JUDGMENT <NAME>, C.J.

1. The question referred to <ORG> for decision is "whether under Section 539 of the Civil Procedure Code a suit to remove a trustee will lie."

2. There has been a great diversity of opinion amongst the Judges of <ORG> on this point. In <NAME> v. Ayyan Chetti I.L.R. 12 Mad. 157 Mr. Justice <NAME> and MR. Justice <NAME> expressed doubts whether Section 539 empowered a <ORG> to remove a trustee, whilst in <NAME> v. Krishna I.L.R. 14 Mad. 186 Mr. Justice <NAME> in a most exhaustive judgment reviewed the statutes and cases both English and Indian relating to the subject in question, and came to the conclusion that Section 539 did not authorize the removal of a trustee. <NAME> and <NAME>, JJ. took the opposite view and held that a trustee could be removed in a suit brought under this section. It appears to me that Section 539 of the Civil Procedure Code was drafted on the lines of 52 George III. cap. 101, commonly called Romilly's Act, and the draftsman must have been well aware that it had been held that the Act did not apply when the question arose as to whether a trustee should be adversely dismissed for misconduct. Is it probable, therefore, that if the <ORG> intended the section to apply to a case where the removal of a trustee was in question that specific relief would not have been mentioned. The section enumerates the specific reliefs that are given and the first is appointment of newtrustees under the trust. We are, however, asked to add words to the section and to say that the <ORG> intended to give the power to remove adversely a trustee although the <ORG> refrained from saying so. The words "granting such further or other relief as the nature of the case may require" cannot, under the recognized rules of construction, be said to give a <ORG> the power to remove a trustee.

3. The words of a statute cannot be construed contrary to their meaning as embracing or excluding cases merely, because no good reason appears why they should be excluded or embraced: see <NAME> v. <NAME> (Eden. 184) per Lord <NAME>, per curiam in <NAME> v. <NAME> 524. The duty of the <ORG> is not to make the law reasonable, but to expound it as it stands according to the real sense of the words: see per <NAME>, J. in <NAME> v. <NAME> 6 Scott's N.R. 234 S.C. 5 M. and Gr. 428. It is far better, says Lord <NAME> in <NAME> v. <NAME> 1 E. and B. 516 that we should abide by the words of a statute than seek to reform it according to the supposed intention.

4. I agree with the dictum expressed by the Judges in Narasimha v. Ayyan Chetti I.L.R. 12 Mad. 157 and in the judgment of Mr. Justice <NAME> in Subbaya v. Krishna I.L.R. 14 Mad. 186 and answer the question referred to the Full Bench in the negative.

<NAME>, J.

5. I adhere to the opinion expressed by me in the previous decision.

<NAME>, <NAME>

6. The question is whether under the provision of Section 539 of the Civil Procedure Code, two or more persons can, with the consent of the Advocate-General, institute a suit for the removal of a trustee on the ground of fraudulent and improper conduct.

7. The terms of the section with reference to the relief which may be obtained are not merely general. The section particularizes the points to which the decree may be directed:

(a) appointing new trustees under the trust;

(b) vesting any property in the trustees under the trust;

(c) declaring the proportions in which its objects are entitled ;

(d) authorizing the whole or any part of its property to be let, sold, mortgaged or exchanged ;

(e) settling a scheme for its management, or granting such further or other relief as the nature of the case may require.

8. The section is significantly silent with regard to that most important head of relief in connection with trusts, viz., the removal of fraudulent trustees. The contention, therefore, that the section was intended to comprehend suits having that end in view can only be rested on the ground that by necessary implication jurisdiction to entertain such suits was conferred by the section. Apart from this section there is no doubt that in the Presidency Town it was competent to the Advocate-General to initiate proceedings either for the purpose of removing a trustee or for the purposes mentioned in the section, including that of having a scheme of management settled by the <ORG>, as was done in the <NAME> case. The powers of the Advocate-General in this respect to take action for the protection of charitable trusts are the same as those which the Attorney-General in England possesses; Attorney-General v. <NAME> 4 M.I.A. 194. In the <NAME> it was different. There was no public official who could take action in the <ORG>s with reference to trusts and it was probably doubtful whether the <NAME> <ORG>s had jurisdiction with regard to trusts such as is undoubtedly given by the present section. At any rate no ca3e can be found in which a <NAME> <ORG> has exercised such jurisdiction.

9. This being the state of things, while no alteration of the law was required for the Presidency Town, for <ORG> with regard to charities in the mufussil, there was need that jurisdiction should be given to enable those <ORG>s to deal more effectually with trust property. Whether the <ORG> had any further purpose in view and intended that District <ORG>s should grant relief generally with regard to such trusts in suits instituted by a public official or by interested persons with his consent is the question we have to determine. In favour of the construction of the section giving the <ORG> this larger jurisdiction it may fairly be said that the case such as the present, in which the removal of the trustee is alleged to be required in the interests of the trust, is eminently one in which it might be thought that a power to invoke the aid of the <ORG> should be given either to a public official or to persons interested in the trust. Legislation to that effect with reference to charities not of a religious character would be hi harmony with the enactment already in force with regard to trusts of a religious character; for under the Act of 1863 it is competent to persons interested in a religious establishment, on leave of the District <ORG> being first obtained but without joining as plaintiff any of the other persons interested, to bring a suit against the trustee who has been guilty of breach of trust and to obtain his removal from office or other relief.

10. It is incorrect to say that charitable trusts which are not within the Act of 1863 are left wholly unprovided for unless a general jurisdiction with regard to them is given by the section: see <CITATION> . 20 Cal. 816. As has been pointed out by two of the learned Judges in <NAME> v. Krishna I.L.R. 14 Mad. 199 220 a jurisdiction to remove trustees has always been exercised by <ORG>. The remedy is not wanting altogether; but except in this section of the Code there is no provision of law empowering any public official to take action.

11. The course of the argument stress was laid on the difficulties which would arise if the jurisdiction claimed is taken to be conferred by the section. It appears to me that no construction of the section is altogether free from difficulties. On the one hand if the section is to be restricted to proceedings not involving the removal of a trustee, it may be said that although the suit is launched upon an allegation of breach of trust and a breach of trust of a serious nature requiring the removal of the trustee may be proved, <ORG> or <ORG>, as the case may be, will have to stay its hand and remit the parties to an inferior Court to obtain the proper relief. Again, it would seem strange that the <ORG> should think it necessary to restrict to <ORG> and <ORG> the jurisdiction in such simple matters as appointing new trustees, for although there may be a prayer for the settlement of a scheme the jurisdiction is complete notwithstanding that there is no such prayer. Again, seeing that for the Presidency Towns no amendment of the law was required, it is difficult to understand why the Advocate-General was mentioned and why an alternative jurisdiction was given to <ORG>. On the other hand it may be objected that there being already a jurisdiction in <ORG> to remove trustees an enactment giving jurisdiction to certain <ORG> only in the same matter would be anomalous. It might lead to the most inconvenient results if a suit could be instituted under the section in <ORG> and at the same time another suit under the old procedure in a District Munsif's Court. Passing from these considerations from which in my opinion no conclusion can safely be drawn, I come to consider the other enactments with regard to the same subject-matter which the <ORG> had before them in 1877. In this country there was the Act of 1863 relating to religious endowments and containing the section already mentioned which gives a general jurisdiction to <ORG> in the case of any breach of trust. In specifying the relief which may be granted, Section 14 expressly mentions the removal of the trustee or other person incriminated. If in 1877 it was intended to give <ORG> a similar jurisdiction in suits launched by persons interested in non-religious trusts, and in the section as originally framed the words 'or religious' do not appear, it is difficult to understand why all mention of this important head of relief, the removal of trustees, was not mentioned.

12. It is clear, however, that the language of the section was not borrowed from the Act.of 1863 and that it was in part borrowed from the statute of <NAME> known as Sir <NAME> Act. That being so, we are bound to have regard to the interpretation which has been put upon the latter Act--and the more so inasmuch as it appears that the decisions upon the statute are in a measure reproduced in the section of the Code. It is true that the circumstances under which legislation was required in England and in India were widely different. In England the ordinary mode of obtaining redress with regard to charities being by way of information exhibited by the Attorney-General, what was required was not a forttm or a new jurisdiction but a new mode of invoking the aid of the <ORG>. The statute is entitled "An Act to provide a summary remedy in cases of abuses of trusts created for charitable purposes" and it enables two or more persons to proceed by petition praying such relief as the nature of the case might require.

13. In this country what was required at least for the mufussil was the creation of a new jurisdiction. The chapter does not state that the jurisdiction is to be summary (compare title of chapter XXXIX) and I cannot agree that it was intended that the proceeding being by suit should have that character. See per <NAME>, J. in <NAME> v. Krishna I.L.R. 14 Mad. 216). Notwithstanding these distinctions which may be drawn between the two enactments, I think we are bound to construe the language of chapter XL in the light of the decisions on the statute, so far as they are applicable to that language. The statute was from the outset held not to be applicable to cases in which the hostile removal of a trustee is required (see cases collected in Lewin on Trusts and <NAME>, Ch. P., cap. XXXVIII) and a further Act had to be passed in 1853 (16 and 17 Vic, cap. 137), empowering the <ORG> under certain circumstances on application made to order the removal or appointment of any trustee. When it is found that the <ORG> with those statutes and the decisions on them and also with the Act of 1863 before them omitted all reference to removal of trustees, the inference seems to me irresistable that that matter was not intended to be brought within the scope of the chapter. General words, it is true, are used similar to those used in the statute, but those words must be read with the words that go before and cannot be taken to include a distinct and substantive head of relief. In my opinion a jurisdiction to remove trustees as it is not given expressly by the chapter is not given by necessary implication, and therefore the question referred to us must be answered in the negative.

JUDGMENT

14. In accordance with the opinion of <ORG>, we must hold that the suit is not maintainable in <ORG>. The plaint ought to have been returned. We must modify the decree accordingly. The appellant must pay the costs of appeal.


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

<NAME>

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

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

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

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

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

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

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

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

Appeals dismissed.


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

P.S.S. Petitions allowed.


JUDGMENT

1. In this suit the plaintiff who is the proprietor of the Dharguli Estate in the District of Hazaribagh claims to recover the disputed properties. The suit is resisted by the defendants on the ground that her husband, the late proprietor of Dharguli Estate made a gift of these properties to her on 16th June, 1909. The learned Subordinate Judge has dismissed the plaintiff's suit and the plaintiff appeals to this Court.

2. The husband of the defendant was <NAME> who at all material dates was the proprietor of <ORG>. The plaintiff is the grandson of <NAME>, his father who was the eldest son of <NAME> having pre-deceased the latter. It appears that in 1894 the <ORG> was attached under the provisions of the Encumbered Estates Act. The estate was released on 15th May, 1909, and on I6th June, 1909 <NAME> made a grant in favour of his wife defendant No. 1, which is the subject of controversy between the parties in this litigation, <NAME> died on 21st February, 1924, his eldest son, the plaintiff's father having died on 30th January 1920. The estate was again attached under the provisions of the Encumbered Estates Act and the present suit was instituted by the plaintiff on 24th February 1925. The plaintiff's case in the plaint is that the transaction of 14th June 1909 was a benami transaction and that the object was to save certain properties for the grantor as he was heavily involved in debts. This defence failed in the <ORG> below and Mr. <NAME> appearing on behalf of the plaintiff-appellant does not challenge the finding of the learned Subordinate Judge on this point. The alternative case put forward in the <ORG> below was to the effect that the gift in question was in contravention of Section 12-A Encumbered Estates Act, and was, therefore, void. The learned Subordinate Judge has had no difficulty in giving effect to this argument; but he has held that although the grant was void, the defendant was in possession under the void grant for over twelve years and, therefore, acquired a title by adverse possession. Mr. <NAME> invites us to consider the effect of Section 12-A, Encumbered Estates Act; and he contends, first, that the alienation in question became void only on the death of <NAME> which took place on 21st February, 1924; secondly, that under Section 12-A not only is the title under the void document void but also the title that has been acquired by lapse of time; thirdly, he contends that there was in fact no adverse possession, but that the possession of the defendant was throughout permissive; and lastly, he contends that limitation is saved under Section 19, Limitation Act , as a result of the petition which was filed to the Commissioner on 4th March, 1916. In my opinion there is no merit in any of these arguments.

3. Section 12-A provides as follows:

(1) When the possession and enjoyment of property is restored, under the circumstances mentioned in the first or the third clause of Section 12 , to the person who was the holder of such property when the application under Section 2 was made, such person shall not be competent, without the previous sanction of the Commissioner,--

(a) to alienate such property, or any part thereof, in any way, or (b) to create any charge thereon extending beyond his life time.

(2) If the Commissioner refuses to sanction any such alienation or charge, an appeal shall lie to <ORG>, whose decision shall be final.

(3) Every alienation and charge made or attempted in contravention of Sub-section (1) shall be void.

4. Mr. <NAME> does not dispute the proposition that the transaction of 16th June 1909 contravenes the provisions of Section 12 and must, therefore, be regarded as void; but he contends that possession under a void grant must be regarded as adverse possession and he insists that the defendant having been in possession for over twelve years from the date she took possession, must be regarded as having acquired title under the Statute of Limitation. Now Mr. <NAME> contends that the transaction becomes void not from the date of the grant but from the date of the death of the grantor. The argument is founded on Clause 1, para (b), Section 12 A which forbids "the holder of such property" "to create any charge thereon extending beyond his life-time." It is contended on para. (b) that a charge is perfectly valid for the lifetime of the holder of the property and that, therefore, the alienation in para, (a) must also be regarded as a good alienation for the life time of the holder of the property. It is impossible to give effect to the argument. The section speaks' for itself: and it is perfectly clear that it provides that the alienation is void from the moment of such alienation although it suggests that a charge may be good for the life-time of the holder of the property.

5. In was then contended that Section 12-A in effect provides that the alienee cannot acquire a title under the Statute of Limitation. The argument assumes that the Act expressly or by necessary implication abrogates the Statute of Limitation and it is impossible to find any support from that argument in the Act itself. A decision of Sir <NAME> in <NAME> v. <NAME> 4 Bom. L.R. 797 was relied upon; but that was an entirely different case. In that case the plaintiffs sued to recover possession of certain fields alleging that they purchased the entire bhag from the owner thereof. The defence was that the fields were of bhagdari tenure and constituted only a portion of the bhag and that as a consequence, the plaintiffs' title was defective. It was found as a fact that the plaintiffs had purchased only a portion of the bhag and it was admitted that the title as based upon the purchase was bad But the plaintiffs relied on the fact that they had been in adverse possession of what was sold to them for over 12 years and they contended that they had acquired a complete title under the provisions of Section 28 , Limitation Act It appears, however, that the Collector, under the provisions of Section 3 , Bhagdari Act, summarily removed the plaintiffs and the whole argument before <ORG> was whether the Collector could exercise the right under Section 3 , Bhagdari Act, after the plaintiffs had acquired a complete title by lapse of time. In dealing with this point, Sir <NAME> said as follows:

It is also provided that it shall be lawful for the Collector, or other Chief Revenue Officer of the district, whenever he shall upon due enquiry find that any person or persons is or are in possession of any bhag or share in any bhagdari or narwadari village other than a recognized sub division of such bhag or share in violation of any of the provisions of this section, to summarily remove him or them from such possession and restore possession to the person or persons whom the Collector shall deem entitled thereto, and any suit brought to try the validity of any order or orders which the Collector may make in such matter must be brought within three calendar months after the execution of such order or orders.

6. Having considered the section upon which the defendants relied, his Lordship proceeded to say as follows:

It seems to us from the words of the section that the Collector, whenever he shall find any person in possession may pass such order, as he has passed in this case, and the Statute of Limitation does not prevent his so doing.

7. Now there is no similar provision in the Chota Nagpur Encumbered Estates Act and it, therefore, seems to me that the case upon which Mr. <NAME> relies is not applicable to the facts of this case. But the identical point was decided by <NAME>, J., in <CITATION> . Cas. 663 : 33 B. 116 : 10 Bom. L.R. 1123. It was pointed out that possession acquired under an alienation made in contravention of Section 3 , Bhagdari Act, can become adverse so as to bar a suit for recovery by the individual alienor or his representatives-in-interest; and that the Bhagdari Act contains nothing which by express provision or necessary implication abrogates the law of limitation in favour of a private person. The previous decision of <ORG> in <NAME> v. <NAME> 4 Bom. L.R. 797 was cited before his Lordship; but his Lordship distinguished the case on the ground that in the case before him no action had, as a matter of fact, been taken by the Collector. In my opinion it is impossible to argue that a title acquired by lapse of time should under the Chota Nagpur Encumbered Estates Act be regarded as void since as I have already said there is nothing in the Act to suggest that it expressly or by necessary implication abrogates the law of limitation.

8. It was then contended that there is in this case no adverse possession since the grantor and the grantee were colluding with each other and since the possession of the grantee must, in the circumstances of the case, be regarded as permissive. It is doubtful whether we have any case of adverse possession to try because it would appear that the case falls within Article 142 , Limitation Act , which provides for a suit for possession of immovable properties when the plaintiff while in possession of the properties has been dispossessed or has discontinued the possession. Discontinuance means that the person in possession goes out and is followed in possession by other persons. But Mr. <NAME> argues before us that going out as a result of a document is not discontinuance of possession within the meaning of Article 142 , Limitation Act . It is not necessary for me to come to any decision on this point, for I am satisfied that even if we are to proceed upon Article 144 , Limitation Act , upon which he relies, it must be held that the defendant has been in adverse possession of the disputed properties for over 12 years. Now ss. I understand the law, adverse possession denotes possession under a claim or colour of title. Now in this case the defendant entered upon possession by virtue of a document which had been executed by her husband in her favour. She entered upon possession by virtue of that document and continued to be in possession on the strength of that document. It may be that the title as based upon the document itself is void under Section 12-A , Encumbered Estates Act, but her possession nevertheless was under, a claim or colour of title and must accordingly be regarded as adverse. Mr. <NAME> then contends that whatever the position may have been prior to 4th March 1916, the position materially changed on that date as a result of certain petitions which were filed before the Commissioner both by <NAME> and by defendant No. 1. It appears that on that date two petitions were filed before the Commissioner of Chota Nagpur, one on behalf of <NAME> and the other on behalf of his wife, the defendant in this action. Now <NAME> in his petition stated that he had made a grant in favour of his wife and he insisted that he was entitled under the law to make a grant for the provision of his wife and that such a grant was outside the operation of Section 12-A , Encumbered Estates Act; but he stated that as doubt had arisen as to the validity of the grant as a result of the section to which I have already referred, it was necessary that permission should he accorded by the Commissioner so that no doubt might be left as to the validity of the grant. In the result he made the following prayers:

(1) That if Section 12-A , Act III of 1909, does not apply to the grants mentioned above (copies of which are filed for your honour's perusal) your honour may be pleased to declare that such sanction is not necessary.

(2). That if sanction is necessary your honour may be pleased to accord your honour's sanction to the same.

(3) That should your honour think that the execution of fresh deeds after your honour's sanction is necessary your honour may be pleased to sanction the grants taking the deeds filed as drafts, so that your petitioner may execute fresh grants according to the said drafts.

(4) That such alterations in the drafts as your honour may be pleased to order may be made.

(5) That your honour may be pleased to pass such other order or orders as may validate the grants and give effect to the intentions of the parties according to law.

9. The petition of the defendant was a short one and may be quoted in full. It was as follows:

That in view of the petition filed by <NAME> your petitioners beg to file original deed of gift and pray that your honour may be pleased to sanction the same or order a fresh grant on the same terms to be executed. And for this your petitioners as bound shall ever pray.

10. Upon these petitions an order was passed by the Commissioner on 26th April 1916. That order runs as follows:

The petitioner's (No. 1) estate was released from management under the Encumbered Estates Act on 15th May 1909 and a month after its release the petitioner on 16th June 1909 made a grant of a portion of the estate to his second wife and subsequently on 17th November 1909 of another portion to his third son. Under Section 12 A Act VI of 1876 the proprietor was not competent, without the previous sanction of the Commissioner to alienate such property or any part thereof in any way. He now applies after seven years for the Commissioner's sanction to his alienation so as to make it valid. The Deputy Commissioner reports that it is probable that the proposed alienation is not approved by the eldest son, and it is also probable that it is against the family custom. I decline to accord permission under Section 12-A to the alienations which were made without permission seven years ago immediately on the release of the estates.

11. It was contended by Mr. <NAME> that whatever may have been the position before, there was no pretence on the part of the defendant after 4th March 1916 or at any rate after the order of the Commissioner on 26th April 1916 to hold the property under a claim or colour of title; and that, therefore, her possession after 26th April must be regarded as a permissive possession. I am unable to agree with this contention. To start with, it is difficult to understand how a possession which starts under a claim or colour of title and, therefore, adverse can by virtue of subsequent events become a permissive one. In the next place, I do not regard the petitions of 4th March 1916 as constituting an admission either on the part of the donor or on the part of the donee that the grant of 16th June 1909 was void and inoperative in law. The defendant continued to be in possession, and I must hold that she continued to be in possession under a claim or colour of title. It was contended that her possession could not be regarded as hostile; but his possession was in denial of the title of the rightful owner and in that sense was undoubtedly hostile. In my view it is impossible to contend that the possession of the defendant was in any sense permissive. It was lastly contended that limitation is saved under Section 19 , Limitation Act . No doubt any acknowledgment of the title of the rightful owner will attract the operation of Section 19 , Limitation Act , and will save limitation and it is well-settled that any form of acknowledgment will be sufficient if from it an admission may be implied that the person to whom it is given is the owner of the land. Mr. <NAME> relies upon the petition of the defendant filed before the Commissioner on 4th March 1916. I have already dealt with the petition, and I do not agree with the argument that it contains an admission of the title of <NAME>. In my opinion Section 19 has no operation to the facts of this case. I must dismiss this appeal with costs.

<NAME>, <NAME>

12. I agree.