PETITIONER: <NAME> & ORS. Vs. RESPONDENT: THE STATE OF BIHAR & ORS. DATE OF JUDGMENT31/08/1995 BENCH: PARIPOORNAN, K.S.(J) BENCH: PARIPOORNAN, K.S.(J) RAMASWAMY, K. CITATION: 1996 AIR 122 1995 SCC (6) 31 JT 1995 (6) 248 1995 SCALE (5)74 ACT: HEADNOTE: JUDGMENT:

WITH CIVIL APPEAL NOS. 7820-21 OF 1995.

--------------------------------------------- [Arising out of SLP(C) Nos. 21401-02 of 1993] <NAME> & Ors.

<NAME>

<NAME> & Ors.

J U D G M E N T PARIPOORNAN, J.

Leave granted.

2. A batch of four writ petitions - <ORG> No. 8426/88, <ORG> No. 6373/88, <ORG> No. 3720/90 and <ORG> No.9000/89, was heard and disposed of by <ORG> by a common judgment dated 30.7.1993. The appellants who obtained leave in S.L.P. (C) No. 20490 of 1993, are the petitioners in <ORG> No. 8426 of 1988. The intervenors and respondents in <ORG> No. 6373/88 and the petitioners in <ORG> No. 3720/90, who have filed the civil appeals in pursuance to leave granted in S.L.P. (C) Nos. 21401-02 of 1993, are the appellants in the other appeals. No appeal is preferred by any of the parties in <ORG> No. 9000/89 against the common judgment. The State of Bihar, its officials - <ORG>, <ORG>, <ORG>, Patna, <ORG> and its officials are the respondents in these appeals.

3. The main contesting respondents in the above appeals are - the State of Bihar, <ORG>, and <ORG> <ORG> was a writ petition filed by <ORG>, praying that appropriate directions may be given to the respondents therein (the State of Bihar and its officials, <ORG>, <ORG> and <ORG>) to give effect to the directions given by <ORG> in CWJC No. 3241/82 in the judgment dated 23.5.84, and for other consequential and incidental reliefs, including directions to the respondents to remove the encroachments or unauthorized constructions from the vacant lands which formed the subject matter of the notification. The four writ petitions were disposed of by a common judgment dated 30.7.1993, by a Division Bench of <ORG> (<NAME> and <NAME>, JJ). By the aforesaid judgment the learned Judges directed the land acquisition officer to sign and complete the award in terms of the earlier order of the <ORG> dated 31.7.1984, in Form 15 and to take further steps in terms of Section 12 of the Land Acquisition Act,1894 (hereinafter referred to as the 'Act'). <ORG> was allowed to the above extent.In view of the above directions, the other writ petitions were dismissed. The learned Judges also observed that the office will start preparing separate records relating to the contempt of court matters so as to pass necessary orders, and that the authorities before whom a suit and other encroachment proceedings relating to the land under acquisition were pending, shall expedite them. Aggrieved by the aforesaid judgment, the petitioners in CWJC No. 8426/88, the respondents and intervenors in <ORG> and the petitioners in <ORG>, after obtaining special leave have filed the aforesaid appeals.

4. We heard Mr. <NAME> and Mr. <NAME>, Senior Counsel who appeared on behalf of the appellants and Mr. <NAME>, Senior Counsel, Mr. <NAME>, Advocate and Mr. <NAME>, Advocate, who appeared on behalf of the respondents. The subject matter in the appeals relates to land acquisition proceedings, covering an extent of about 32.48 acres in the villages of Rajapur No. 3 and Dujra No. 4, Perganna Phulwari, Thana Phulwari, District Patna, initiated under Section 4(1) read with Section 17(4) of the Act as amended by Bihar Act No. 18 of 1964.

5. <ORG>, a society registered under the Societies Registration Act on 4.3.1958, (hereinafter called the '<ORG>'), and its officials are the petitioners in CWJC No. 6373/88. The <ORG> requested <ORG> to acquire land for the purpose of providing it to doctors, lawyers, <ORG> servants and journalists for building purpose. An extent of 25.09 acres of land was acquired under the normal procedure and the acquisition was completed on 11.7.1862. Possession of the land was taken and compensation was also paid. There is no controversy about this part of the acquisition.

6. The <ORG> wanted to acquire another block of 32.48 acres, the land adjacent to the aforesaid 25.09 acres. The entire controversy in this batch of appeals is regarding this acquisition, initiated under Section 4 read with Section 17(4) of the Act ("emergency" acquisition). The Notification relating thereto is dated 4.2.1959. The declaration under Section 6 was made on 4.6.1969. A writ petition filed in <ORG> assailing the above proceedings was allowed with liberty to the authorities to initiate proceedings afresh on 2.4.1960. While so, <ORG> (<ORG>), (hereinafter referred to as the '<ORG>'), requested the <ORG> to acquire 64.48 acres of land in Dujra and Rajapur villages for its <ORG>, Phase-I. The extent of 32.48 acres of land which the <ORG> wanted to acquire and for which proceedings were initiated (under Section 4(1) read with Section 17(4) fell within the area, which the <ORG> wanted the <ORG> to acquire. A fresh Notification under Section 4 read with Section17(4) of the Act, proposing to acquire 64.48 acres of land was promulgated on 6.8.1961.There was an understanding that upon acquisition, out of the above land, 32.48 acres would be transferred to the <ORG>. A declaration under Section 6 of the Act dated 5.10.1961, appeared in the <ORG> on 7.10.1961. As stated, the possession of 25.08 acres acquired under the ordinary procedure was handed over to the society on 11.7.1962. It appears that possession of an area of 57.71 acres covered by the later notification, was delivered to the <ORG> on 6.8.1962. Later, the <ORG> handed over possession of 32.48 acres to the <ORG>. While so, in M.J.C. No. 65/62 <ORG> of Patna stayed the land acquisition proceedings. The stay was in force from 23.1.1962 to 1.7.1964 and the M.J.C. was finally withdrawn. It appears that the <ORG> deposited with the <ORG> a sum of Rs.1 million on 7.4.1965. By letter No.254, dated 18.1.1972 the <ORG> directed the Collector not to make the award till fill payment of compensation was deposited by the <ORG>. The acquisition was questioned in C.W.J.C. No. 812/67 in <ORG> of Patna. The said petition was dismissed. The matter was taken in appeal to this Court. The appeal was also dismissed. The decision of this Court is reported in <ORG> and others vs. The state of Bihar and others, AIR 1974 sc 1886. The <ORG> did not deposit the entire compensation amount despite reminders. While so, on 14.8.1981 the <ORG> passed a resolution not to acquire the entire lands sought, expect those portions which were required for construction of the road. It is stated that two awards were passed on 13.3.1982 for an extent of 4.47 acres and 3.32 acres only and the amount of compensation due thereunder were also paid. No award was passed in respect of the remaining lands. It is in these state of affairs, on 22.8.1982 the <ORG> filed the writ petition CWJC No. 3241/82, and assailed the resolution of the <ORG> dated 14.8.1981 and also prayed for a direction to the respondents therein to release the lands. The <ORG> of Patna by its Judgment dated 23.5.1984, quashed the resolution of the <ORG> dated14.8.1981, and also directed the District Collector to prepare the award.In the said Judgment, it was noticed that the <ORG> was given possession of lands acquired under the normal procedure - 25.08 acres, and also lands acquired under the emergent procedure - 32.48 acres. The Court further found that since possession of the land had been taken, the <ORG> cannot withdraw from the acquisition. The validity of acquisition was upheld by <ORG> which was affirmed by this Court and it was observed that the acquisition cannot be nullified, for not passing an award. The Court also noticed that there was unauthorized construction and encroachments, but since the land vested in the <ORG> and possession was taken over, no rights will acquire by such unauthorized construction and encroachments. It is seen that the special leave petition filed against the Judgment of <ORG> in CWJC No. 3240/82 was dismissed by this Court on 23.9.1984. Pursuant to the aforesaid Judgment an award dated 31.7.1984 was passed. The appellants contend that the proceeding dated 31.7.1984 is only a valuation statement and not an award. According to the respondents, the proceeding dated 31.7.1984 is in substance an award. The <ORG> filed an application before the Collector under the Bihar Public Encroachment Land Act, 1976 against 207 persons. The <ORG> also filed Title Suit No. 32/87 in <ORG>, Patna against 357 persons for restoration of possession by evicting the encroachers.

7. The above events led to the filing of CWJC No. 6373//88 by <ORG>, the <ORG> and the Land Acquisition officer to give effect to the Judgment rendered in CWJC No. 3241/82 and for other reliefs and complete the acquisition proceedings. The appellants herein filed CWJC No. 8426/88 and 3720/90, in effect contending that the entire land acquisition proceedings had lapsed in view of Section 11-A of the Act. They are also intervenors in CWJC No.6373/88. Before us, as also before <ORG>, the objections of the appellants and intervenors against the land acquisition proceeding are three-fold:

(i) The land acquisition proceeding have lapsed in view of Section 11-A of the Act.

(ii) The proceedings dated 31.7.1984 is not an award since it is not in Form 15 and is unsigned.

(iii) The <ORG> is not entitled to any relief as prayed for in CWJC No. 6373/88, since it has initiated alternate proceedings by way of title suit and application under the Bihar Public Land Encroachment Act, 1956.

8. The sheet-anchor of the appellants plea is that the land acquisition proceedings have lapsed in view of Section 11-A of the Act. In order to understand the scope of the plea it will be useful to extract the relevant provisions of the Acts. [ Section 6 , Section 11 , Section 11- A, Section 17 and Section 18(1) ].

"6. Declaration that land is required for a public purpose.-

(1) Subject to the provisions of Part VII of this Act, when the appropriate Government is satisfied, after considering the report , if any, made under Section 5-A , sub-section (2), that any particular land is needed for a public purpose, or for a Company, a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorized to declarations may be made from time to time in respect of different parcels of any land covered by the same notification under section 4 , sub-section (1), irrespective of whether one report or different reports has or have been made (wherever required ) under Section 5-A , sub- section (2) Provided that no9 declaration in respect of any particular land covered by a notification under Section 4 , sub- section (1),-

(i) published after the commencement of the Land Acquisition (Amendment and Validation) Ordinance 1967 (1 of 1967), but before the commencement of the Land Acquisition (Amendment) Act , 1984, shall be made after the expiry of three years from the date of the publication of the notification;or

(ii) published after the commencement of the Land Acquisition (Amendment) Act , 1984, shall be made after the expiry of one year from the date of the publication of the notification:

Provided further that no such declaration shall be made unless the compensation to be awarded for such property id to be paid by a Company, or wholly or partly out of public revenues or some fund controlled or managed by a local authority."

"11. Enquiry and award by Collector.- (1) on the day so fixed, or on any other day to which the enquiry has been adjourned, the Collector shall proceed to enquire into the objections (if any) which any person interested has stated pursuant to a notice given under Section 9 to the measurements made under Section 8 , and into the value of the land at the date of the publication of the notifications under Section 4 , sub- section (1), and into the respective interests of the compensation and shall make an award under his hand of -

(i) the true area of the land;

(ii) the compensation which in his opinion should be allowed for the land;and

(iii)the apportionment of the said compensation among all the persons known or believed to be interested in the land, of whom,or of whose claims, he has information, whether or not they have respectively appeared before him: Provided that no award shall be made by the Collector under this sub- section without the previous approval of the appropriate <ORG> or of such officer as the appropriate <ORG> may authorise in this behalf: (2) Notwithstanding anything contained in sub-section (1), if at any stage of the proceedings, the Collector is satisfied that all the persons interested in the land who appeared before him have agreed in writing on the matters to be included in the award of the Collector in the form prescribed by rules made by the appropriate <ORG>, he may without making further enquiry, make an award according to the terms of such agreement. (3) The determination of compensation for any land under sub-section (2) shall not in any way affect the determination of compensation in respect of other lands in the same locality or elsewhere in accordance with the other provisions of this Act.

(4) Notwithstanding anything contained in the Registration Act ,1908, , no agreement made under sub- section (2) shall be liable to registration under that Act." "11-A. Period within which an award shall be made.- The Collector shall make an award under Section 11 within a period of two years from the date of the publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse:

Provided that in a case where the said declaration has been published before the commencement of the Land Acquisition (Amendment ) Act, 1984, the award shall be made within a period of two years from such commencement. Explanation.- In computing the period of two years referred to in this section, the period during which any action or proceeding to be taken in pursuance of the said declaration is stayed by an order of a <ORG> shall be excluded."

"17. Special powers in cases of urgency.- (1) In cases of urgency, whenever the appropriate <ORG> si directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in Section 9 , sub- section (1), take possession of any land needed for public purpose. Such land shall thereupon vest absolutely in the <ORG>, free from all encumbrances.

XXX XXX XXX (4) In the case of any land to which, in the opinion of the appropriate Government, the provisions of sub- section (1) or sub-section (32) are applicable, the appropriate Government may direct that the provisions of Section 5-A shall not be apply, and, if it does so direct, a declaration may be made under Section 6 in respect of the land at any time after the date of the publication of the notification under section 4 , sub-section (1)." "48. Completion of acquisition not compulsory, but compensation to be awarded when not completed.- (1) Expect in the case provided for in Section 36 , the Government shall be at liberty to withdraw from the Acquisition of any land of which possession has not been taken."

It was contended that in view of Section 11-A of the Act the entire land acquisition proceedings lapsed as no award under Section 11 had been made within 2 years from the date of commencement of the Land Acquisition Amendment Act , 1984. We are of the view that the above plea has no force. In this case, the Government had taken possession of the land in question under Section 17(1) of the Act.It is not open to the Government to withdraw from the acquisition ( Section 48 of the Act). In such a case, Section 11-A of the Act is not attracted and the acquisition proceedings would not lapse, even if it is assumed that no award was made within the period prescribed by Section 11-A of the Act. Delivering the Judgment of a Three Member Bench of this Court, in <CITATION> , 1993 (4) sc 369, s.p. Bharucha, J., at page 374, paragraph 15, stated the law thus:

"Ordinarily, the <ORG> can take possession of the land proposed to be acquired only after an award of compensation in respect thereof has been made under section 11 . Upon the taking of possession, the land vests in the <ORG>, that is to say, the owner of the land loses to the <ORG> the title to it.This is what section 16 states. The provisions of section 11-A are intended to benefit the landowner and ensure that the award is made within a period of two years from the date of the section 6 declaration. In the ordinary case, therefore, when <ORG> fails to make an award within two years of the declaration under section 6 , the land has still not wasted in the <ORG> and its title remains with the owner, the acquisition proceedings are still pending, and by virtue of the provisions of section 11-

A, lapse. When section 17(1) is applied by reason of urgency, <ORG> takes possession of the land prior to the making of the award under Section 11 and thereupon the owner is diversted of the title to the land which is vested in the <ORG>. Section 17(1) states so in unmistakable terms. Clearly, section 11- A can have no application to cases of acquisition under Section 17 , because the lands have already vested in the <ORG> and there is no provision in the said Act by which land statutorily vested in the <ORG> can revert to the owner."

(Emphasis supplied) We, therefore, hold that the land acquisition proceedings in the instant case did not lapse.

9. We are also of the view that the proceedings dated 31.7.1984 (appearing 82 to 84 of Paper Book, Vol.I, and at pages 203 to 206 of paper Book, Vol.II), is in substance an award as contemplated by Section 12 of the Act.It is signed by the District Land Acquisition officer (Collector) under the Act, though the signature appears to be illegible dated 31.7.1984, <ORG> observed that the State is bound by the directions given by the <ORG> earlier in CWJC No. 3142/82, that in the light of the aforesaid order of <ORG>, proceedings dated 31.71984 was passed, that all requisites of an award are mentioned in the said ordure, and since there is substantial compliance, it should be treated as an award. <ORG> was also of the view that even a defective award which has provisions with the directions of the <ORG> and the provisions of law will not invite " the wrath" of Section 11-A of the Act. We are in general agreement with the reasoning and conclusion of the high <ORG> in holding that three proceedings dated 31.7.1984, in the facts and circumstances of the case, is an award passed by the Collector under the Act, though not in Form 15. It is only a matter of procedure which should be complied with. Since the direction given by <ORG> in CWJC No. 3241/82 should not be effectuated, <ORG> was justified in directing the authority concerned to sign and complete the award in t terms of the earlier order dated 31.7.984. The reasoning of <ORG> that it has power to issue such directions under Article 215 , in a case where otherwise the conduct of the persons called for punishment in contempt, appears to be justified. We hold that the proceedings dated 31.7.1984, is in substance, an award, though it is not in Form 15.

10. Mr. <NAME>, senior counsel, very strongly contended that since the <ORG> filed an application before the Collector under the Bihar Public Land Encroachment Act, 1956, and also title suit No. 32/87, in <ORG>, Patna for removing the encroachments, <ORG> was in error in not dismissing the writ petition filed by the <ORG>. In other words, the plea was that since the <ORG> has availed of the alternate remedy, the writ petition should have been dismissed and <ORG> should not have exercised the discretionary jurisdiction under Article 226 of the Constitution of India. Counsel pressed into service the decision of this <ORG> in <CITATION> , AIR 1977 sc 898, to substantiate the plea. We are of the view that <NAME> case is clearly distinguishable. In that case, the appellant before this court prayed for quashing the demand made against him in respect of royalty. His case was that gypsum ore was less than the p[articular percentage of purity. Whereas according to the revenue, it was not so established and the substance contained a higher percentage of purity. The plea of the appellant was not accepted by the statutory authorities. The writ petition filed by the appellant in <ORG> was dismissed on the ground that it fact and the appellant had an alternate remedy. Against the dismissal of the writ petition the appellant filed an appeal in this <ORG> on a certificate granted by <ORG>. He also filed a suit wherein the same question was agitated which was the subject matter of the writ petition. In these circumstances, this <ORG> held that the appellant, in the said case, cannot pursue two parallel remedies in respect of the same matter at the same time. We are also of the view that ordinarily the above rule should prevail. There may be extraordinarily situations or circumstances, which may even warrant, a different approach, where the orders passed by the <ORG> are sought to be violated or thwarted with impunity. The <ORG> cannot be silent spectator in such extra- ordinary situations. The position obtaining herein is rather a different and unusual one. The writ petition was filed by the <ORG> (CWJC No. 6373/88), praying for a direction to the respondents to give effect to the directions contained in the earlier judgment of this <ORG> in CWJC No. 3241/82, dated 23.9.1984, and for other consequential or incidental reliefs. So, it cannot be said that in the instant case, the relief sought was to remove the encroachments from the lands or to remove the unauthorized constructions, which are covered by the encroachment case or the title suit. They may be incidental or consequential to the main relief, in giving effect to the earlier directions or orders of <ORG>. But such relief cannot be withheld or denied. In the Judgment dated 23.9.1984, rendered in CWJC No.3241/82, the <ORG> categorically held that non-passing of the award will not nullify the acquisition, the validity of the acquisition was upheld by <ORG> and the Supreme <ORG>, and the encroachments or the unauthorized structures were put up by persons in the property at their own risk, and it was further observed that once possession of the land was taken by the <ORG> the fact that the owner of the land entered upon the land, will not obliterate the consequences of vesting, and allowed the writ petition filed by the <ORG>, and quashed the steps taken for derequisitioning of the land requested by the <ORG> and issued a writ of mandamus directing the Collector of Patna to prepare the award as expeditiously as possible. The plea of the respondents that the project itself was rendered an impossibility on account of excessive encroachments or unauthorized constructions, was repelled, and relying upon the decision of this <ORG> in <CITATION> , AIR 1975 SC 1767, it was held that once possession of the land was taken by the <ORG>, even if the owner of the land entered upon the land and resumed possession of it the very next moment, such act does not have the effect of obliterating the consequences of vesting. In allowing the prayer of the <ORG> in CWJC No. 6373/88, by a common judgment dated 30.7.1993, <ORG> was only implementing its earlier order and directions in CWJC No. 3241/82 which it was bound to do in the circumstance. We hold that the directions and orders contained in CWJC No. 3241/82, which were not interfered with, by this <ORG> in special leave petition, by order dated 21.3.1984, should be fully and effectively implemented. We hold so.

11. Mr. <NAME>, senior counsel feebly raised the plea that the Government authorities did not take possession of a small portion of the land, about 7 acres; and there is no award relating thereto, and the proceedings regarding that portion of the land, had lapsed. This plea is without substance. In our view the proceedings dated 31.7.1984 is in substance an award passed in pursuance of the directions given by this Court in CWJC No. 3421/82. The entire land, for which request for acquisition was made by the <ORG>, was delivered over to the <ORG>.Possession was taken of the entire land and the plea that possession of a small portion of the land was not taken is against the record (see AIR 1974 SC 1886 at 1889).

12. All the contentions urged on behalf of the appellants fail. The appeals are wholly without merit and we dismiss them with costs. It is distressing to note that the land acquisition proceeding which was initiated for a very laudable purpose, more than 37 years ago, is not yet complete. At one point of time, it was brought to the notice of the <ORG> that even the files relating to the acquisition of land are not traceable. The High <ORG> was constrained to hold, on an earlier occasion, that non-traceability of the files must be attributed to deliberate destruction of the relevant files by the "interested parties",and "but for the intervention of influential persons", the Government would not have stayed the entire proceedings as it did on 3.5.1965. We are constrained to observe that the hands of the interested parties seem to be still active, and the intervention of such influential persons has not disappeared (AIR 1974 SC 1888). A laudable and noble cause is delayed for more than 3 decades, under one pretext or the other. We express our anguish in the entire episode. We, therefore , direct the State of Bihar, its officials, the authorities and other persons concerned who are seized of the subject matter of the instant land acquisition proceedings, to complete the proceedings in the quickest possible time. We further direct the appellants in these appeals to pay costs of Rs. 10,000/- in each of these appeals, towards the Advocate's fees for the <ORG>.

13. The appeals are dismissed with costs as aforesaid.


JUDGMENT <NAME> and <NAME>, <NAME>.

1. The question in this appeal is--whether an alienation by a, pujari of his office is one which can be recognized as legal ?

2. First and second defendants, two brothers, acquired jointly in 1869 certain rights of performing puja. in certain temples. They are undivided, but they enjoyed this right severally, each, as is found, taking his turn of performance of the office in accordance with arrangements made by them.

3. On the 12th October 1878 the first defendant sold his right to plaintiff,, who instituted the suit out of which this second appeal arises to enforce the right thus transferred to him, as, since the purchase, the defendants had prevented his enjoyment of it.

4. The District <NAME> found in favour of plaintiff against the contention of the second defendant that the enjoyment of the office by his brother was joint, and that he had never enjoyed the specific right of seven and a half days puja which he had pretended to dispose of to plaintiff, and that the sale was not binding on him.

5. The appeal was on the ground that the sale was not completed, and that the first defendant had no right to sell a specific share of the property of an undivided family.

6. The Subordinate Judge, however, dismissed the appeal. He observed that it was admitted that puja-holders can dispose of their right, and that, as the defendants had admitted that the puja was not a conjoint worship, an arrangement for apportioning the joint right must necessarily have been made, and the evidence showed that the first seven and a half days had fallen to first defendant in the arrangement actually come to between him and second defendant.

7. In second appeal, the point that the right claimed is the right of purchase of a religious office is for the first time taken.

8. In the view we take of the case, it is not necessary to notice the other grounds of appeal.

9. Although this objection to the suit is only now taken, we cannot avoid considering it, as it is one of great importance and goes to the foundation of plaintiff's right of suit.

10. We find that the question of the legality of the sale of religious offices has received considerable discussion in all the <ORG>.

11. In <NAME> v. <NAME> 3 M.H.C.R. 380, a Karaima right in a pagoda was declared unsaleable. In special Appeal 759 of 1876 <ORG> confirmed the decree of <ORG> refusing to recognize as legal the sale of the office of pujari.

12. In <NAME> v. <NAME> 7 M.H.C.R. 32, it was held that the office of <NAME> in a temple could not be alienated when the alienation contemplated the introduction of a different ritual.

13. The decision in <NAME> of <NAME> v. Mootha <NAME> 7 M.H.C.R. 210 regards the sale of a religious trust as illegal. <ORG> dismissed the appeal from this decision (I.L.R. 1 Mad. 235; S.C. L.R. 4 I.A. 76) on the ground that no custom which could qualify the general principle of law that such trusts were unsaleable had been established in the case, and that the case disclosed that the sale was for the pecuniary advantage of the trustee--a circumstance which would invalidate any such custom if it had been shown.

14. In <NAME> v. <NAME> I.L.R. 2 Cal. 347 : S.C. L.R. 4 I.A. 58 there is a dictum by <ORG> that, although in the case of a family idol the consensus of the family might give the existing dedication another direction, this could not be done in the case of a public temple by the consensus of the trustees. The foregoing cases are authorities for the proposition that the alienation of religious trusts and offices is generally illegal, though in some special circumstances it may be held valid. An instance in which such an alienation has been upheld is afforded by <NAME> v. <NAME> I.L.R. 6 Bom. 298. The Judges in that case upheld an alienation of an hereditary office made in favour of a person standing in the line of succession and not disqualified for the performance of the office by personal unfitness. In <NAME> v. <NAME> 7 W.R. 266 the Judges refused to recognize the purchase in execution of a decree of an office which involved the performance of Hindu religious worship on the ground that the purchase might be made by Christians or Muhammadans or other persons whose status might altogether unfit them for the performance of the worship.

15. <CITATION> 5 B.L.R. 617 Mr. Justice <NAME> took the same view, and as Mr. Justice <NAME> observes in the Bombay case already referred to, it is obvious that equal objections must exist to unrestricted alienations of a private character. In this latter case, the alienation was only allowed on the consideration that the office was heritable and the alienee, who was an heir, fitted to perform his duties. It is urged that, in the present case, the alienee is of the same caste and sect as the family of the alienor, and that no objection as to fitness to perform the worship exists in his case. But we are not disposed to hold that this of itself will validate such an alienation. To hold so would tend to public mischief in inducing needy incumbents of hereditary religious offices who desired to sell them to give a dishonest recognition to qualifications which, in fact, were not the qualifications demanded by the nature of the office. It is not necessary for us to determine in this case whether we should be disposed to go the length of what is decided in <NAME> v. Pranshankar I.L.R. 6 Bom. 298 that a purchase by a person standing in the line of heirs or otherwise qualified should be upheld. It is sufficient to say that an alienation to a person not in the line of heirs, though otherwise qualified for the performance of the office, is not one which should be excepted from the general rule against the alienation of hereditary religious trusts and offices.

16. We must reverse the decrees of the Courts below and dismiss plaintiff's suit with costs.


<NAME>, J.

1. The sole question for determination in this appeal is as to the jurisdiction of the civil <ORG> to entertain the suit. The appeal is taken from a judgment and order of <ORG>, dated February 2, 1938, which set aside a decree of the Subordinate Judge at Cuddalore, dated March 30, 1937 (which had dismissed the respondents' suit on the ground of want of jurisdiction), and directed the Subordinate Judge to restore the suit to the file and to dispose of it on the merits.

2. The respondents are a firm of merchants, having their head office at Pan-ruti in the Province of Madras, and, in the course of their business, they import betel-nuts from Java into British India. The facts in the present suit, which was filed by the respondents on April 10, 1934, are not materially in dispute. The suit relates to two consignments of betel-nuts, imported by the respondents in December, 1932, from Java to Pondicherry by sea, and thereafter by rail to Panruti. These consignments, which originally consisted of 3,927 bags in all, were repacked at the Port of Pondicherry, owing to damage to the gunnies, into 4,063 bags, before importation into British India. The consignments were imported into the Province of Madras by rail and carts from Pondicherry to Panruti by various instalments, the first of which consisted of 1,000 bags imported through the <ORG> station at Pondicherry on December 31, 1932. The remaining bags were imported in several instalments in the months of February, March and November, 1933, through the <ORG> stations at Pondicherry and Madalapet.

3. It appears that, prior to this occasion, the respondents had been in the habit of importing their betel-nuts at the port of Cuddalore in the Province of Madras, but, in the beginning of the year 1932, the <ORG> Collector at that port had assessed a similar consignment of 3,605 bags as boiled betel-nuts subject to duty on a tariff value, contrary to1 the respondents' contention that they should be assessed as raw betel-nuts, subject to duty ad valorem. In the hope that they might achieve an assessment in accordance with their contention, the respondents altered their place of importation in the case of the consignments here in question, but their disappointment in that respect has given rise to the present suit, in which they seek to challenge; the adverse decision in a civil suit.

4. On the arrival of the consignments at Pondicherry, the respondents wrote on December 27, 1932, to the Collector of <ORG>, Madras, asking to be allowed to import the goods as raw sliced betel-nuts and not as boiled. As they anticipated an increase in the ad valorem duty to come into effect at the beginning of 1933, they requested a telegraphic reply, which they received on December 29, 1932, saying, If you desire import before January first you must import goods and deposit duty calculated on higher tariff value Inspector will at time of taking deposit and passing goods take sealed samples for test and will also deliver to you other sealed samples to enable you to appeal if necessary.

The respondents thereupon imported 1,000 bags on December 31, 1932, and paid the higher duty under protest to the Assistant Inspector of <ORG> at Pondicherry Railway Chauki, samples being duly taken. After examination of the samples, the Assistant Collector of <ORG>, Madras, wrote to the respondents on February 28, 1933, as follows:-

I have to state that on examination of the samples from the consignment in question, it has been found that the betel-nuts imported are ' boiled', The 1,000 bags cleared on December 31, 1932, are therefore assessable at 37 1/2 per cent, on a tariff valuation of Rs. 23 per cwt. and the remaining bags, if cleared, will be liable to duty at 45 per cent on a tariff value of Rs. 16 per cwt.

An appeal by the respondents against this decision was dismissed by the Collector of <ORG> on June 20, 1933. The matter was taken to <ORG> in revision, but by their order dated August 13, 1933, <ORG> confirmed the Collector's decision. The present suit was filed on April 10, 1934.

6. In the suit the respondents seek to recover the excess amount collected from them by levying duty upon a tariff value of Rs. 23 per cwt. upon 1,000 bags and of Rs. 16 per cwt. upon the remainder, viz., 3,063 bags instead of levying duty upon the invoice value of Rs. 10-9-1 per cwt. In para. 14 of the plaint they state that the cause of action arose on August 18, 1933, when their petition for revision to <ORG> was thrown, out. Various issues were framed by the Subordinate Judge, but it was decided to determine in the first instance Issue No. 3-" Has this Court no jurisdiction to entertain' this suit and is the suit barred by the provisions of the Sea Customs Act ? " By a judgment delivered on March 30, 1937, the Subordinate Judge held that the Court had no jurisdiction to entertain the suit and dismissed the suit. An appeal was allowed by <ORG> on February 2, 1938, and the Subordinate Judge was directed to proceed to dispose of the suit on the merits. This appeal is from that decision.

7. While the imposition of the duties here in question is regulated by the Land Customs Act (Act XIX of 1924), the matter in issue arises under certain provisions of the Sea Customs Act (Act VIII of 1878) which are incorporated, subject to the necessary verbal modifications, by Section 9 of the Land Customs Act, and the schedule to the Act. The Section s of the Sea Customs Act which are material are contained in Chapter XVII of the Act, which is headed "Procedure relating to Offences, Appeals, &c," and which includes Section s 169 to 193. The material Section s are as follows:-

182. In every case, except the cases mentioned in Section 167, Nos. 26, 72 and 74 to 76 both inclusive, in which, under this Act, anything is liable to, confiscation or to increased rates of duty;

or any person is liable to a penalty, such confiscation, increased rate of duty or penalty may be adjudged-

(a) without limit, by a Deputy Commissioner or Deputy Collector of <ORG>, or a <ORG>-collector;

* * * * 186. The award of any confiscation, penalty or increased rate of duty under this Act by an officer of <ORG> shall not prevent the infliction of any punishment to which the person affected thereby is liable under any other law.

188. Any person deeming himself aggrieved by any decision or order passed by an officer of <ORG> under this Act may, within three months from the date of such decision or order, appeal therefrom to the Chief <ORG>-Authority, or, in such cases as <ORG> directs, to any officer of <ORG> not inferior in rank to a <ORG>-collector and empowered in that behalf by name or in virtue of his office by <ORG>.

Such authority or officer may thereupon make such further enquiry and pass such order as he thinks fit, confirming, altering or annulling the decision or order appeal ed against:

Provided that no such order in appeal shall have the effect of subjecting any person to any greater confiscation, penalty or rate of duty than has been adjudged against him in the original decision or order.

Every order passed in appeal under this Section shall, subject to the power of revision conferred by Section 191, be final.

189. Where the decision or order appealed against relates to any duty or penalty leviable in respect of any goods, the owner of such goods, if desirous of appealing against such decision or order, shall, pending the appeal, deposit in the hands of the <ORG>-collector at the port where the dispute arises the amount demanded by the officer passing such decision or order.

When delivery of such goods to the owner thereof is withheld merely by reason of such amount not being paid, the <ORG>-collector shall, upon such deposit being made, cause such goods to be delivered to such owner.

If upon any such appeal it is decided that the whole or any portion of such amount was not leviable in respect of such goods, the <ORG>-collector shall return such amount or portion (as the case may be) to the owner of such goods on demand by such owner.

190. If, upon consideration of the circumstances under which any penalty, increased rate of duty or confiscation has been adjudged under this Act by an officer of <ORG>, the Chief <ORG>-Authority is of opinion that such penalty, increased rate or confiscation ought to be remitted in whole or in part, or commuted, such Authority may remit the same or any portion thereof, or may, with the consent of the owner of any goods ordered to be confiscated, commute the order of confiscation to a penalty not exceeding the value of such goods.

191. <ORG> may, on the application of any person aggrieved by any decision or order passed under this Act by any officer of <ORG> or Chief <ORG>-Authority, and from which no appeal lies, reverse or modify such decision or order.

193. When a penalty or increased rate of duty is adjudged against any person under this Act by any officer of <ORG>, such officer, if such penalty or increased rate be not paid, may levy the same by sale of any goods of the said person which may be in his charge, or in the charge of any other officer of <ORG>....

Under Section 9 of the Land <ORG> Act, references to a Chief <ORG> Officer in the Sea <ORG> Act are to be deemed to refer to a Collector of Land <ORG>, references to a <ORG> Collector to a Lands <ORG> Officer, and references to Officers of <ORG> to Collectors of Land <ORG> or Land <ORG> Officers. Further, by Section 4 of the Central Board of Revenue Act (Act IV of 1924), the Governor-General in <ORG> was substituted for the Local Government in Section 191 of the Sea <ORG> Act.

8. At the hearing before the <ORG>, the appellant maintained that the decision of the Assistant Collector of <ORG>, dated February 28, 1933, was a " decision or order passed by an officer of <ORG> " within the meaning of Section 188 of the Sea <ORG> Act, and that the decision of the Collector of <ORG> on appeal therefrom, dated June 20, 1933, which had been confirmed on revision under Section 191, was final, and excluded the jurisdiction of the civil <ORG>. He maintained that the only right of challenge of a decision or order by an Officer of <ORG> was by an appeal under4 Section 188 and that the jurisdiction of the civil <ORG> was excluded. Alternatively, he maintained that the right of appeal conferred by Section 188 constituted a procedure which was alternative to procedure in the civil <ORG>, and that as the respondents, in their option, had chosen to proceed under Section 188, they were bound by that election, and were thus excluded from resort to the civil <ORG>.

9. There can be little doubt that adjudications as to confiscations, increased rates of duty or penalties made under the power conferred by Section 182 are decisions or orders within the meaning of Section 188, and the appellant submitted in the first place that the decision of the Assistant Collector in the present case was an adjudication as to increased rate of duty under Section 182. In their Lordships' opinion this contention is untenable, as the decision was as to the normal rate of duty, whereas an increased rate of duty connotes something in the nature of a penalty, an illustration of which is to be found in Section 167, No. 35, where goods in excess of the manifest or not corresponding with the specification are liable to confiscation or to be charged with such increased rates of duty as the Chief Officer of <ORG> directs.

10. The appellant next maintained that the decision or order referred to in Section 188 was not confined to adjudications under Section 182, but included decisions by an officer of <ORG> as to the rate of duty applicable to particular goods, which necessarily involved the determination of the particular category in the tariff classification into which the goods fell, and that, accordingly, the decision of the Assistant Collector in this case was a decision or order within the meaning of Section 188. The respondents, on the other hand, maintained that the decisions or orders referred to in Section 188 related only to adjudications under Section 182. This argument of the respondents was not mentioned by the Subordinate Judge, and his judgment does not suggest any doubt of the applicability of Section 188. But it was raised in <ORG>, who decided it in favour of the appellant.

11. Their Lordships are of opinion that <ORG> were right in deciding that Section 188 is applicable. The words " decision or order " are wide words, and they appear to be of a more general nature than the adjudications referred to in Section 182, which are also referred to as awards in Section 186. The difference of language in Section s which are in such close juxtaposition primarily suggests an intention to cover a wider area in Section 188. It is suggested that the heading of the chapter-" Procedure relating to Offences, Appeals, etc." -rather indicates that the appeals are correlated with the offences. Their Lordships are unable to draw any such inference. The chapter is one relating to procedure and not a chapter relating to offences; indeed, it might be suggested that if the provisions as to appeals were merely part of the procedure relating to offences, there would be no occasion for a separate mention of appeals in the heading., But, in their Lordships' opinion, the heading of the chapter is of no material assistance in the construction of Section 188.

12. In the next place, the proviso in Section 188, which is limited to adjudications under Section 182, does not, in the opinion of their Lordships, necessarily involve the narrower construction of the opening words of the Section . If the latter had expressly referred to any decision or order under Section 182 or any other Section in the Act, the proviso would have been drawn in exactly the same terms. But Section 189 uses terms naturally applicable to any duty leviable under any part of the Act.

13. Their Lordships agree with <ORG> that there is no reason for limiting the words " any decision or order passed. . .under this Act" in Section 188 to decisions or orders passed under Section 182. Their Lordships are unable to agree with the somewhat tentative opinion expressed by Sir <NAME> v. The Secretary of <ORG> for India (1879) I.L.R. 4 Mad. 344,353 which is referred to by <ORG>. That opinion was not relevant to the case before the learned Judge, which related to an illegal levy of duty under the Act of 1863.

14. The Sea Customs Act, 1878, was passed to consolidate and amend the law relating to the levy of Sea Customs-duties which was then regulated by the Consolidated Customs Act (Act VI of 1863), which was repealed by the Act of 1878. If there were any doubt as to the proper construction of Section 188 of the 1878 Act, it would undoubtedly be legitimate to consider the previous law which it was consolidating and amending, and their Lordships desire to add that their view already expressed as to the construction of Section 188 is confirmed by a consideration of the provisions of the Act of 1863. The material provisions of the latter Act are as follows:-

VI. If any dispute shall arise between any Officer of Customs, and any Master or Commander of a vessel, or importer, exporter, owner, or consignee of goods, or agent, or other person, in respect to any matter (not specially provided for by any law for the time being in force) relating to the importation, exportation, or ware-housing of any goods, or to the levy of any Duty or penalty thereon, or to any seizure or forfeiture thereof, the Chief Customs-authority of the Presidency or place in which such dispute shall have arisen shall settle the same, subject to an appeal to <ORG>, acting under the general instructions of the Governor-General of India in <ORG>.

CLXXXIV. If any dispute shall arise as to the proper rate of Duty payable in respect of any goods imported into, or exported from any Port in British India, the importer, exporter, owner, or consignee of such goods, or his agent, shall deposit in the handa of the Officer in charge of <ORG> at the Port of importation or exportation respectively, the amount of Duty demanded by such Officer, pending the decision of the Chief Customs-authority. Upon payment of such deposit and compliance with the provisions of this Act relating to the entry of such goods, the Officer in charge of <ORG> shall cause the goods to be delivered to such importer, exporter, owner, or consignee, or his agent.

CCXVIII. In every case in which, under this Act, any vessel, cart, or other means of conveyance or any horse or other animal is liable to confiscation; or any goods are liable to confiscation or to increased rates of Duty; or any person in charge of or owning a vessel, or landing or shipping goods, or passing them through <ORG>, is liable to a penalty, an Officer in charge of <ORG> may, unless it be otherwise provided in this or any other Act relating to the <ORG>, adjudge such confiscation, penalty, or increased rates of Duty.

CCXX. In any case adjudicated by an Officer of <ORG>, any party aggrieved by the award may appeal to the Chief <ORG>-authority of the Presidency or place, or to any superior Officer of <ORG> empowered in that behalf by <ORG>. It shall thereupon be lawful for such authority or superior Officer to make such further enquiry, and to pass such order as he shall think proper, confirming, altering, or annulling the original award. Provided that no such order in appeal shall have the effect of subjecting any person to any greater confiscation, penalty, or rates of Duty than shall have been adjudged against him in the original award.

CCXXI. The award of any confiscation, penalty, or increased rates of Duty under this Act by an Officer of <ORG> shall not interfere with any punishment to which the person affected thereby shall be liable under any other law.

CCXXIII. If, upon consideration of the circumstances under which any penalty or confiscation has been adjudged under this1 Act, by an Officer of <ORG> or by a Magistrate, the Chief <ORG>-authority of the' Presidency or place shall be of opinion that such penalty or confiscation ought to be remitted in whole or in part, or commuted, such Chief <ORG>-authority may remit the same or any portion thereof, or may commute any order of confiscation to a penalty not exceeding the value of the goods ordered to be confiscated.

Section 6 appears under the heading of " General Rules"; Section 184 under " Miscellaneous Provisions "; and the other four Section s under " Offences and Penalties." In their Lordships' opinion, it is clear that the provisions of Section 6 and of Section 220 are both now incorporated in Section 188 of the later Act, the subject-matter of the appeal being altered from an " award " to a " decision or order," and the heading of the chapter being altered to " Procedure relating to Offences, Appeals, etc." Section 184 of the 1863 Act is reproduced in Section 189, while Section 221 is reproduced as Section 186 of the 1878 Act, before Section 188, and Section 223 reappears as Section 190 of the later Act.

15. The decision of the Assistant Collector therefore; falls within the terms of Section 188 of the Sea <ORG> Act of 1878, and the respondents in fact acted on that view, and exercised the right of appeal conferred by that Section and by Section 191. It is now necessary to determine whether the order of the Collector of <ORG>, dated June 20, 1933, which dismissed the appeal under Section 188, and which was confirmed by the Governor-General in <ORG> on an application under Section 191, excludes the jurisdiction of the civil <ORG> to entertain a challenge of the merits of that decision. It is settled law that the exclusion of the jurisdiction of the civil <ORG> is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the civil <ORG> have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. Many of the cases referred to in the judgments below are of this nature, and are not relevant to the present case, in which there are no allegations of that nature.

16. Section 188 provides that "every order passed in appeal under this Section shall, subject to the power of revision conferred by Section 191, be final." By Section s 188 and 191 a precise and self-contained code of appeal is provided in regard to obligations which are created by the statute itself, and it enables the appeal to be carried to the supreme head of the executive government. It is difficult to conceive what further challenge of the order was intended to be excluded other than a challenge in the civil <ORG>.

17. Further, it is to be noted that the same finality clause applies equally to appeals against adjudications under Section 182 and to appeals against decisions or orders as to the rate of duty leviable under the tariff; their Lordships are unable to construe this clause differently according as it applies to these two classes of appeals, as apparently <ORG> were prepared to do. In their judgment <ORG> refer with approval to the unreported decision of <ORG> Trotter J. in C. S. No. 747 of 1920, in which he held that the suit, which challenged the adjudication of a fine under Section 182, was barred by Section 188, and the learned Judges add, " We think that the decision in that case is, if we may say so, not open to exception and it does not help the <ORG> in this case, because the Act of the <ORG> Authorities in that case was an adjudication." Later, the learned Judges rejected the argument that Section 188 only applied to decisions or orderspassed by <ORG> Authorities when acting under Section 182, and held that the opening words of Section 188 were not so limited. Nevertheless, they held, as regards the present case, that the finality clause was not so worded as to exclude the jurisdiction of the civil <ORG>. Their Lordships are unable to agree with this distinction.

18. Their Lordships are of opinion that in this case the jurisdiction of the civil <ORG> is excluded by the order of the Collector of <ORG> on the appeal under Section 188, and it is unnecessary to consider whether, prior to taking such appeal under Section 188 the respondents would have been entitled to resort to the civil <ORG>, or whether they would have been confined to the right of appeal under Section 188.

19. The determination of this question must rest on the terms of the particular statute which is under consideration, and decisions on other statutory provisions are not of material assistance, except in so far as general principles of construction are laid down. The main principles to be observed in the present case are to be found in the well-known judgment of <NAME> in <ORG> v. <NAME> (1859) 6 C. B. (N.S.) 336, 356, which was approved of in <ORG> in <NAME> v. <ORG> [1919] A.C. 368. The question is whether the present case falls under the third class stated by <NAME>, viz., where the statute creates a liability not existing atcommon law, and gives also a particular remedy for enforcing it ....Withrespect to that class it has always been held, that the party must adopt the form of remedy given by the statute.

20. It has been held that the jurisdiction of the civil Courts is excluded in three cases in which an appeal under Section 188 had been taken-C. S. No. 747 of 1920, already referred to, <CITATION> , which is referred to by <ORG>, and <CITATION> for India in Council  1 Cal. 257, Each of these cases related to an appeal against an adjudication under Section 182. In the case referred to in 71 M. L.J., Notes of Recent Cases, p. 40, <NAME> held that jurisdiction was not excluded in circumstances similar to the present case, except that there had been no appeal under Section 188, and, for the reasons already explained, their Lordships do not find it necessary to consider the question. Similarly, in the cases of <CITATION> for India (1932) L.R. 59 I.A. 258:s. c. 34 Bom. L.R. 1057 and <CITATION> for India (1937) L.R. 65 I.A. 32: s.c. 40 Bom. L.R. 269, no appeal had been taken under Section 188; the question of jurisdiction was not in issue, though in the former case an issue had been framed, but it was abandoned by the Advocate General. It was submitted on behalf of the respondents that an exclusion of the subject's right of resort to the civil Courts would be ultra vires of the Indian Legislature in view of the provisions of Section 32 of the Government of India Act, 1915, which re-enacted Section 65 of the Government of India Act of 1858, and reference was made to Secretary of <ORG> for <CITATION> (1912) L.R. 40 I.A. 48:s. c. 15 Bom. L.R. 27, which was a case of tortious trespass on land. But. in their Lordships' opinion, neither Section 32 nor the principleinvolved in the decision in <NAME>'s case affect the validity of an Act of the Indian Legislature which creates an obligation and provides an exclusive code for its determination; such an obligation is not covered by Sub-section (2) of Section 32.

21. On the whole matter, their Lordships are of opinion that the decision of the Subordinate Judge was correct, and they will humbly advise His Majesty that the appeal should be allowed, that the order of <ORG> should be set aside and that the decree of the Subordinate Judge should be restored. The appellant will have the costs of the appeal, and also his costs in <ORG>.