay and Allowances) Rules, 1970 the respondents filed writ petitions before <ORG> claiming that by virtue of sub-para (ii) of Para IV of the Notification dated 19.11.74 they are to be termed as Sub- Assistant Engineers and given the benefit of that post and scale of pay of Rs.300-600, as they are diploma holders in engineers. It was asserted by them that the benefit of the said Notification had been given to similarly situated persons in the other department of <ORG> but they had been subjected to discriminatory treatment by denying to them those benefits. <ORG> contended before <ORG> that sub-para (ii) Para IV of the notification applied only to Overseers, Estimators and Sub-Overseers already working in the pay scale of Rs.300-600 and not to Operator-cum-Mechanics/Electricians etc. whose scale of pay was Rs.230-425. According to the <ORG>, the said Notification was intended merely to change the designation of various technicians and engineers having identical scale of pay Rs.300-600 to secure uniformity of designation of those employees and since the recruitment qualification of the respondents was much less than the diploma in engineering, they were not entitled to be redesignated as Sub-Assistant Engineers. The learned single Judge of <ORG> allowed the writ petitions holding that the case of the respondents fell within the purview of the November 1974 notification and they were entitled to be termed as Sub-Assistant Engineers. <ORG> preferred an appeal against the said order before <ORG>. <ORG> of <ORG>, though held that sub-para (ii) of para IV of the Notification dated 19.11.1974 could not be 518 construed to include the Operator-cum- Mechanics/Electricians, who were drawing the pay scale of Rs.230-425, dismissed the appeals with the observation that the respondents/writ petitioners should have been admitted to the benefit of the pay scale of Rs.300-600 long before others holding the same position as the writ petitioners had been granted the benefits. <ORG> has now filed these appeals after obtaining special leave. Dismissing the appeals, this Court, HELD: The reasons for amending the 1970 Rules by the Notifications dated 11.3.1974 and 19.11.1974 was the decision of the Government to remove the anomalies in the existing rule so as to attract men of quality and also with a view to remove frustration among those having specialised knowledge of a technical nature.[525C-D] The persons brought under the category of `other diploma holder engineers' can only be the persons like the Operator-Cum-Mechanic/Electrician with diploma in engineering and working in various departments in <ORG>. [525F] Clause (iv) of Para IV of the Notification which states that Gazetted status is conferred on the members of <ORG> and all sub-Assistant Engineers also relates to these two categories, that is, the Overseers, Sub-Overseers and Estimators who are already members of <ORG> and the `other diploma holder engineers' now termed as Sub-Assistant Engineering. [525G-H] There is a concurrent finding that these respondents have been discriminated and <ORG> had acted arbitrarily without any rational basis by conferring benefits of the Notification to 17 other employees in other departments while denying the said benefits to the said respondents in <ORG>] <CITATION> ,  2 SCR 930; <CITATION> ,  Supp.2 SCR 169, referred to. JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1196 of 1986 with 830 of 1991.

From the Judgment and Order dated 19.4.1985 of <ORG> in F.M.A.T.Nos. 153 of 1980 and 326 of 1983.

<NAME>, Additional Solicitor General, <NAME>, <NAME>, <NAME> and <NAME> for the Appellants.

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

The Judgment of the Court was delivered by FATHIMA BEEVI, J. The West Bengal Services (Revision of Pay and allowance) Rules, 1970, (hereinafter referred to as 1970 Rules), issued in exercise of the power conferred by the proviso to Article 309 of the Constitution of India, vide Notification No. 5212.F dated 30th December, 1970 on the basis of the Pay Commission Report specified the revised scales of pay of the government employees in various departments with effect from 1st April, 1970. Schedule I of the 1970 Rules relates to services generally.

<ORG> issued Notification No. 10303.F dated 19th November, 1974, amending the 1970 Rules. The Notification material for the purpose of these cases is set out below:

"NOTIFICATION No. 10303.F, Dated the 19th November, 1974. In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor is pleased to direct that the following amendment shall be made in the West Bengal Services (Revision of Pay and Allowance) Rules, 1970, Published with <ORG> Notification No. 5212,F, dated the 30th December. 1970, as amended from time to time, namely:

AMENDMENTS In Schedule I, Part-B, to the said rules, the following amendments shall be made:

1. In the cadre of Assistant Engineers under different Departments, the Intermediate Selection Grade shall be at 15 per cent of the Cadre in the scale as shown in Column (3) of the Schedule.

II. In departments/offices having services/posts as shown in Column (i) in the scale as shown in Column (2) of the Schedule, there shall be no Intermediate or New Selection Grade as the case may be at 10 per cent of the services/posts (except in the cadre of Assistant Engineer) in the scale as shown in Column (3) of the Schedule.

III. From 1st August 1974, the New/Intermediate Selection Grade shall be raised to 15 per cent, from 10 per cent.

IV. (i) Sub-Assistant Engineers having Engineering Degree shall have an initial start in the existing scale of Rs.300-600 at the stage of Rs.360 per month. They will also get the benefit of age relaxation for direct recruitment either through <ORG> or for ad hoc appointments.

(ii) All Test Relief Overseers and other diploma holder Engineers will henceforth be termed as Sub- Assistant Engineers.

(iii) Sub-Assistant Engineers with L.E.E. who have supervisor's licence from <ORG> will get a qualification pay of Rs.50 per month.

(iv) Gazetted status is hereby conferred on the members of <ORG> and all Sub-Assistant Engineers.

V. The existing scale, namely Rs.375-10-415-15-610- 20-650 prescribed for the members of the non- gazetted <ORG> having M.B.B.S., or M.M.F. qualifications shall be changed to Rs. 375-10-415- 15-610-20-650 (E.B. after 8th and 18th stages) higher initial start at Rs.450.

VI. All Licentiate Medical Officers in <ORG> (<ORG>-<ORG>) who have completed 10 years of service shall be eligible for appointment in <ORG> (<ORG>) within the existing cadre strength of the basic grade provided they are found suitable for the basic grade in consultation with <ORG>.

VII. The New or Intermediate Selection Grades sanctioned above shall be admissible after 10 years of service in the grade next below.

VIII. Unless otherwise stated above and in the Schedule; these amendments shall be deemed to have come into effect from 1st day of March, 1974. IX. The Notifications bearing No. 2194.F, 2195.F and 2197, dated the 11th March, 1974, stand cancelled.

X. No prior consultations with <ORG> shall be necessary for making appointments to New/Intermediate Selection Grades sanctioned in this Notification."

The said Notification contained a Schedule. The relevant items dealing with Engineering is provided as follows:

SCHEDULE _______________________________________________________________ Service/ Existing scale New/Intermediate Posts Rs. Selection Grade Rs.

________________________________________________________________

1. Engineering Services/Posts.

i) Assistant 475-30-685-35-1000- 825-50-875-60-1415.

Engineer 50-1150, with selec- tion grade for 5 per cent of the cadre on 1150-50-1350. ii) Executive 825-50-875- 1535-60-1775. Engineer 60-1475. iii) Sub-Assistant 300-10-430-15-600 560-20-700-25- Engineer with higher initial 825(a). start at Rs. 330/-.

____________________________________________________________ The respondents in Civil Appeal No. 1196 of 1986 and the respondents in the other Civil Appeal arising out of S.L.P. (Civil) No. 5298 of 1987 are diploma holder engineers employed in various departments of <ORG> in the post of Operator-cum-Mechanics/Electricians etc. in the scale of pay of Rs.230-425. These respondents filed two writ petitions bearing No. C.R.. Nos. 6053 (W) of 1978 and C.R. No.6593(W) of 1978 before <ORG>, claiming that by virtue of sub-para (ii) of Para IV of the Notification No. 10303.F dated 19th November, 1974, the writ petitioners who are diploma holders in engineering are to be termed as Sub- Assistant Engineers and given the benefit of that post and the scale of pay of Rs.300-600. They contended inter alia that the benefit of the aforesaid Notification was given to similarly situated persons in the other deparptments of <ORG> and the writ petitioners employed in <ORG> had been subjected to discriminatory treatment.

The <ORG> Government contended before <ORG> that sub-para (ii) of Para IV of the said Notification applies only to the Overseers, Estimators and Sub-Overseers already holding the scale of pay of Rs.300-600 and not to Operator-cum-Mechanics/Electricians etc.like the writ petitioners whose scale of pay is Rs.230-425. According to the <ORG>, the said Notification was merely one changing the designation of various techniques and engineers having scale of pay of Rs.300-600 but having different designations and was meant to give uniformity of designation to all the aforesaid officials in the same scale of pay of Rs.300-600. It was also the contention of the <ORG> that they being Operator-cum-Mechanics whose recruitment qualifications is much less than the the diploma in engineerings, the writ petitioners cannot or are not entitled to be redesignated as Sub-Assistant Engineers. These contentions were repelled by the learned single Judge who by judgment dated 19th September, 1979, allowed the writ petitions. In the Judgment, <NAME>, J., (as he then was) held as under:

"Now it is important to emphasise that the said Notifications covered `other diploma holder Engineers'. Now, if those who were engineers or those for whose recruitments qualification of being engineers was essential there was no necessity to indicate that they should be henceforth be termed as Sub-Assistant Engineers. They are Engineers, Sub-Assistant or otherwise, before they were called by the deeming provision of the amended Notifications referred to hereinbefore."

In construing sub-para (ii) of Para IV of the said Notification, the learned Judge said thus:

"The aforesaid clause in the Notifications can only mean, in my opinion, that even though the persons who come within the purview of this amended clause of the Notification will for the limited purpose of their pay, allowances and other financial emoluments be termed from the date of coming into operation or from the mentioned in the Notification of 1974 that is to say from 1st of March, 1974 as Sub-Assistant Engineers though they are, in fact, not engineers. That in my opinion, is clear from the language used."

The learned single Judge noticed that the history preceding the Notification supported the clear language used and persons holding different positions became by virtue of the Notification entitled to be termed as Sub-Assistant Engineers irrespective and independent of whether by fortuitous circumstances some of the incumbents who got the benefits of the said Notification are also qualified engineers. Accordingly, it was held that the writ petitioners come within the purview of the Notification for purpose of the the pay-scale and the rule was made absolute.

<ORG> carried the matter in appeal. <ORG> of <ORG> vide judgment and order dated 19.4.1985, however, affirmed the judgment while holding that sub-para (ii) of Para IV of the Notification dated 19.11.1974 cannot be construed to include the Operator-cum-Mechanics/Electricians who are holders of diploma in engineering and drawing the scale of pay of Rs. 230-425. The appeal was dismissed with the observation that the writ petitioners should have been admitted to the benefit of the scale of pay of Rs.300-600 with higher initial start long before others holding the same position as the writ petitioners have been granted the benefits and that great injustice had been done to the writ petitioners by keeping them in the panel since 1974 without taking any steps for their appointments to the post of Sub-Assistant Engineers although others have been appointed to the said post in implementation of the impugned Notification.

Being aggrieved by the appellate judgment, the <ORG> has moved this Court under Article 136 of Constitution. Leave is granted in S.L.P.(C) No. 5298 of 1987.

The main contention urged on behalf of the appellants is two-fold. It is contended that <ORG> having come to the specific conclusion that the Notification in question is not applicable to the respsondents herein, the writ petitions ought to have been dismissed. The further contention is that the appointment of 17 other persons without considering the case of the respondents even if irregular cannot be the basis for making the Notification applicable to the respondents.

Before considering these propositions put forward by Mr. <NAME>, Addl. Solicitor General, appearing for the appellants, we shall dispose of the preliminary objection raised by Mr. <NAME>, counsel for the respondents. It was pointed out that no appeal has been preferred by the State of West Bengal against the judgment dated 25.6.1982 in the case of <NAME> v. The State of West Bengal & <ORG>., being C.R. No. 923 (W) of 1980, granting similar relief and that the rule of law has become final so far as that matter is concerned. Relying on the decision of this Court in <CITATION> ,  2 SCR 930, it was argued that the State cannot agitate the case of only few others. It is not disputed that the judgment against which no appeal has been preferred is only based on the judgment in the main case which is now pending before us for consideration. The Court in <CITATION> ,  Supp.2 SCR 169, where a similar objection was raised overruled the same observing at page 177 thus:

"In our opinion, the true position arising, if the present appeal by <ORG> should succeed, would be that the finality of the orders passed in the other three writ petitions by <ORG> would not be disturbed and that those three successful petitioners would be entitled to retain the advantages which they had secured by the decision in their favour not being challenged by an appeal being filed. That however would not help the present respondent who would be bound by our judgment in this appeal and besides, so far as the general law is concerned as applicable to everyone other than the three writ petitioners (who would be entitled to the benefit of decisions in their favours having attained finality), the law will be as laid down by this <ORG>. We therefore overrule the preliminary objection."

It appears that this pronouncement was not noticed in <NAME> case (supra) where the facts were also not identical. We have, therefore, no hesitation in overruling the preliminary objection.

The appellants, in our opinion, cannot however, succeed on the merits. The basis of the respondents' claim is that they are diploma holder engineers who are to be designated as Sub-Assistant Engineers for the purpose of the revised pay-scale by virtue of the Notification dated 19th November, 1974. The learned single Judge had construed the expression 'other diploma holder engineers' in clause (ii) of Para IV of the said Notification as covering persons like the respondents who are holders of diploma in engineering. The Division Bench in holding a contrary view overlooked the fact that the posts of Overseers, Estimators and Sub- Overseers were already covered under the category of Sub- Assistant Engineers even under the unamended rules and were in the pay-scale of Rs.300-600 whereas the respondents holding the post of Operator-cum-Mechanics/Electricians were diploma holder engineers in the scale of pay of Rs.230-425. As noticed by the learned single Judge, the reasons for amending the 1970 Rules by the Notifications dated 11.3.1974 and 19.11.1974 was the decision of the <ORG> to remove the anomalies in the existing rule so as to attract men of quality and also with a view to remove frustration among those having specialised knowledge of a technical nature. This factual background was not considered by <ORG> while considering the scope of the amended provisions. The appellants admitted that in 1970 the pay-scale of Overseers and Sub-Overseers was revised and both Overseers and Sub-Overseers were brought within the scale of Rs.300-

600. The Division Bench has recorded a finding to the effect that the Overseers. Estimators and Sub-Overseers were already included in the categories of Sub-Assistant Engineers under Schedule I Part-B of the 1970 Rules even before the same was amended by the Notification.

The persons brought under the category of 'other diploma holder engineers' can only be the persons like the Operator-cum-Mechanic/Electrician with diploma in engineering and working in various departments in <ORG> Service. It is to be noticed that the respondents have been absorbed in the posts of Operator-cum- Mechanics after having attended to the training sponsored under the scheme 'Training of Educated Unemployed Youths' in the operation of river lift, deep tubewells and shallow tubewells etc. Clause (iv) of Part IV of the Notification which states that Gazetted status is conferred on the members of <ORG> and all Sub- Assistant Engineers also relates to these two categories, that is, the Overseers, Sub-Overseers and Estimators who are already members of <ORG> and the 'other diploma holder engineers' now termed as Sub- Assistant Engineers.

<NAME>

It has been contended for the appellants that by construing the Notification as including Operators-cum- Mechanics in the lower time scale as Sub-Assistant Engineers and giving them a higher scale, there would be a division amongst the Operators-cum-Mechanics in the matter of their pay-scale and such an anomly would not have been contemplated by the rule makers. There is no force in this contention. It is well-settled that difference in pay of employees belonging to the same cadre post or educational qualification is constitutionally valid and permissible and is not violative of Articles 14 and 16 of the Constitution. The post of Sub-Assistant Engineer is a direct recruitment post. It appears that <ORG> assumed that the post of Sub-Assistant Engineers were ultimately a promotional post for the Operators-cum-Mechanics through intermediary promotions in intermediary grades. This is incorrect. Under the Rules, the post of Sub-Assistant Engineers is not at all a promotional post for any categories of employees in the <ORG>, on the contrary, it is a direct recruitment post. It is not contested that 17 other employees similarly placed as the respondents herein were given the benefits of the said amended Notifications and were conferred both status of Sub-Assistant Engineers and also the pay-scale thereof for the reason that they were also diploma holder engineers though they were not in the pay-scale of Rs.300-600. This is a concurrent finding that these respondents have been discriminated and the <ORG> Government had acted arbitrarily without any rational basis by conferring benefits of the Notification to 17 other employees in other departments while denying the said benefits to the said respondents in <ORG>.

It has been brought to the notice of the <ORG> that the Operators-cum-Mechanics would be absorbed in the existing vacancies in the category of Sub-Assistant Engineers since injustice had been done to the respondents by keeping them in the panel since 1974 without taking any steps for their appointments as Sub-Assistant Engineers along with others when such appointments were made and the assurance made before the <ORG>. The fact that in implementation of the judgment of the learned single Judge, the respondents have already been admitted to the benefits of the amended Rule, is an additional reason for this <ORG> not to interfere with the impugned judgment.

We are, therefore, of the view that both the civil appeals have only to be dismissed. We do so accordingly. The parties are directed to bear their respective costs.

Y.L. Appeals dismissed.


PETITIONER: RAM KISHAN Vs. RESPONDENT: U. P. STATE ROADWAYS TRANSPORT CORPORATION DATE OF JUDGMENT23/04/1993 BENCH: KULDIP SINGH (J) BENCH: KULDIP SINGH (J) SINGH N.P. (J) CITATION: 1994 SCC Supl. (2) 507 ACT: HEADNOTE: JUDGMENT:

ORDER

1. Special leave granted.

2. <NAME> and his wife <NAME> are the appellants before us. Their son <NAME> died as a result of accident on March 2, 1974. The boy was run over by bus No. UTB-109 belonging to <ORG>. It was being driven by one <NAME>. The driver was prosecuted under Sections 279 / 304-A  and was convicted by the court. The appellants filed an application for compensation along with an application for condonation of delay before <ORG>, Jaunpur in the year 1977. By its order dated August 4, 1978 the <ORG> rejected the prayer for condonation of delay and dismissed the application as time-barred. The first appeal filed by the appellants before <ORG> was dismissed on December 7, 1981.

3.Appellant <NAME>, in support of the application for condonation of delay before the <ORG>, stated that his young son having died in the accident, he was deeply bereaved and was not in his senses. He further stated that he did not know the court procedure and as such he consulted one <NAME>, advocate who advised him that an application for compensation before the Motor Accident Claims <ORG> could be filed after the decision in the criminal trial against the accused-driver. The criminal trial concluded on November 28, 1977 and thereafter he filed the application before the Motor Accident Claims <ORG> in December 1977.

4. Although the story put forward by the appellants, for not filing the application for compensation within the period of limitation, does not sound + Arising out of SLP (C) No. 11369 of 1982 convincing but keeping in view the facts and circumstances of this case, especially the extreme shock under which the appellants were labouring, we are of the view that <ORG> should have condoned the delay and decided the claim on merits.

5.We allow the appeal, set aside the judgment of the <ORG> and of <ORG>, condone the delay in filing the application for compensation before the Motor Accident Claims <ORG>, Jaunpur and remand the case to the <ORG> for decision on merits after hearing the parties in accordance with law. The <ORG> shall decide the application expeditiously and preferably within six months from the date of the receipt of this order. No costs.