JUDGMENT <NAME>, J.

1. The suit which gives rise to these consolidated appeals was brought in <ORG> in its original civil jurisdiction, under the provisions of section 539 of Act XIV of 1882, for the appointment of trustees and the settlement of a scheme of management in respect of a moique, situated in the city of Rangoon. The plaintiffs in the action are five Mahommedan worshippers at the mosque, who trace their origin to a place called Rander, said to be a suburb of the city of Surat in the Bombay Presidency, and in the earlier stages of these proceedings they appear to have claimed it as a Randeria mosque. It is, however, conceded now that it is a public mosque dedicated to the performance of religious worship by all Sunni Mahommedans without restriction as to place of origin, and that it is commonly known as <ORG>.

2. To explain the contest between the parties it is necessary to give a short summary of the circumstances that have led to this unfortunate litigation. Like many other places in Burma> Rangoon is inhabited by a large number of Mahommedan emigrants from various parts of India who have domiciled themselves in the country for purposes of trade, and are generally known by the names of the towns or villages whence they originally came. For example, the plaintiffs, as already stated, derive their origin from Rander and, therefore, call themselves Randerias; whilst the larger community of Suratis or Soortees come either from the city or district of Surat. It is necessary to bear this in mind, as the mosque in question is sometimes called the Surati mosque. The Randerias, though trying to differentiate themselves from the others, form in reality a section of the Surati community. They are mostly Voras, and they all profess the Sunni doctrines.

3. It appears that the site of the present mosque was formerly occupied by a bamboo structure built in 1854 by one <NAME>, a native of Rander. it was dedicated to the same purpose, and bore the same name as the present masonry mosque. Divine worship was performed here by all Sunni Mahommedans until it was burnt down three years later, when <NAME> replaced it with a building made of wooden planks. This continued to be the public place of worship until 1872, when the masonry mosque was erected.

4. The land on which the mosque was first built appears to have been afterwards added to by purchases made by <NAME> or by his fellow-townsmen, who made the same over to him as the custodian of the mosque. In 1862 one <NAME>, a brother of <NAME>, and two persons of the names of <NAME> and <NAME>, obtained from the Government a grant in respect of certain other plots on the express trust " to build and maintain thereon a mosque or place of worship for and to the use of all persons professing the Sunni sect of the Mahommedan religion."

5. These lands were also added or attached to the existing mosque, and shops were built there to yield an income for its maintenance.

6. In 1864, <NAME> went on a pilgrimage to Mecca, leaving the management of the mosque in the hands of <NAME> and the two persons already mentioned. He returned to Rangoon in 1866, but never resumed his management of the mosque. At this time the person in charge was one <NAME>, who also is said to have been a native of Rander.

7. In 1870, the <ORG>, finding that no mosque had been built on the lands granted in 1862, and that on the contrary shops had been erected thereon, issued a notice on the grantees to show cause why those lands should not be resumed. A meeting was thereupon held, apparently at the instance of the Randerias, of all the Sunni Mahommedans entitled to worship at the mosque, and it was decided to buy outright from the <ORG> the land, and build on it a proper masonry structure suitable to the growing needs of the community. Although there is some dispute with regard to the contributions of the general body of Sunnis apart from the Randerias, it may be taken as fairly uncontroverted that the bulk of the fund was subscribed by the Randeria section of the worshippers. The conveyance was taken in the names of five persons, named respectively <NAME>, <NAME>, <NAME>', <NAME> and <NAME>, and these men in 1872, whilst the masonry mosque was in course of building, purported to create anew dedication.

8. The trust deed bears date the 16th March, 1872, and after reciting that it was made between the persons named above, of the one part, and one <NAME>, representing the general Sunni Mussulman community, of the other part, proceeds to declare that " the pieces or parcels of land upon a certain portion of which <ORG> is erected or is in the course of being built, together with the godowns attached thereto, are solely dedicated for the purpose of divine worship." It then goes on to provide inter alia that its management shall remain exclusively in the hands of the Randeria Jamaet (people or assembly.)

9. The five persons in whose names the conveyance stood and who had executed the trust deed appear to have carried on the management for several years; in course of time some dropped out and others came in as trustees, How these men were placed in charge of the management of the mosque is not clear, for apparently no meeting of <ORG> was held until 1894, and none between 1894 and 1906, nor in fact had the Randerias any "organised association" with written rules for the purpose of giving effect to the wishes of their section of the community.

10. Matters remained in this condition until 1908, when disputes arose regarding the validity of the election of one <NAME> as a trustee in place of another <NAME>, who had died the year before. It was in consequence of the quarrels among the <NAME>s themselves in connection with the election or appointment of this man, that the present suit was launched in <ORG>. The original defendants to the action were four persons who were actually managing the mosque as trustees, but the validity of whose appointment as such was impugned by the plaintiffs. In addition three others were joined as defendants ostensibly to represent the <NAME> section, but in reality, as the trustee defendants charge, to represent the plaintiffs' faction.

11. On the institution of the suit notices were issued by the <ORG> under section 30 of the Civil Procedure Code to all persons entitled to worship at the mosque. Thereupon defendants 12 and 13, representing the general body of Sunni worshippers, and defendants 8 to n claiming to represent the Surati community, and 14 to 17 the other Randerias appeared and applied to be joined as parties. Each set of defendants has filed a separate defence. Although the trustee defendants deny the plaintiffs' allegation that the mosque in question is a Randeria mosque, and affirm the validity of their and <NAME> appointment as trustees, they associate themselves with the plaintiffs and their <ORG> co-defendants in claiming that the right of management of the mosque belongs exclusively to their party. And they ask that the scheme, if any is to be framed, should be framed on that asis.

12. The defendants 12 and 13, who represent the general body of worshippers, controvert in substance the right of the Randerias to a monopoly of the management as opposed to the whole nature of the trust j and they claim that as the mosque is dedicated to the performance of public worship by all Mahommedans of the Sunni persuasion, now that a scheme is proposed to be settled under the direction of the <ORG> they should be allowed a voice in its administration.

13. The suit proceeded to trial before Mr. Justice <NAME>, and the whole dispute centred round two points, viz:-

1. The effect of the trust deed of 1872, and

2. Whether the Randerias should or should not have the sole and exclusive charge and management of the mosque.

14. The <NAME> rested their case on the trust deed of 1872; they contended that it created a new trust and that the founders, namely, the five persons in whose 'names the land had been purchased from the <ORG>, were entitled to provide that the management should remain, exclusively in the hands of their own section of the community. The learned trial Judge states their contentions in the following terms;-

It is urged that the original mosque was created by a Randeria; that the original grant was revoked and the lands sold outright to Randerias, that they thus became the creators of the trust and were at liberty to make any lawful condition they pleased as to the management of the trust.

15. And his decision is expressed in these words;-

The position in 1871, then, was that the five vendees became the absolute and untrammelled owners of these two plots and could do with them as they pleased ... They became the owners of the mosque, shops and lands, and created a trust of them. It was undoubtedly open to them to manage the trust themselves or to lay down the manner in which it was to be managed and this they did in Exhibit C.

16. He accordingly came to the conclusion that the Randeria party were exclusively entitled to the management of the mosque.

17. On appeal by the respondents in the first and second appeals respectively, the learned Judges of <ORG>, differing from the Trial Judge, held in substance that the lands which were purchased by or in the names of the five persons in 1871 were acquired by them as trustees for the purposes of the existing mosque and subject to the trust therefor; and that nothing that took place in 1871 or 1872 had the effect of cancelling, or could in law cancel, the original trust; and that as the original trust was for the benefit of all persons " professing the Sunni sect of the Mahommedan religion," they thought that " all Sunni Mahommedans were entitled to a voice and control of <ORG> of Rangoon."

18. The plaintiffs and the trustee defendants have appealed to His Majesty in Council, and the same contention that was put forward in the <ORG> below, based on the document of 1872, has been urged on their behalf. It has further been contended that under the Mahommedan law the <ORG> has no discretion in the matter and that it must give effect to the rule laid down by the founder in all matters relating to the appointment and succession of trustees or mutwallees. Their Lordships cannot help thinking that the extreme proposition urged on behalf of the appellants is based on a misconception. The Mussulman law like the English law draws a wide distinction between public and private trusts. Generally speaking, in case of a wakf or trust created for specific individuals or a determinate body Of individuals, the <NAME>, whose place in the British Indian system is taken by the Civil <ORG>, has in carrying the trust into execution to give effect so far as possible to the expressed wishes of the founder. With respect, however, to public religious or charitable trusts, of which a public mosque is a common and well-known example, the <NAME>'s discretion is very wide. He may not depart from the intentions of the founder or from any rule fixed by him as to the objects of the benefaction; but as regards management which must be governed by circumstances he has complete discretion. He may defer to the wishes of the founder so far as they are conformable to changed conditions and circumstances, but his primary duty is to consider the interests of the general body of the public for whose benefit the trust is created. He may in his judicial -discretion vary any rule of management which he may find either not practicable or not in the best interests of the institution.

19. Illustrations of this rule are to be found in almost every work on Mussulman law. And the authorities lay down that, '' were the wakif (the founder) to make a condition that the King or <NAME> should not interfere in the management of the wakf, still the Kizi will have his superintendence over it, for his supervision is above everything."

20. Their Lordships agree with <ORG> that the transactions which took place in 1871 and 1872 in no way affected the existing trust, and that the trust deed of 1872 did not create a new dedication; the mosque remained as heretofore a public mosque, dedicated to the performance of worship by all Sunni Mahommedans as originally founded.

21. In their Lordships' opinion, the real point in issue in the case, owing probably to the nature of the pleadings, has to some extent been missed by the <ORG> in India. It has been treated as a question involving the determination of conflicting rights rather than a consideration of the best method for fully and effectively carrying out the purpose for which the trust was created. The suit is brought under section 539 of the Code, which vests a very wide discretion in the <ORG>. It declares (omitting the parts not material to this case) that-

whenever the direction of the <ORG> is deemed necessary for the administration of any express or constructive trust created for public, charitable, or religious purposes, the Advocate-General, acting ex officio, or two or more persons having a direct interest in the trust and having obtained the consent in writing of the Advocate General, may institute a suit in the High <ORG>, or the District <ORG> within the local limits of whose civil jurisdiction the whole or any part of the subject matter of the trust is situate, to obtain a decree-

(a) appointing new trustees under the trust;

(e) settling a scheme for its management;

or granting such further or other relief as the nature of the case may require.

22. In giving effect to the provisions of the section and in appointing new trustees and fettling a scheme, the <ORG> is entitled to take into consideration not merely the wishes of the founder, so far as they can be ascertained, but also the past history of the institution, and the way in which the management has been carried on heretofore, in conjunction with other existing conditions that may have grown up since its foundation. It has also the power of giving any directions and laying down any rules which might facilitate the work of management, and, if necessary, the appointment of trustees in the future.

23. In the present case, <NAME>, although he was assisted by several of his compatriots in acquiring the land on which the bamboo <ORG> was built, was to all intents and purposes its original founder; in 1857, when the bamboo structure was burned down, he. replaced it with a plank building; he and his Kanderia fellow-townsmen held the mutwalleeship until 1871. Since that date also the management has been carried on by people belonging to <ORG>. In 1862, the lands were purchased with money supplied by them; and in 1871 the bulk of the money appears to have come from the same source. It is not alleged-that they have mismanaged the trust or committed any dereliction of duty, or tried to introduce innovations in the services, or otherwise interfered with the rights of the general body of worshippers. In these circumstances it seems to their Lordships, in the exercise of the discretion which the <NAME> law vests in the Kazi, that the <ORG>ia section of the worshippers, all other conditions being equal, are preferably entitled to the mutwalleeship of the <ORG>. With regard to the case of <NAME> v. <NAME> (1908) L.R. 35 I. A. 151, which has been relied upon on behalf of the respondents, their Lordships deem it sufficient to say that the facts to which they have referred differentiate it -widely from the present case.

24. The present case, however, in their Lordships' opinion, illustrates the mischief of leaving the power of appointing or electing trustees in the hands of an indeterminate and necessarily fluctuating body of people, whether they call themselves Punchayet or Jamaet. ' In order to avoid so far as possible a recurrence of the trouble that has brought about this long-drawn litigation, their Lordships think it desirable, in the interests of the institution which form the primary matter for consideration, that the appointment of future trustees should be entrusted to a committee of the worshippers the composition of which should be in the discretion of the Judge, with due regard to local conditions and needs, subject to the provision that, so long as circumstances do not vary, a majority of such committee should be Randerias; and that in settling the scheme the Judge should lay down rules for their guidance in the discharge of any supervisitorial functions that it may appear necessary to confide to them and for filling up vacancies on their body subject to his control,

25. Their Lordships are accordingly of opinion that the orders of <ORG> should be discharged and that the case should be remitted with the following declaration and directions to <ORG> to deal finally with the matter: That all other conditions being equal, the Randeria section of the worshippers are preferably entitled to manage and act as trustees of <ORG> of Rangoon; that the appointment of future trustees should be entrusted to a committee of the worshippers, the composition of which committee should be in the discretion of the <ORG>, with due regard to local needs and conditions, subject to the provision that, so long as circumstances do not vary, a majority of such committee should be Randerias; and that in settling the scheme the <ORG> should lay down rules for the guidance of the committee in the discharge of any supervisorial functions that it may appear necessary to confide to them, and for filling up vacancies on their body subject to its control.

26. As regards the costs in the <ORG> below, the trustee-defendants will have their costs out of the funds of the institution; the rest of the parties will bear their own costs.

27. The parties will bear their own costs of these appeals.

28. And their Lordships will humbly advise His Majesty accordingly.


CASE NO.: Appeal (civil) 3396 of 2001 PETITIONER: <ORG> Staff Union Madras RESPONDENT: <ORG>. DATE OF JUDGMENT: 15/09/2005 BENCH: ARIJIT PASAYAT & H. K. SEMA JUDGMENT:

J U D G M E N T ARIJIT PASAYAT, J.

Challenge in this Appeal is to judgment of a Division Bench of <ORG> holding that customary bonus was not payable by <ORG> (in short the '<ORG>') after <ORG>ing Laws (Amendment) Act, 1984 (Central Act No. 64 of 1984) (in short the ' Amendment Act ') was enacted. Appellant has questioned constitutional validity of the said amendment before the <ORG> by filing a writ petition which was dismissed.

Factual position which is almost undisputed is as follows:-

By the Amendment Act , State Bank of India Act , 1955 (in short the ' State Bank Act ') and State Bank of India (Subsidiary Banks) Act , 1959 (in short the ' Subsidiary Act ') and Banking Companies (Acquisition and Transfer of Undertakings) Act s, 1970 and the Banking Companies (Acquisition and Transfer of Undertakings) Act , 1980 (in short 'the Undertakings Act s') were amended.

By that amending Act, a new Section 43-A comprising of three sub sections (1), (2) and (3) and marginal heading "Bonus" was introduced in the State Bank Act . The said Section reads as under:-

"(1) No Officer, Adviser or other Employee (other than an employee within the meaning of Clause (13) of Section 2 of the Payment of Bonus Act, 1965  of <ORG> shall be entitled to be paid any bonus.

(2) No employee of <ORG>, being an employee within the meaning of Clause (13) of Section 2 of the Payment of Bonus Act, 1965 , shall be entitled to be paid any bonus except in accordance with the provisions of that Act.

(3) The provisions of this Section shall have effect notwithstanding any judgment, decree or order of any <ORG>, <ORG> or other authority and notwithstanding anything contained in any other provision of this Act or in the Industrial Disputes Act , 1947 , or any other law for the time being in force or any practice usage or custom or any contract, agreement, settlement, award or other instrument."

In the Subsidiary Act , a new Section 50A was introduced in identical language. Similar provisions numbered as Section 12-A were introduced in the Banking Undertakings Act s.

The Statement of Objects and Reasons, which accompanied the Bill which later became the Amending Act , reads thus:

"In an award notified as 14.1.1984, <ORG>, Madras held that the employees of <ORG> covered by the award should be paid bonus at the rate of one month's substantive pay every half year on the ground that this has also along been the custom and practice. A writ petition filed against this award is pending in <ORG>.

All public Sector banks including <ORG> come under the purview of the Payment of Bonus Act , 1965, and the intention is that no bonus other than what is required to be paid under the Payment of Bonus Act , 1965, shall be paid to the employee of <ORG> or of any other pubic sector bank. It is proposed to make express provisions in this behalf in <ORG> Act , 1955 and the enactment relating to the other public sector banks.

The Bill seeks to achieve the above objects."

That award of <ORG> was challenged by the Management in a writ petition filed in <ORG> being Writ Petition No.1273 of 1984. It was during the pendency of that petition in <ORG>, that the State <ORG> Act came to be amended by introducing Section 43-A in that Act. On 24.11.1986, the Writ Petition filed by the <ORG> was dismissed. The matter was not further agitated, and the award attained finality.

Appellant's primary stand before <ORG> was that the Amendment Act was unconstitutional as it merely intended to nullify a judicial decision which <ORG> had no competence to do. Other contentions were to the effect that an award passed under the Industrial Disputes Act , 1947 (in short 'the Industrial Act ') is entitled to greater recognition as in the case of conflict between the provisions of General Law i.e. State <ORG> Act and the Industrial Act the latter Act must prevail. The bonus which was directed to be paid was in the nature of deferred wages and the impugned legislation had the effect of freezing wages. <ORG> is not vested with the power to reduce the wages and therefore the legislation is ultra vires. Effect of an award under the Industrial Act cannot be wiped out except in the manner provided under the Industrial Act and since in the instant case that has not been done, the award was binding on the parties concerned. The bonus being a customary bonus was peculiar to the employees of the <ORG> and mere fact that other public sector banks were not being paid such bonus is of really no consequence. Stand that financial implications were enormous is also of no consequence. The Union of India and the <ORG> took the stand that the Amendment Act was a valid piece of legislation. It was not merely intended to invalidate an award by acting as <ORG>, and it is not a case of any judicial power being usurped by the legislation. <ORG> negatived the contentions of the appellants and dismissed the Writ Petition.

The points urged before <ORG> was reiterated by learned counsel for the appellant. Reference was made to a decision of this Court in <CITATION> (AIR 1965 SCC 1499) to highlight the basic features of customary bonus.

It was submitted in the case of officers of the <ORG> that the quantum representing bonus merged with the basic pay and consequential increase in Dearness Allowance and superannuation benefits were granted. That being so, bonus is nothing but deferred wage. Continued payment of bonus made it a condition of service and the same could not have been altered without following the provisions of Section 9A of the Act. Customary bonus is one which is paid dehors the bonus paid under the Payment of Bonus Act , 1965 (in short the ' Bonus Act '). Customary bonus is untouched by the Bonus Act . The Industrial Act is a special Act qua the State <ORG> Act . Issues relating to continuance of service and disputes relating thereof are covered by the Industrial Act . While some of the aspects can be taken to be covered by the State <ORG> Act , non compliance with the special Act i.e. Industrial Act rendered the Amendment Act invalid. The intention of the Amendment Act was to invalidate the award as is evident from the Statement of Objects and Reasons of the Amendment Act. Customary bonus is not profit linked. Amendment even if accepted to be valid can only have prospective effect.

In response, learned counsel for the <ORG> and <ORG> submitted that the payment of customary bonus was creating different yardsticks for different public sector banks. The award was challenged by the <ORG> in a Writ Petition. During the pendency of the writ petition, the amendment was enacted. Unfortunately <ORG> did not take note of the Amendment Act and Custom even if it acquires a force of law, can be changed as there is no fundamental right involved in any custom. Bonus cannot be called deferred wages and even if it is conceded for the sake of argument that the payment of customary bonus was a condition of service, after insertion of Section 43A by the Amendment Act the same has no operation. The provision brings about uniformity. The payments were related to profits and they were not uniform, so in that sense it was not really be a condition of service or a deferred wage. <ORG> has also dealt with the Special Act and the deferred wages concept. The Amendment Act really brought in a curative provision, and no retrospective effect has been given to the Amendment Act . Section 9A of the Industrial Act has no application as the <ORG> has the power to legislate on that aspect. A bare look at the impugned provision makes it clear that it is not a case of legislature by mere declaration or without anything more, overriding a judicial decision. On the other hand it is a case of rendering a judicial decision ineffective by enacting a valid law within legislative field of the legislature. Merely because a reference has been made to the award in the Statement of Objects and Reasons, that cannot in any way affect the plain intention in enacting the law under challenge and it is not correct to say that the intention was to declare the decision of <ORG> as invalid and as such judicial power has been usurped by legislation.

Following four circumstances have to be fulfilled in order to be entitled to payment of customary or traditional bonus, as was noted in <CITATION> (AIR 1959 SC 1151) and in Vegetable Products case (supra):

"(i) that the payment has been made over an unbroken series of years;

(ii) that it has been for a sufficiently long period, the period has to be longer than in the case of an implied term of employment;

(iii) that it has been paid even in years of loss and did not depend on the earning of profits; and

(iv) that the payment has been made at a uniform rate throughout to justify an inference that the payment at such and such rate had become customary and traditional in the particular concern."

Learned counsel for the appellant submitted that considering the nature of customary bonus, the Amendment Act was really taking away a right conferred. This Court in <CITATION> (AIR 1985 SC 1010) observed as follows:-

"There is one other aspect of the claim now put forward, which cannot be lost sight of, which affords an additional reason to reject the contention of the appellants. The respondent is a nationalized bank. Roughly in all there are 25 nationalised banks. The concept of any customary bonus is unknown to nationalized banks. All the nationalized banks are wholly owned Undertakings of <ORG>. In the matter of bonus, the employees of all the nationalized banks must be dealt with on a common denominator. If therefore the contention of the appellants were to prevail, the employees of the respondent, which is only one amongst many nationalized banks, would enjoy an undeserved advantage compared to their counterparts in other nationalized banks and even in the other branches of the respondent bank and may become a cause of disharmony and inequality. Therefore, in larger public interest also, the demand for customary bonus otherwise found to be untenable, must be negatived."

(Underlined for emphasis) It is a cardinal rule of interpretation that Objects and Reasons of a Statute is to be looked into as an extrinsic aid to find out legislative intent only when the meaning of the statute by its ordinary language is obscure or ambiguous. But if the words used in a statute are clear and unambiguous then the statute itself declares the intention of the legislature and in such a case, it would not be permissible for a court to interpret the Statute by examining the Objects and Reasons for the Statute in question.(See: <CITATION> AIR 1997 SC 3127).

The smooth balance built with delicacy must always be maintained, and in the anxiety to safeguard judicial power, it is unnecessary to be over-zealous and conjure up incursion into the judicial preserve to invalidate the valid law competently made. (see: <CITATION> 1996(7) SCC 637).

<CITATION> (AIR 1967 SC 691) it was observed as follows:

"It is true that by the impugned legislation, certain principles declared by this Court e.g. in <CITATION> , 1959 SCR 12: AIR 1958 SC 578) in respect of grant of bonus were modified, but on that account it cannot be said that the legislation operates as fraud on the Constitution or is a colourable exercise of legislative power. <ORG> has normally power within the frame-work of the Constitution to enact legislation which modified principles enunciated by this Court as applicable to the determination of any dispute, and by exercising that power, the <ORG> does not perpetrate fraud on the Constitution. An enactment may be charged as colourable, and on that account valid, only if it be found that the legislature has by enacting it trespassed upon a field outside its competence."

In the Indian Aluminium case (supra) in paragraph 56 certain principles have been set out. Those principles inter alia include the principles that the <ORG> in its anxiety to safeguard judicial power must not be over- zealous and conjure up incursion into the judicial preserve invalidating the valid law competently made; the <ORG> should scan the law to find out : (a) whether the vice pointed out by the court and invalidity suffered by previous law is cured after complying with the legal and constitutional requirements; (b) whether the <ORG> has competence to validate the law; (c) whether such validation is consistent with the rights guaranteed in Part III of the Constitution. So far as the legislature is concerned, it cannot by mere declaration, without anything more, overrule, revise, or override a judicial decision. It may, however, render judicial decision ineffective by enacting valid law on the topic within its legislative field fundamentally altering or changing its character retrospectively. The changed or altered conditions should be such that the previous decision would not have been rendered by the <ORG>, if those altered or changed conditions had existed at the time of declaring the law as invalid.

At this juncture, we may also take note of what was stated by <NAME>, CJI in the case of <CITATION> (1969 (2) SCC 283):

"A <ORG>'s decision must always bind unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances."

The principle was reiterated in <CITATION> . (1997 (1) SCC 326).

As was noted by <ORG> of this Court in <CITATION> . (1997 (6) SCC 623), once a person joins service under the <ORG>, the relationship between him and the <ORG> is in the nature of a status rather than contractual and the terms of his service while he is in employment, are governed by statute or statutory rules, which may be altered without the consent of the employees. This effect of a non-obstante clause and validating Act has been examined by this Court from time to time. Reference has already been made to the decision in <ORG> (supra). The view expressed by <NAME>, C.J.I. has been reiterated in <NAME> case (supra).

The decision in <CITATION> (1978 (2) SCC 50) which was one of the major planks of arguments before <ORG> and this Court was explained in the last named case. It was rendered in the different factual background. This was categorically pointed out and the decision was explained in the said case.

Every sovereign legislature possesses the right to make retrospective legislation. The power to make laws includes power to give it retrospective effect. Craies on Statute Law (7th Edn.) at p. 387 defines retrospective statutes in the following words:

"A statute is to be deemed to be retrospective, which takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect to transactions or considerations already past."

Judicial Dictionary (13th Edn.) K.J. Aiyar, <ORG>, p. 857, states that the word "retrospective" when used with reference to an enactment may mean (i) affecting an existing contract; or (ii) reopening up of past, closed and completed transaction; or (iii) affecting accrued rights and remedies; or (iv) affecting procedure. Words and Phrases, Permanent Edn., Vol. 37-A, pp. 224-25, defines a "retrospective or retroactive law" as one which takes away or impairs vested or accrued rights acquired under existing laws. A retroactive law takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transaction or considerations already past.

In Advanced Law Lexicon by <NAME> (3rd Edition, 2005) the expressions "retroactive" and "retrospective" have been defined as follows at page 4124 Vol.4) "Retroactive- Acting backward; affecting what is past. (Of a statute, ruling, etc.) extending in scope or effect to matters that have occurred in the past. - Also termed retrospective. (<NAME>, 7th Edn. 1999) 'Retroactivity' is a term often used by lawyers but rarely defined. On analysis it soon becomes apparent, moreover, that it is used to cover at least two distinct concepts. The first, which may be called 'true retroactivity', consists in the application of a new rule of law to an act or transaction which was completed before the rule was promulgated. The second concept, which will be referred to as 'quasi-retroactivity', occurs when a new rule of law is applied to an act or transaction in the process of completion......The foundation of these concepts is the distinction between completed and pending transactions...." (<NAME>, The Foundations of European Community Law 129 (1981).

Retrospective- Looking back; contemplating what is past.

Having operation from a past time.

'Retrospective' is somewhat ambiguous and that good deal of confusion has been caused by the fact that it is used in more senses than one. In general however the <ORG> regards as retrospective any statute which operates on cases or facts coming into existence before its commencement in the sense that it affects even if for the future only the character or consequences of transactions previously entered into or of other past conduct. Thus, a statute is not retrospective merely because it affects existing rights; nor is it retrospective merely because a part of the requisite for its action is drawn from a time and antecedents to its passing. (Vol.44 Halsbury's Laws of England, Fourth Edition, page 570 para 921)."

The question of retrospectively affecting the award is factually of academic interest. It was admitted before <ORG> that all amount payable under the award for the prior period has been paid.

In Harvard Law Review, Vol. 73, p. 692 it was observed that "it is necessary that the legislature should be able to cure inadvertent defects in statutes or their administration by making what has been aptly called 'small repairs'. Moreover, the individual who claims that a vested right has arisen from the defect is seeking a windfall since had the legislature's or administrator's action had the effect it was intended to and could have had, no such right would have arisen. Thus the interest in the retroactive curing of such a defect in the administration of government outweighs the individual's interest in benefiting from the defect".

The above passage was quoted with approval by <ORG> this Court in the case of The Asstt. <CITATION> . (1969 (2) SCC 55). In considering the question as to whether the legislative power to amend a provision with retrospective operation has been reasonably exercised or not, various factors have to be considered. It was observed in the case of <NAME> v. <NAME> Realty Co. (284 N.W. 635) - as noted in Words and Phrases, Permanent Edn., Vol.37-A, p. 2250 that:

"The constitutional prohibition of the passage of 'retroactive laws' refers only to retroactive laws that injuriously affect some substantial or vested right, and does not refer to those remedies adopted by a legislative body for the purpose of providing a rule to secure for its citizens the enjoyment of some natural right, equitable and just in itself, but which they were not able to enforce on account of defects in the law or its omission to provide the relief necessary to secure such right."

Craies on Statute Law (7th Edn.) at p. 396 observes that:

"If a statute is passed for the purpose of protecting the public against some evil or abuse, it may be allowed to operate retrospectively, although by such operation it will deprive some person or persons of a vested right."

Thus public interest at large is one of the relevant considerations in determining the constitutional validity of a retrospective legislation.

The above position was elaborately noted in <CITATION> . (2004 (12) SCC 588).

Curative Statutes are by their very nature intended to operate upon and affect past transactions. Curative and validating statutes operate on conditions already existing and are therefore wholly retrospective and can have no retrospective operation.

<NAME> in <NAME> v. <NAME> (1779 (26) E.R. 751) held that "declaratory do not prove that law was otherwise before, but rather the reverse".

There is no quarrel and in fact in our opinion rightly that legislature cannot by a mere declaration, without anything more, directly overrule, reverse or override a judicial decision. However, it may, at any time in exercise of the plenary powers conferred on it by the Constitution render a judicial decision ineffective by enacting a valid law on a topic within its legislative field, fundamentally altering or changing with retrospective, curative or neutralizing effect the condition on which such decision is based (see: I.N. Saxena etc. v. <ORG> (1976 (4) SCC 750).

As noted in <CITATION> (1975 (suppl.) SCC 1) rendering ineffective of judgments or orders of competent Courts or Tribunals by changing their basis by legislative enactment is a well known pattern of all validating Acts. Such validating legislation which removes the causes for ineffectiveness or invalidity of actions or proceedings is not an encroachment on judicial power. There is a distinction between encroachment on the judicial power and nullification of the effect of a judicial decision by changing the law retrospectively. As noted by this Court in <CITATION> . (1973 (3) SCC 585) the former is outside the competence of the legislature but the latter is within its permissible limits.

It has to be noted that the legislature, as a body, cannot be accused of having passed a law for extraneous purpose. If no reasons are stated as appear from the provisions enacted by it, its reasons for passing a law are those stated in the Objects and Reasons. Even assuming that the <ORG>, in a given case, has an ulterior motive in moving a legislation, that motive cannot render the passing of the law mala fide. This kind of "Transferred malice" is unknown in the field of legislation. ( <CITATION> . (AIR 1985 SC 551) and <CITATION> (AIR 1995 SC 1655).

Learned counsel for the appellant submitted that vested rights cannot be taken away by the legislation by way of retrospective legislation. The plea is without substance. Whenever any amendment is brought in force retrospectively or any provision of the Act is deleted retrospectively, in this process rights of some are bound to be effective one way or the other. In every case the exercise by legislature by introducing a new provision or deleting an existing provision with retrospective effect per se does not amount to violation of Article 14 of the Constitution. The legislature can change, as observed by this <ORG> in Cauvery Water Disputes <ORG>, Re (1993 Supp. (1) SCC 96 (II)), the basis on which a decision is given by the <ORG> and thus change the law in general, which will affect a class of persons and events at large. It cannot, however, set aside an individual decision inter parties and affect their rights and liabilities alone. Such an act on the part of the legislature amounts to exercising the judicial power by the <ORG> and to function as an appellate <ORG> or <ORG>, which is against the concept of separation of powers.

The amendment made by the impugned enactments is to the State <ORG> Act and other statutes relating to some other <ORG>s. The <ORG> undoubtedly has power in terms of Section 7(1) of the State <ORG> Act to change the conditions of service of those of its employees, who had earlier served with Imperial <ORG> of India. By enforcement of the Act, the undertaking of Imperial <ORG> of India was transferred to the <ORG>. Employees of erstwhile Imperial <ORG> of India cannot take the stand that they have an unalterable right in their terms and conditions of employment. So far as other employees are concerned, Section 43 of the Act empowers the <ORG> to determine terms and conditions of their service.

The <ORG> has power to legislate on the topic of bonus and it is not precluded from legislating on that topic, other than the Bonus Act . The mere fact that an award has been made under the Industrial Act cannot have the effect of preventing the <ORG> for all times to come from amending the law on the foundation of which the award was made. This of course is subject to same being not inconsistent with provision of Part III of the Constitution; and also being within the legislative competence of the <ORG>.

As noted above, the impugned Act did not merely declare the <ORG>'s award inoperative. There is nothing to show that the <ORG> intended to exercise appellate powers over the <ORG> or <ORG> by enacting the amending Act. The said Act in clear and unambiguous terms prohibits the grant of bonus to the employees of public Sector Banks, except in accordance with the Bonus Act , and also limits such payment only to those eligible under the Act.

The amended provision operates notwithstanding anything contained in any other law, including the Industrial Act , and similarly notwithstanding anything contained in any judgment, decree or order of any <ORG> or <ORG>.

In view of what has been stated above, the conclusion is inevitable that <ORG> judgment does not suffer from any infirmity to warrant interference. The appeal is accordingly dismissed with no orders as to costs.


JUDGMENT

1. The order from which this appeal has been preferred was made by <ORG> J. discharging an interim receiver appointed ex parte on the plaintiff's application pending her suit laid on the basis of an indenture of hypothecation. The order amounts to one rejecting an application to appoint a receiver. A preliminary objection has been taken to the competency of the appeal.

2. Under Clause 15, Letters Patent, there in unqualified right of appeal from the judgment of a single Judge on the Original Side. As regards the meaning of the word judgment as used in the clause, Courts in this, country have taken different views. So far as this Court is concerned the leading case on the point is that of Justices of the Peace of Calcutta v. <ORG> (1872) 17 WR 364, in which. <NAME> said, We think 'judgment' in C1.15 means a decision which affects the merits of the question between the parties by determining some right or liability. It may be final, or preliminary or interlocutory, the difference between them being that a final judgment determines the whole cause or suit, and a preliminary or interlocutory judgment determines only a part of it, leaving other matters to be determined.

3. In more decisions than one of this <ORG> this definition of 'judgment' given by <NAME>, C.J. has been described as classical; and yet in a long course of decisions this <ORG> has repeatedly expressed the view that the definition is not absolutely exhaustive <CITATION> (1901) 5 CWN 781, <CITATION> 1922 Cal 172, <CITATION> 1916 Cal 361, <NAME> v. Chattu Gope 1918 Cal 850 and <CITATION> 1918 Cal 858. Treating this definition as not of an inflexing character and yet not expressly purporting to extend it, the <ORG> has in numerous cases emphasized the necessity of scrutinizing the nature of the decision in each particular case in order to find out whether the decision amounts to a 'judgment' within the meaning of the clause. It may be observed that <NAME>, C.J. himself in he case of <CITATION> (1874) 21 WR 303, held that an appeal lies under the clause from an order refusing to grant leave to the plaintiff to sue under Clause 12, Letters Patent, giving as his reason:

It is not a mere formal order or an order merely regulating the procedure in the suit, but one that has the effect of giving a jurisdiction to the <ORG> which it otherwise would not have. And it may fairly be said to determine some right between them, viz. to sue in a particular <ORG> and to compel the defendants who are not within its jurisdiction to come in and defend the suit, or if they do not, to make them liable to have a decree passed against them in their absence.

4. This reason, it must be admitted, would hardly bring the case within the definition given in Justices of the Peace of Calcutta v. <ORG> (1872) 17 WR 364, because it is perfectly clear that the "right or liability" contemplated by the definition in that case must mean some right or liability which was the subject-matter of the controversy in the suit or proceeding. And we must respectfully dissent from those decisions which have held or have proceeded on the supposition that the expression "right or liability" in that case was not meant to be restricted to the controversy in the suit or the proceeding itself (e.g. <NAME> v. <NAME> 1919 Cal 667. In <NAME> v. <NAME>. (1881) 6 Cal 594 an order refusing to transmit for execution an order of His Majesty in Council was held to be open to appeal under the clause. This decision was affirmed by <ORG> on the ground that it came within the meaning of the word "judgment" in that clause because the transmission of the record was not a merely ministerial proceeding, and the Judge who had made the order had in fact exercised a judicial discretion and had come to a decision of great importance which, if it remained, would entirely conclude any rights of the decree-holder for an execution in the suit: <NAME> v. <NAME> (1883) 9 Cal 482. It is not impossible to bring this reasoning within the definition in Justices of the Peace of Calcutta v. <ORG> (1872) 17 WR 364, but in some cases an attempt has been made to treat it as the foundation for a doctrine that where a question of jurisdiction is involved there is a right of appeal, e.g. <CITATION> 1918 Cal 858. This view however is one with which we do not agree. <NAME>, C.J. in the case of <NAME> v. <NAME> (1879) 4 Cal 531 laid down a definition in these words:

I think the word 'judgment' means a judgment or decree which decides the case one way or the other in its entirety, and that it does not mean a decision or order of an interlocutory character which merely decides some isolated point not affecting the merits or the result of the entire suit.

5. It would seem that orders excluded by this definition from the category of judgments would also be excluded by the definition of Justices of the Peace of Calcutta v. <ORG> (1872) 17 WR 364, but that this definition would bring within its scope orders which would put in peril the finality of a decision in favour of a party as "affecting the merits or the result of the entire suit a view which has been doubted in the decision of this Court in the case of <CITATION> 1929 Cal 214. In the last mentioned case the correctness of the decision in the case of <CITATION> . 1922 Cal 335 in which it was held that an order setting aside an abatement is a judgment within the meaning of the clause, was also doubted. An examination of the decisions bearing upon the question reveals a position, which has been admitted in many of the more recent decisions, that judicial opinion in this Court has not been either uniform or consistent as regards the meaning of the word judgment' as used in the clause, and that the decisions are not easy to be reconciled.

6. The result could not have been otherwise when the Court purporting to take its stand upon the definition given in Justices of the Peace of Calcutta v. <ORG> (1872) 17 WR 364 has, in each particular case, sought to bring the relevant order within its scope, not unoften by using logic which, it has to be said within the utmost respect, is not sound. This conflict of authority has been pointed out in several cases amongst which reference may be made to the cases of <CITATION> 1916 Cal 361, Budhulal v. Chattu Gope 1918 Cal 850 and <CITATION> 1929 Cal 214. In Madras, <NAME>, C.J., in the Pull Bench decision in <CITATION> (1912) 35 Mad 1 said:

The test seems to me to be not what is the form of the adjudication, but what is its effect in the suit or proceeding in which it is made.

7. He laid down three tests for determining whether an order is a judgment within the meaning of the corresponding clause of the Madras Letters Patent. They are the following: (1) If its effect is to put an end to the suit or proceeding so far as the Court before which the suit or proceeding is pending is concerned; or (2) if the non-compliance therewith will have the effect of putting an end to such suit or proceeding; or (3) if it is passed in an independent proceeding which is ancillary to the suit (not instituted as a step towards judgment, but with a view to rendering the judgment effective when obtained), e.g., an order on an application for temporary injunction or for the appointment of a receiver.

Mookerjee, J.,

8. In several decisions of his, when characterizing the definition of <NAME>, <NAME>, in Justices of the Peace of Calcutta v. <ORG> (1872) 17 WR 364 as too narrow has referred to <CITATION> (1912) 35 Mad 1, and in at least one decision of his has, applying the tests laid down in the latter case, held a particular order to be a judgment' as it satisfied the third of the said tests: <CITATION> (1874) 21 WR 303. To remove the incongruity which appears in the decision of this <ORG> and to lay down some definite rule by which orders might be tested when it has to be determined whether or not they are 'judgments' within the meaning of the clause, this <ORG> will some day have to abandon its fond adherence to the antiquated definition of <NAME>, <NAME>, and boldly acknowledge its allegiance to the tests laid down by <NAME>, <NAME> For the purposes of the present case however it is not necessary to go so far. As an order refusing to appoint a receiver, it comes, within the words of the third test of <NAME>, <NAME>, and is indeed one of the illustrations to the test which he himself has given.

9. As an order refusing an application for the appointment of a receiver based on a provision in the indenture of hypothecation, that on a breach of any one of the covenants contained therein the plaintiffs assignor would be entitled to have a receiver appointed, the order has determined a right which is one of the matters in the controversy itself, and so it satisfies the definition of <NAME>, <NAME>, as well. The order appealed from in this case is, in our opinion, a 'judgment' within the meaning of Clause 15, Letters Patent. We may add that there are decisions of this Court in which orders discharging or refusing to discharge a receiver appointed in a suit, after the suit had come to an end or had become infructuous, have been held to be judgments,' and so appealable: e.g., <CITATION> (1901) 5 CWN 781 and <CITATION> 1930 Cal 803. But there is another and a far simpler ground on which it must be held that an appeal is competent. The order in the present case is one for which a right of appeal is provided in Clause (s), Rule 1, Order 43 of the Code. Under the present Code (Act 5 of 1908) it cannot be contended that the Code and the Rules made under it do not apply to an appeal from a learned Judge of <ORG>; such a contention was elaborately dealt with and repelled in the case of <CITATION> 1916 Cal 361.

10. Turning now to the merits of the appeal, we must say that we are unable to find any sufficient ground on which the order of the <ORG> below may be supported. We have' been referred by learned Counsel for the respondent to a judgment of the said <ORG> in another suit, to which the present appellant was no party, as containing reasons which would justify the present order. We have read that judgment, but we cannot see how what has been said therein touches the controversy in the present suit and may in any way affect the question of appointment of a receiver which has been asked for on the strength of a stipulation contained in the indenture. That there has been a breach of at least two of the covenants in the indenture is a fact which must be held to have been prima facie established. It is possible that there has also been some deterioration of the security for which the defendants are responsible; but on this point we do not consider it necessary to express any definite opinion.

11. The defence is that the covenants are not enforceable or, at any rate, are not enforceable in their entirety. That defence will have to be considered at the hearing of the suit itself; and it is far from clear that it can be regarded as well-founded at the present stage. The breach having been prima facie established it is clearly just that a receiver should be appointed, for that is what the parties had bargained for in the indenture itself. We are not satisfied that any circumstance exists which may be taken as indicating that the appointment of a receiver would be anything but convenient; indeed, the parties themselves appear to have considered in their contract that it would be convenient. The appeal, in our judgment, should be allowed, and we order accordingly. The order of <ORG>, is set aside and it is ordered that the Official Receiver do forthwith take possession as prayed for on behalf of the appellant. The appellant will have her costs of this appeal and of the costs of the application in the <ORG> below. The receiver will take possession before the order is drawn up and on counsel's endorsement only.

Patterson, J.

12. I agree.


JUDGMENT <NAME>, J.

1. This is a suit for partition. The plaintiff is a purchaser from one of the sons of <NAME>, who died in 1892, leaving four sons, <NAME>, <NAME>, <NAME> and <NAME> and a widow <NAME>. He left a house No. 3/2, <NAME>, the partition of which is sought in this suit, and it appears on the evidence that this is the only property he left. The share of <NAME> his come to the plaintiff <NAME> by virtue of a sale under a mortgage decree. The sale 'certificate has been put in. The share of <ORG> has come into the hands of the <ORG> defendants under a sale certificate, which also has been put in. The plaintiff seeks to have a partition of the property, and his contention is that he is entitled to a one-fourth share, in spite of the fact that the widow of <NAME> is alive, and is entitled under the law to a share of the ancestral property upon a partition of the same among the sons of the original holders. The question has been argued with considerable ingenuity on behalf of the plaintiff and the <ORG> defendants, and it has been suggested that the right of a mother to obtain a share upon partition comes into existence when the partition takes place among the sons; when a share is conveyed by the son to a purchaser the right of the mother does not follow that share. That, in substance, I understand to be the argument. But it is further contended that only in case of fraud on the part of a son, of which the purchaser has cognizance, any question relating to the share of the mother can arise. The effect of acceding to this contention would be to reduce the provision of the law, by which the mother becomes entitled to a share, to a nullity. Two cases were cited: <CITATION> (1873) 20 W.R., 126, <CITATION> (1886) I.L.R., 15 Cal., 292, in support of the contention. The passages to which I have been referred in those judgments, and which I am afraid have been somewhat strained to give colour to the argument must, in my opinion, be read with the facts with which the learned Judges were there dealing.

2. The case really in point is that of <NAME> v. <NAME>, ante p. 77. Both Mr. <NAME> and Mr. <NAME> tried to argue that the views expressed by <NAME>, <NAME>, were mere obiter dicta. In my opinion, the dictum of a judge of his learning and intimate knowledge of Hindu law would have considerable weight even if it went beyond the requirements of the case itself, but I think the views expressed by the Chief Justice and <NAME>, <NAME>, are decisive on the point and not merely obiter dicta. The learned Chief Justice points out that there were two points in the case:

(1) Whether or not the purchaser from a Hindu son Stands in the same position as the son himself.

(2) Whether in that particular case a transfer having been made after a partition suit, the purchaser was not bound.

3. The Chief Justice, as well as <NAME>, J., held on both these points against the very contention in this case. They first dealt with the general principle and then with the facts. The second point does not arise in the case before me. I have to deal with the first point only. I may say I have given the case my best consideration. I can only express my entire concurrence with the view of the law taken in <NAME> v. <NAME>. To put it shortly in the language used by the learned Chief Justice, the position of a purchaser from a son is exactly that of a son himself. He has the same rights and takes it subject to the same liabilities as those of the person from whom he purchased. And as a mother is entitled under the law to be maintained out of the joint family property, if anything is done affecting that right, for instance by the sale of any particular share by any of her sons, her right comes into existence.

4. That being my view, 1 hold the plaintiff is entitled to a one-fifth share as purchaser from <NAME> and the <NAME> defendants to a one-fifth as purchasers of <NAME>'s share, <NAME> and <NAME> to a one-fifth each and <NAME> to the remaining one-fifth for her life; after her death the sons and purchasers would be entitled to her share. I make a declaration to that effect and the usual decree for partition.


CASE NO.: Appeal (civil) 1026 of 2003 PETITIONER: <ORG> RESPONDENT: <NAME> DATE OF JUDGMENT: 27/07/2005 BENCH: <NAME> & <NAME> JUDGMENT:

JUDGMENT <NAME>, J.

<ORG> calls in question legality of the order passed by a Division Bench of <ORG> dismissing the writ petition filed by it. By the impugned order <ORG> summarily dismissed the writ petition and in effect affirmed the view expressed by <ORG>, Principal Bench, New Delhi (in short `the <ORG>'), though it did not specifically refer to it.

Factual background needs to be stated in brief:

Respondent filed an original application before the <ORG> claiming that he was engaged as a casual labourer for quite sometime and has been disengaged by verbal order on 31.12.2000. According to him, he had completed the requisite period of service for grant of temporary status. According to him his case is clearly covered by the Scheme circulated by <ORG> (in short "DOPT'') in the Government of India, <ORG>. It was claimed that the department had circulated by O.M. NO. 51016/2/90-Estt.(C) dated 10.9.1993 a scheme for grant of temporary status and regularization of casual workers. The scheme is called Casual Labourers (Grant of Temporary Status and Regularization) Scheme of Government of India, 1993. The said scheme came into force with effect from 1.9.1993. The scheme envisaged grant of temporary status to casual labourer who had worked at least 240 days in a year (206 days in the case of offices observing 5 days a week). According to the respondent he had completed the requisite period in the year 1998 and, therefore, was eligible for grant of temporary status. Present appellant took the stand before the <ORG> that the scheme was not on- going scheme but was applicable to those casual labourers who were in the employment on the date of issue of the O.M. and had rendered continuous service of the requisite period. The <ORG> accepted the employee's stand and directed that the employee be accorded temporary status from 1998 when he had completed the requisite period of 206 days engagement. Direction was given to grant consequential benefits (including the minimum of the appropriate scale) as his emoluments and for consideration of the case of regularization. The appellant filed writ petition before <ORG> and questioned correctness of the order. <ORG> by its impugned order dismissed the writ petition. <ORG> recorded practically no reason for the dismissal except noting that the workman had worked as casual labourer from 1995 to 2000.

In support of the appeal, learned counsel for the appellant submitted that the <ORG> was not justified in its view and <ORG> did not take note of the submissions made, and by a cryptic non-reasoned order has dismissed the writ petition.

Learned counsel for the respondent on the other hand submitted that undisputed position being that in 1998 the respondent had rendered service for more than 206 days, no exception can be taken to the orders of the <ORG> and <ORG>.

The controversy can be resolved on the basis of the interpretation of clause 4 of the Scheme. As already noticed, the Scheme came into effect from 1-9-1993. Clause 4(1) of the Scheme reads as follows:

"4. Temporary status:-(1) `temporary' status would be conferred on all casual labourers who are in employment on the date of issue of this OM and who have rendered a continuous service of at least one year, which means that they must have been engaged for a period of at least 240 days (206 days in the case of offices observing 5 days' week)."

Clause 4 of the Scheme is very clear that the conferment of "temporary" status is to be given to the casual labourers who were in employment as on the date of commencement of the Scheme. Tribunal has taken the view that this is an ongoing scheme and as and when casual labourers complete 240 days of work in a year or 206 days (in case of offices observing 5 days a week), they are entitled to get "temporary" status. We do not think that clause 4 of the Scheme envisages it as an ongoing scheme. In order to acquire "temporary" status, the casual labourer should have been in employment as on the date of commencement of the Scheme and he should have also rendered a continuous service of at least one year which means that he should have been engaged for a period of at least 240 days in a year or 206 days in case of offices observing 5 days a week. From clause 4 of the Scheme, it does not appear to be a general guideline to be applied for the purpose of giving "temporary" status to all the casual workers, as and when they complete one year's continuous service. Of course, it is up to <ORG> to formulate any scheme as and when it is found necessary that the casual labourers are to be given "temporary" status and later they are to be absorbed in Group 'D' posts.

A similar controversy was examined by this Court in <CITATION> .,  4 SCC 573 and a similar view was expressed in paragraph 6 of the judgment.

That being so, the <ORG>'s order is clearly untenable. <ORG> unfortunately did not examine the real issue involved and by a very cryptic order summarily dismissed the writ petition. The order of <ORG> is accordingly set aside.

At this juncture it is relevant to take note of the submissions made by learned counsel for the respondent. According to him the case of the respondent-employee is covered by the observations in paragraph 11 of <NAME> case (supra).

There is no substance in this plea. The observations in paragraph 11 were rendered in a different factual background and content and have no application to the facts of the present case.

The appeal is allowed without any order as to costs.


PETITIONER: <NAME> Vs. RESPONDENT: INCOME-TAX OFFICER, <NAME>. DATE OF JUDGMENT: 12/01/1951 BENCH: <NAME>, <NAME> BENCH: <NAME>, <NAME> KANIA, <NAME>, SAIYID SASTRI, M. PATANJALI MUKHERJEA, B.K. CITATION: 1951 AIR 97 1951 SCR 127 CITATOR INFO : D 1952 SC 115 (7) D 1954 SC 297 (10) R 1955 SC 3 (5) F 1955 SC 661 (6) RF 1959 SC 149 (52) R 1959 SC 395 (28) RF 1961 SC 65 (5,37) RF 1961 SC 232 (16,37) R 1961 SC 552 (32) RF 1962 SC1006 (34,72,75,80,81) O 1962 SC1563 (15) RF 1962 SC1621 (12,31,44,46,122,165) R 1963 SC 630 (25) R 1966 SC 619 (7) R 1970 SC 470 (33) RF 1971 SC 870 (10) D 1974 SC1105 (12) ACT: Constitution of India, Arts. 14, 31 (1), 32,265--Patiala and East Punjab States Union General Provisions (Administra- tion) Ordinance (XVl of 2005)--Union of States-Law relating to Income-tax--Uniform law introduced in all States from August 20, 1948--Provision that pending proceedings shall be governed by existing law--Assessment at different rates in different States--Equality of law--Infringement of fundamen- tal right--Assessment of income which accrued before August 20, 1948--Legality--Fundamental right not to be deprived of property save under authority of law--Whether applies to taxation--Scope of Arts. 31 (1) and 265--Application under Art. 32 for protection against tax laws--Maintainability. HEADNOTE: Section 3 (1) of the Patiala and East Punjab States Union General Provisions (Administration) Ordinance (No. XVI of 2005) which came into force on February 2, 1949, and re- enacted s. 3 of an earlier Ordinance which was in force from August 20, 1948, provided that as from the appointed day (i.e., August 20, 1948) all laws in force in the Patiala State shall apply muutatis mutandis to 17 128 the territories of the said Union, provided that all pro- ceedings pending before courts and other authorities of any of the Covenanting States shall be disposed of in accordance with the laws governing such proeeedings in force in such Covenanting State immediately before August 20, 1948. In one of the Covenanting States, viz., Kapurthala, there was a law of income-tax in force on the said date, the rate of tax payable under which was lower than that payable under the Patiala Income-tax Act, and in another Covenanting State, Nabha, there was no law of income-tax at all. For the ac- counting year ending April 12, 1948, assessees of Kapurthala State were assessed at the lower rates fixed by the Kapur thala Income-tax Act , in accordance with the proviso in s. 3 of the Ordinance relating to pending proceedings, and the assessees of Nabha were assessed at the higher rates fixed by the Patiala Act as there was no income-tax law in Nabha on August 20, 1948, and no income-tax proceedings were therefore pending in Nabha. The petitioner who was an asses- see residing in Nabha and who was assessed under the Patiala Act applied under Art. 32 of the Constitution for a writ in the nature of a writ of certiorari quashing the assessment on the ground (i) that he had been denied the fundamental right of equality before the law and equal protection of the laws guaranteed by Art. 14 of the Constitution inasmuch as he was assessed at a higher rate than that at which asses- sees of Kapurthala were assessed, (ii) that, as the Ordi- nance bringing the Patiala Income-tax Act into force in Nabha was enacted only on August 20, 1948, it cannot operate retrospectively and authorise the levy of tax on income which had accrued in the year ending April 12, 1948, and therefore he was threatened with infringement of the funda- mental right guaranteed by Art. 31 (1) of the Constitution that no one shall be deprived of his property save under authority of law: Held, (i) that the discrimination, if any, between the assessees of Kapurthala and Nabha was not brought about by the Ordinance but by the circumstance that there was no income-tax law in Nabha and consequently there was no case of assessment pending against any Nabha assessees; and in any case the provision that pending proceedings should be concluded according to the applicable at the time when the right is or liabilities accrued and the proceedings com- menced, was a reasonable law rounded upon reasonable classi- fication of the assessees which is permissible under the equal protection clause; (ii) that, as there is a special provision in Art. 965 of the Constitution that no tax shall be levied or collected except by authority of law, cl. (1) of Art. 31 must be regarded as concerned with deprivation of property otherwise than by the imposition or collection of tax, and inasmuch as the right conferred by Art. 265 not a right conferred by Part III of the Constitution, it could not be enforced under Art. 129 JUDGMENT:

ORIGINAL JURISDICTION: Petition No. 135 of 1950. Application under Art. 32 of the Constitution for a writ in the nature of a writ of certiorari and prohibition.

Dr. <NAME> (<NAME> and <NAME>, with him) for the petitioner.

<NAME>, Attorney. General for India, (<NAME>, with him) for the respondent.

1951. january 12. The Judgment of the Court was deliv- ered by DAS J -- This is an application under article 32 of the Constitution for appropriate orders for the protection of what the petitioner claims to be his fundamental rights guaranteed by articles 14 and 31. This is said to be a test case, for, on its decision, we are told, depend the rights of numerous other persons whose interests are similar to those of the petitioner.

There is no serious controversy as to the facts material for the purposes of this application. They are shortly as follows: On May 5, 1948, the then Rulers of eight Punjab States including. Patiala and Nabha with the concurrence and guarantee of <ORG> entered into a covenant agreeing to unite and integrate their territories in one State with a common executive, legislature and judiciary by the name of Patiala and East Punjab States Union, hereinaf- ter compendiously referred to as the <ORG>. By article III (6) of the covenant the then Ruler of Patiala became the first President or <NAME> of <ORG> and he is to hold the office during his lifetime. Article VI of the covenant is as follows :--

"(1) The Ruler of each Covenanting State shall, as soon as may be practicable, and in any event not later than the 20th of August, 1948, make over the administration of his State to the Raj Pramukh, and thereupon,

(a) all rights, authority and jurisdiction belonging to the Ruler which appertain, or are incidental to the Govern- ment of the Covenanting State shall vest in the Union and shall thereafter be exercisable only as pro- vided by this Covenant or by the Constitution to be framed thereunder;

(b) all duties and obligations of the Ruler pertaining or incidental to the Government of the Covenanting State shall devolve on the Union and shall be discharged by it;

(c) all the assets and liabilities of <ORG> shall be the assets and liabilities of the <ORG>, and

(d) the military forces, if any, of the Covenanting State shall become the military forces of the Union."

Article X provides for the formation of <ORG> to frame a constitution of a unitary type for the <ORG> within the framework of the Covenant and the Constitu- tion of India. <ORG> was also to func- tion as the interim Legislalature of the <ORG> until an elected legislature came into being. The proviso to clause (2) of that Article runs as follows :-

"Provided that until a Constitution framed by <ORG> comes into operation after receiving the assent of <NAME>, <NAME> shall have power to make and promulgate Ordinances for the peace and good government of the Union or any part thereof, and any Ordi- nance so made shall, for the space of not more than six months from its promulgation have the like force of law as an Act passed by <ORG> any such Ordinance may be controlled or superseded by any such Act."

This Union was inaugurated on July 15, 1948, and <NAME> thereafter took over the administration of the different Covenanting States. <ORG> was taken over by <NAME> on August 20, 1948. On the same day <NAME>, in exercise of the powers vested in him, promulgated an Ordinance (No. 1 of 2005) called the Patiala and East Punjab States Union (Administra- tion) Ordinance, 2005. The following provisions of this Ordi- nance are relevant for our purpose:

"1. (2) It shall extend to the territories included in the Covenanting States on and from the date on which the administration of any of the said State or States has been or is made over to the Raj Pramukh.

2. * *

3. As soon as the administration of any Covenanting State has been taken over by the Raj Pramukh as aforesaid, all laws, Ordinances, Acts, Rules, Regulations, Notifica- tions, Hidayats and Firrnans-i-Shahi having force of law in Patiala State on the date of commencement of this Ordinance shall apply mutatis mutandis to the territories of the said State and with effect from that date all laws in force in such covenanting State immediately before that date shall be repealed:

Provided that proceedings of any nature whatsoever pending on such date in the Courts or offices of any such Covenanting State shall, notwithstanding anything contained in this Ordinance or any other Ordinance, be disposed of in accordance with the laws governing such proceedings in force for the time being m any such Covenanting State."

Section 6 provides for the adaptation of the laws etc. enforced under section 3 and, amongst other things, any reference in these laws etc. to the Patiala State and the like was to be construed as a reference to the State of the Union. A notification (No.35 dated 27-5-05/11-9-1948) was issued over the signature of the <ORG> Secretary notifying that the Patiala Income-tax Act of 2001 and the Rules there- under had come into force in the various Covenanting States from August 20, 1948, thereby repealing the law or laws in force in that behalf in those States before that date, except as to pending proceedings. It may be mentioned here that prior to that date there was no law in the Nabha State imposing income-tax on the subjects of that State. On November 14, 1948, the Commissioner of Income-tax issued a Notification (No. 4, dated 29-7-2005) intimating that persons belonging to the Cove- nanting States of Nabha and Nalagarh would be assessed to income-tax under the Patiala Income Tax Act, 2001. It was mentioned that persons of those States whose income reached the taxable limit ' 'should henceforward keep regular and proper accounts for purposes of audit by <ORG>" on February 2, 1949, Ordinance 1 of 2005 was repealed and replaced by Ordinance No. XVI of 2005 promul- gated by <NAME> and called the Patiala and East Punjab States Union General Provisions (Administration) Ordinance, 2006. Section 3 (1) runs as follows:

"3. (1) As from the appointed day, all laws and rules, regulations, bye-laws and notifications made thereunder, and all other provisions having the force of law, in Patiala State on the said day shall apply mutatis mutandis to the territories of the Union and all laws in force in the other Covenanting States immediately before that day shall cease to have effect;

Provided that all suits, appeals, revisions applica- tions, reviews, executions and other proceedings, or any of them, whether Civil or Criminal or Revenue, pending in the <ORG> and before authorities of any Covenanting States shall, notwithstanding anything contained in this Ordinance, be disposed of in accordance with the laws governing such proceedings in force in any such Covenanting State immedi- ately before the appointed day."

By section 2 (a) the "appointed day" was defined as meaning the 5th day of Bhadon, 2005, corresponding to August 20, 1948. There was a section providing for adaptation similar to section 6 of the Ordinance 1 of 2005. There was another Ordinance to which reference has to be made, namely, Ordinance No. 1 of 2006 called the Finance Ordinance promul- gated on April 13, 1949, which came into force on that very date. Section 5 of that Ordinance introduced several amend- ments to the Patiala Income Tax Act, 2001. It recast  sections 3 and 34 of that Act and introduced a new section as section 23B . Section 6 of that Ordinance runs thus:

"6. For the assessment year beginning on the 1st day of Baisakh, 2006, that is to say, in respect of the accounting the income, profits and gains of the previous year ending on the last day of Chet, 2005,-

(a) income-tax shall be charged at the rates specified in Part I of the Second Schedule to this Ordinance, and

(b) rates of super tax shall, for the purposes of sec- tion 55 of the Patiala Income Tax Act, 2001, be specified in Part II of the Second Schedule to this Ordinance."

It is in this setting that the facts leading to the present petition have to be considered.

The petitioner is a resident of <ORG> in the district of Mohindargarh now in <ORG> but which formerly formed part of the Nabha State. The petitioner has been carrying on his business at <ORG> for a number of years under the' name and style of <NAME>. He never paid any income-tax as no such tax was imposed by any law in the Nabha State. On October '20, 1949, the petitioner was served with a notice under sections 22(2) and 88 of the <ORG> Income Tax Act, 2001, requiring him to submit a return for the Income Tax year 2006 (13-4-1949 to 12-4- 1950) disclosing his income during the previous year (13-4-1948 to 12-4-1949). The petitioner, on December 4, 1949, filed his return for the year 2006 and on February 14, 1950, he was assessed to income-tax. On May 23, 1950, the petitioner received a notice under section 34 calling upon him to file his return for the year ending the last day of Chet 2005, i.e., for the year 13-4-1948 to 12-4-1949. In this return he had to specify his income of the previous year, namely, 2004 (i.e., 13-4-1947 to 12-4-1948). It ap- pears that the petitioner along with other assessees of <ORG> and <NAME> submitted a petition before the Income Tax Officer on July 9, 1950, asking him not to proceed with the assessment for the year 2005 but on July 13, 1950, the Income Tax Officer assessed him to the best of his judgment under section 34(4) read with section 22(4) of the Income Tax Act. The petitioner along with other asses- sees similarly situated moved the Income Tax Commissioner and <ORG>, New Delhi, but without any success. No formal appeal under the <ORG> Income Tax Act appears to have been filed by the petitioner against assess- ments for either of the two years 2005 and 2006. On August 10, 1950, the petitioner filed his present petition before this Court under article 32 of the Constitution praying that a writ in the nature of a writ of certiorari be issued for quashing the assessments of the petitioner's income accrued in the years 2004 and 2005 and other ancillary reliefs. During the pendency of this petition the income-tax authori- ties have issued a notice under section 46 intimating that penalty will be imposed if the tax was not paid up. The contention of the petitioner in the first place is that he has been denied the fundamental right of equality before the law and the equal protection of the laws guaran- teed to him by article 14 of the Constitution. His griev- ances are formulated in paragraphs 10 and 11 of his peti- tion. It is said that while the people of Kapurthala which is included in <ORG> have been asked to pay income-tax for the period prior to August 20, 1948, at the old rate fixed by the Kapurthala Income Tax Act which was lower than the rate fixed by the <ORG> Income Tax Act, 2001, the people of Nabha who had not to pay any income-tax prior to August 20, 1948, at all have been made liable to pay at the higher <ORG> rate and that such discrimination offends against the provisions of article 14. This charge is refuted by paragraph 10 of the affidavit of <NAME>, the Additional Director of Inspection (income Tax), New Delhi, who was formerly the Commissioner of Income Tax, Punjab and <ORG>, which has been filed in opposition to the present petition. It is there stated that for the assessment year 2005, in Kapurthala the assessees whose cases were pending on August 20, 1948, were assessed under the Kapurthala Income Tax Act at rates fixed thereunder but that for the assess- ment year 2006 the provisions of the <ORG> Income Tax Act and the rates prescribed thereunder were uniformly applied in all areas of the <ORG>, including Kapurthala This alle- gation which is not denied in the affidavit filed by the petitioner in reply must be taken as correct. The assess- ment of Kapurthala assessees for the year 2005 at the old Kapurthala rate was obviously made under the proviso to section 3 of Ordinance No. 1 of 2005, which was reproduced in the proviso to section 3(1)of the Ordinance No. XVI of 2006 and both of which required all pending proceedings to be completed according to the law applicable to those pro- ceedings when they were initiated. No case of assessment was pending as against any Nabha assessee on August 20, 1948, for there was no Income Tax Act in Nabha prior to that date and, therefore, there could be no occasion for completing any pending proceedings against any of such assessees. In the premises, there can be no grievance by them on the score of discrimination. The discrimination, if any, was not brought about by the two Ordinances, but by the circumstance that there was no Income Tax Act in Nabha and consequently there was no case of assessment pending against any Nabha assessees. In any case the provision that pending proceed- ings should be concluded according to the law applicable at the time when the rights or liabilities accrued and the proceedings commenced is a reasonable law rounded upon a reasonable classification of the assessees which is permis- sible under the equal protection clause and to which no exception can be taken. In our opinion the grievance of the alleged infringement of fundamental right under Article 14 is not well-founded at all.

Dr. <NAME> appearing in support of the petition next contends that the administration of Nabha <ORG> having been taken over by the Raj Pramukh only on August 20, 1948, and the Patiala law including the Patiala Income Tax Act, 2001, having been brought into operation on and from August 20, 1948, the assessment of the tax on the petitioner's income which accrued prior to August 20, 1948, was wholly illegal and not authorised by the said Ordinances and the <ORG> by insisting on collecting the tax so illegally assessed was threatening to invade the petitioner's fundamental right to property guaranteed by article 31(1) of the Constitution.

Article 31(1) runs as follows:

"(1) No person shall be deprived of his property save by authority of law."

It will be noticed that clause (1) reproduces subsection (1) of section 299 of the Government of India Act, 1935, without the words "in British India." Reference has 'next to be made to article 265 which is in Part XII, Chapter I, dealing with "Finance." That article provides that no tax shall be levied or collected except by authority of law. There 'was no similar provision in the corresponding chapter of the Government of India Act, 1935. If collection of taxes amounts to deprivation of property within the meaning of article 31(1 ), then there was no point in making a sepa- rate provision again as has been made in article 265. It, therefore, follows that clause (1) of article 31 must be regarded as concerned with deprivation of property otherwise than by the imposition or collection of tax, for otherwise article 265 becomes wholly redundant. In the United States of America the power of taxation is regarded as distinct from the exercise of police power or eminent domain. Our Constitution evidently has also treated taxation as distinct from compulsory acquisition of property and has made inde- pendent provision giving protection against taxation save by authority of law. When Dr. <NAME> was asked if that was not the correct position, he did ,not advance any cogent or convincing answer to refute the conclusion put to him. In our opinion, the protection against imposition and collec- tion of taxes save by authority of law directly comes from article 265 , and is not secured by clause (1) of article 31.  Article 265 , not being in Chapter IIi of the Constitution, its protection is not a fundamental right which can be enforced by an application to this court under article 32. It is not our purpose to say that the right secured by article 265 may not be enforced. It may certainly be enforced by adopting proper proceedings. All that we wish to state is that this application in so far as it purports to be rounded on arti- cle 32 read with article 31(1) to this Court is misconceived and must fail.

The whole of Dr. <NAME> argument was rounded on the basis that protection against imposition and collection of taxes save by authority of law was guaranteed by article 31(1) and his endeavour was to establish that the Pepsu Ordinances could not, in law, and did not, on a correct interpretation of them, impose any income-tax retrospective- ly; that the Income Tax Officer on an erroneous view of the law had wrongly assessed the tax on income accrued prior to August 20, 1948, and that consequently the petitioner was being threatened with deprivation of property otherwise than by authority of law. In the view we have taken, namely, that the protection against imposition or collection of taxes save by authority of law is secured by article 265 and not by article 31(1 ), the questions urged by Dr. <NAME> do not really arise and it is not necessary to express any opinion on them on this application. Those questions can only arise in appropriate proceedings and not on an applica- tion under article 32. In our judgment this application fails on the simple ground that no fundamental right of the petitioner has been infringed either under article 14 or under article 31(1) and we accordingly dismiss the petition with costs.

Petition dismissed.

Agent for the appellant: <NAME>.

Agent for the respondent: <NAME>.