<NAME>, J.

1. These are two appeals for which the appellant, Mrs., <NAME>, obtained special leave from His Majesty in Council against two decisions of <ORG> at Madras.

2. They arise in the following circumstances :There are in India two legislative Acts of the Governor-General of India in Council relating to printing, one being The Printing Presses and Newspapers Act No. XXV of 1S67. and the other being Act No. I of 1910 entitled " An Act to provide for the better control of the Press, " and shortly " The Indian Press Act, 1910. " Under the first Act, Section 4 , the person who keeps in his possession a printing press must make and subscribe a declaration before a Magistrate, stating that he has a press for printing, and where it is situated. And by Section 5 no printed periodical work containing public news, or comments on public news, shall be published without the printer and publisher making a declaration stating that he is the printer or publisher, the name of the periodical and the place where the printing or publishing is conducted.

3. Under the second Act, Section 3 , Sub- section 1 , the person making the declaration is required to deposit before a Magistrate in money, or in certain securities, a sum not being leas than Rs. 500, or more than Rs. 2,000, as the Magistrate may think fit to require.

4. But the Magistrate may, for special reasons which ho is to record, dispense with the deposit, and he has certain powers of canceling or varying any order made under this sub-section.

5. By Section 4 of the Act the local Government, when it appears to it that any printing press in respect of which any security has been deposited, is used for the purpose of printing any newspaper which contains words, signs or visible representations of a nature deemed to be objectionable under the detailed provisions of the section which will be hereinafter specifically set forth, may by notice in writing addressed to the keeper of the press, declare the security and all copies of the newspaper wherever found forfeited to His Majesty, and after the expiry of ten days from the date of the issue of the notice of forfeiture, the declaration required of every keeper of a press is to be deemed to be annulled,

6. By Section 17 :

Any person having an interest in any property in respect of which an order of forfeiture has been made under Section 4 " ...[or under certain other sections not material to the present Appeal] "may, within two months from the date of such order, apply to <ORG> to set aside such order on the ground that the newspaper...in respect of which the order was made did not contain any words, signs, or visible representations of the nature described in Section 4 , Sub- section 1 .

7. And by Section 18 :

Every such application shall be heard and determined by a Special Bench of <ORG> composed of throe Judges....

8. By Section 23 , anyone who keeps in his possession a press without making a deposit under Section 3 when required so to do, shall be liable to the same penalty as if he had failed to make the declaration required by the first Act.

9. On the 2nd December, 1914, the appellant being the owner and keeper of a printing press, and printer and publisher of a newspaper called at that time, and thereafter, "New India," made the declaration required of her under the Act of 1867, and the Magistrate before whom it was made using the power of dispensation given to him by Section 3 of the Act of 1910, thought fit to dispense with the deposit of the security which under the provisions of the same section she would otherwise have had to give. The document in which the dispensation was embodied is not contained in the record of these appeals, and their Lordships have not before them the reasons which the Magistrate recorded as the grounds for granting this dispensation.

10. On the 28th May, 1916, the appellant received a notice from the Magistrate dated the 22nd May, in which it was stated that he, under Sub-section 1 of Section 3, cancelled the order dispensing with the security and required her within fourteen days to deposit Rs. 2,000 as security.

11. In accordance with this order the appellant, under protest, as she says in one of her affidavits, deposited the security.

12. On the 28th August, 1916, she was served with an order dated the 25th August and made by the Governor in Council reciting that twenty passages published in the newspaper and identified in the order were of the nature described in Sub-section 1 of Section 4 of the Act of 1910, and declaring that the security which the appellant had deposited and all copies of " New India" wherever found were to be forfeited to the <ORG>.

13. The appellant thereupon purporting to avail herself of the provisions of Section 17 of the Act presented her petition to a Special Bench of <ORG> at Madras praying that both the order of the Magistrate requiring security and the order of the Governor in Council should be revised and set aside. It being, however, obvious that the procedure under Section 17 was not available for questioning any act of the Magistrate, the appellant the next day presented what is called a Criminal Revision Petition under Sections 106 and 107 of the Government of India Act (5 & 6 Geo. V. c. 61) and Section 435 of the Code of Criminal Procedure. This application, also described in the course of the proceedings as an application for a certiorari, was also heard by the Special Bench.

14. After argument, both applications were refused; all the Judges agreeing that they should be refused, but not being in agreement as to the grounds on which the revision petition failed, and not being wholly in agreement as to all the articles in the newspaper which might merit condemnation.

15. The petitioner thereupon applied to <ORG> for leave to appeal in both cases, and on this leave being refused by <ORG> applied to His Majesty in Council for special leave to appeal, and this leave having been given (as already stated) in respect of both orders, both matters are now before their Lordships.

16. It will be convenient to consider first the application to quash the order of the Magistrate. This question divides itself into two parts: was the procedure adopted a competent and suitable method of reviewing the order, and if it be open to review is it to be deemed an illegal and unwarranted order ?

17. It is convenient to consider first the nature of the order, or supposed order. The Statute contemplates that in ordinary cases security shall be deposited, and the only duty of the Magistrate is to fix the amount, having regard to the two limits, and to receive it.

18. Then follows the proviso :

Provided that the Magistrate may, if he thinks fit, for special reasons to be recorded by him, dispense with the deposit of any security or may from time to time cancel or vary any order under tins Sub-section.

19. It was contended before their Lordships that to read this proviso as enabling the Magistrate to cancel or vary an order of dispensation would be to make a proviso upon a proviso, and to collect a positive enactment out of that which was only a qualifying provision. But it is well settled that there is no magic in words of proviso, and that the plain meaning must be given to the words of the legislature, and those words enable the Magistrate to cancel or vary any order made under the sub-section, which should mean among other orders of dispensation.

20. If the Magistrate having fixed the minimum security may vary his order by imposing the maximum, there is no reason why he should not, as time goes on, think fit to require security when at first he thought fit to require none. Under the second sub-section a power of requiring a deposit, where none up to that moment had been required, is given in certain cases to the local Government, and it is natural to suppose that what the local Government may do in a proper case under Sub- Section 2 , may be done in a proper case by the Magistrate under Sub- section 1 . It is somewhat difficult to find any case, other than this one, to which the word cancel would be properly applicable. If the normal course is adopted, and a deposit is required, and if the Magistrate thereafter thinks it too much or too little, the appropriate word for the now order is that it is one varying the old. But if he were to cancel simpliciter liciter an order fixing the deposit at a particular sum, it is difficult to see what would happen. There must be a deposit unless there is a positive order of dispensation; the canceling of an order fixing the deposit at say Rs. 2,000, would leave the keeper of the printing press in the position of having to apply to the Magistrate to make some further order, either fixing a new sum or dispensing with any; and till such new order had been made and complied with, the Keeping of the printing press would apparently be an unlawful act, so that the cancellation of the order fixing the deposit at Rs. 2,000 would be injurious instead of beneficent to the keeper of the press. But if the Magistrate had originally thought fit to dispense with security and afterwards changed his mind, the right phrase to use would be that he had cancelled his order of dispensation.

21. Their Lordships are, therefore, of opinion that the Magistrate has power under the section to cancel an order of dispensation, the necessary consequence of which will be that security will have to be deposited according to the amount thereupon fixed by him within the limits prescribed, as would be done in normal course on the first making of a declaration.

22. Their Lordships are in agreement in this respect with the opinion of <NAME>, and in disagreement with the view of <NAME> The Officiating Chief Justice, <NAME> agreed in principle with <NAME> and so expressed himself in his judgment upon the other application.

23. It is next contended on behalf of the appellant that the act of the Magistrate in canceling the dispensation was a judicial order, and was bad, because she was given no opportunity of being heard before an adverse order was made against her.

24. To this argument several answers have been given ; that the order might be treated as an ex parte order which it would have been open to her to move to discharge instead of complying with it as she did under protest; that as a judicial order it was still one made by the Magistrate within the exercise of his jurisdiction, and that the omission to hear her was only an irregularity which could not be reviewed, or at any rate could not be reviewed by process of certiorari; and lastly, that the act was not a judicial act but one done in the exercise of administrative functions.

25. It was on this last ground that all three Judges in <ORG> decided the point against the appellant; and without pronouncing any opinion on the other grounds their Lordships agree that this one furnishes a sufficient answer.

26. The Magistrates to whom this power is entrusted by the Act are the District Magistrates and the Chief Presidency Magistrates. Those to whom power was entrusted by the Act of 1867 were "any person exercising the full powers of a Magistrate," and were to include "Magistrates of Police and Justices of the Peace." At that time there were no Chief Presidency Magistrates.

27. It was argued before their Lordships that the change in the second Act, that is in especial the substitution of the Chief Presidency Magistrate for territory within his jurisdiction, showed an intention on the part of the <ORG> to make the action of the Magistrate judicial and not administrative. But their* Lordships do not think that this change alters the nature or character of the action of the Magistrate. It is true that the duties of the Chief Presidency Magistrate are primarily judicial; but the Magistrates outside the Presidency town exercise both judicial and administrative functions, and the District Magistrate is principally an administrative officer. These two considerations appear to balance one another. The action of the Magistrate under Sub-section 1 of Section 3 is (like the action of the Magistrate under Sub-section 1 of Section 8) analogous to the action of the local Government under the second sub-section in the same clauses, and the action of the local Government is clearly administrative.

28. It being once established that the normal course is to have a deposit, the action of the Magistrate in increasing or diminishing, withdrawing or imposing, is a pure matter of administrative discretion. It is only in one case that he is to record his reasons and that is when there is a departure from the normal, and the object of recording them is, as the Officiating Chief Justice rightly said, for the information of his superiors in the <ORG>.

29. Further, in this connection the provisions of Section 22 , upon which comment will shortly be made, must not be left out of sight. If a declaration of forfeiture by the local Government can only be questioned in one respect and by one methodit is not unreasonable to suppose that the legislature did not intend to open <ORG> to enquiries as to the exercise of so comparatively unimportant an official act, discretionary and in some respect facultative as it is.

30. The act of the Magistrate is after all only the withdrawal of a privilege which need never have been granted. It is not like a condemnation in which case justice requires that the person to be condemned should first be heard. It would have been in their Lordships' opinion more discreet, and it would have removed an occasion for comment and complaint, if the Magistrate had given the appellant some opportunity for making her observations before the privilege was withdrawn ; it might have been a wiser discharge of his duty as an officer. But having said this, their Lordships are unable to go any further.

31. It results, therefore, that if the order of the Magistrate was open to examination, either upon process of certiorari or by a way of revision, the consequence of an examination would be to leave the order as it stands; and this consequence is not without its bearing upon the question, which is prior in order of reasoning, whether it was competent to the <ORG> to enter upon any such examination. The appellant based her demand partly upon the Code of Criminal Procedure and partly upon the supposed common law power to grant a writ of certiorari. She did not rely upon the power of revision given by the Code of Civil Procedure.

32. It is not easy to gee how these proceedings could be deemed criminal proceedings within the Code of Criminal Procedure, They are not proceedings against the appellant as charged with an offence. They are at the utmost proceedings which rendered the appellant if she should thereafter commit a criminal or forbidden act, open to a particular form of procedure for a penalty.

33. In any view, as their Lordships have intimated their opinion that the Magistrate in withdrawing the order of dispensation was not acting judicially, it follows that this is not a case for revision under the Code of Criminal Procedure.

34. As to certiorari it was contended on behalf of the respondent in <ORG>, that there is no power in <ORG> to issue a writ of certiorari, or alternatively that the provisions of Section 22 forbid recourse to this writ in cases which come under the Press Act .

35. As to the first point it would seem that at any rate the there <ORG> of Calcutta, Madras and Bombay, possessed the power of issuing this writ: Section 71 re the Justices of the Supreme Court of Judicature at Bombay(1829) 1 Knapp. 1, 49, 51, 55; and <CITATION> for the Town of Calcutta (1885) I.L.R. 11 Cal 275 Whether any of the other Courts which are by definition <ORG> for purposes of this Act have the power to issue writs of certiorari is another question.

36. Supposing that this power once existed, has it been taken away by the two codes of procedure? No doubt these codes provide for most cases a much more convenient remedy. But their Lordships are not disposed to think that the provisions of Section 435 of the Criminal Procedure Code and Section 115 of the Civil Procedure Code of 1908 are exhaustive. Their Lordships can imagine cases, though rare ones, which may not fall under either of these sections. For such cases their Lordships do not think that the powers of the High Courts which have inherited the ordinary or extraordinary jurisdiction of <ORG>, to issue writs of certiorari can be said to have been taken away.

37. But assuming that the power to issue the writ remains, and that it might be exercised notwithstanding the existence of procedure by way of revision, Section 22 has still to be considered.

22. Every declaration of forfeiture purporting to be made under this Act. shall, as against all persons, be conclusive evidence that the forfeiture therein referred to has taken place, and no proceeding purporting to be taken order this Act shall be called in question by any Court, except <ORG> on such application as aforesaid, and no civil or criminal proceeding, except as provided by this Act, shall be instituted against any person for anything done or in good faith intended to be done under this Act.

38. As to this section it was contended on behalf of the appellant that as the writ of certiorari was not in terms said to be taken away the right to it remained, notwithstanding the very express but still general words of this section.

39. However that might be according to English Law where there is no such revision procedure as in India, their Lordships see no reason for narrowing the express words of the Indian Act . Certiorari according to the English rule is only to be granted where no other suitable remedy exists. If the order of the Magistrate were a judicial order, it would have been made in the exercise either of his civil or of his criminal jurisdiction, and procedure by way of revision would have been open.

40. Even were it to be said that the order was of that quasi-judicial kind to which certiorari has sometimes been applied in England or in India, the Press Act may quite reasonably have intended to take it away, and there is no reason why full effect should not be given to its language.

41. It was contended in <ORG> and before this Board that it was beyond the competency of <ORG> to enact Section 22 and possibly even to enact the Press Act . This argument which was mainly founded upon the language of <NAME> in the case of In the matter of <NAME>) 6 B.L.R. 392, 451 received some encouragement from the Officiating Chief Justice. But their Lordships find themselves unable to appreciate it.

42. The order of <ORG> dismissing this application was therefore right, and the appeal from it must be dismissed.

43. If their Lordships thought that the appellant had made any way, they would have had to consider whether she was not, according to the practice prevailing in cases of certiorari, too late in making her application. Indeed, what advantage the appellant would have gained if she had succeeded upon this application is not very apparent. The power of the local Government to make a forfeiture under Section 4 no doubt depends upon there being a deposit to forfeit. But at the time the order was made, 25th August, 1916, there had been in fact a deposit since 5th June; and the appellant had taken no steps to get herself relieved from the order made on the 22nd May directing the deposit, or to get it back.

44. Even were it contended that the deposit ought to be regarded as having been so unwarrantably exacted that it ought to count as non-existent, there was nothing to show that the local Government was or ought to have been aware of this. Further, Section 22 makes the declaration of the local Government conclusive as to there being a forfeiture.

45. Lastly, the appellant made no application by way of certiorari or otherwise to quash the declaration of forfeiture; and the only way in which it was attacked was by using the procedure under Section 17 , which as pointed out in <ORG> is available only for one purpose, that is of showing on the merits that the published articles were not deserving of forfeiture.

46. Their Lordships have now to deal with the other appeal. Section 4 , Sub- section 1 , of the Indian Press Act is in so far as it is material in the following terms:

(1) Whenever it appears to <ORG> that any printing-press in respect of which any security has been deposited as required by Section 3 is used for the purpose of printing or publishing any newspaper, book, or other document containing any words, signs, or visible representations which are likely or may have a tendency, directly or indirectly, whether by inference, suggestion, allusion, metaphor, implication or otherwise ....

to bring into hatred or contempt His Majesty or the Government established by law in British India or the administration of justice in British India or any Native Prince or Chief under the suzerainty of His Majesty, or any class or section of His Majesty's subjects in British India, or to excite disaffection towards His Majesty or the said Government or any such Prince or Chief; or....

(e) to encourage or incite any person to interfere with the administration of the law or with the maintenance of law and order....

<ORG> may, by notice in writing to the keeper of such printing-press, stating or describing the words, signs or visible representations which in its opinion are of the nature described above, declare the security deposited in respect of such press and all copies of such newspaper, book or other document wherever found to be forfeited to His Majesty.

EXPLANATION IIn Clause (c) the expression 'disaffection' includes disloyalty and all feeling's of enmity.

EXPLANATION II.Comments expressing disapproval of the measures of the <ORG> or of any such Native Prince or Chief as aforesaid with a view to obtain their alteration by lawful means, or of the administrative or other action of the <ORG> or of any such Native Prince or Chief or of the administration of justice in British India without exciting or attempting to excite hatred, contempt or disaffection do not come within the scope of Clause (c).

47. The notice of forfeiture issued on the 25th August, 1916, stated that in the opinion of the Governor in Council twenty passages published in the appellant's newspaper on various dates from the 7th June to the 17th August were of the nature described in Section 4 , Sub- section 1 and declared the security deposited by the appellant to be forfeited. The articles in question were numbered consecutively from 1 to 14, seven articles being numbered 4 and marked with consecutive letters of the alphabet. Thereupon the appellant availed herself of the remedy given to her by Sections 13 and 18 and applied to a Special Bench of <ORG> to set aside the order on the ground that the newspaper did not contain " any words, signs or visible representations" of the nature described in Section 4 , Sub- Section 1 ,

48. This application as already stated was heard by the same Judges as those who sat upon the application for a certiorari. In the unanimous opinion of the Bench, the articles numbered 2, 11 and 13 were within the terms of Section 4 , Sub- section 1 , Clause (c). <NAME> thought that article 11 was also obnoxious to Clause (e). The majority of the Bench, that is to say, the Officiating Chief Justice and <NAME> articles 1, 6, 10 and 12 obnoxious to Clause (c). <NAME> article 7 obnoxious to Clause (e), and articles 9 and 14 obnoxious to Clause (c). <NAME> thought article 8 obnoxious to Clause (c). In accordance with these conclusions the <ORG> dismissed the application made by the appellant.

49. The balancing of important political considerations which is effected by adding explanation No. 2 to the enacting words which are found in the earlier part of the section has its analogy in Sections 124A and 153A of the Indian Penal Code. The language is not precisely the same, but there is the same delicate balancing of two important public considerations, the undesirability of anything tending to excite sedition or to excite strife between classes and the undesirability of preventing any bona fide argument for reform.

50. It is perhaps not easy to see how explanation 2 with its qualifications, adds to, or detracts from the direct language of Clause (c). A similar observation might be made upon Section 124A of the Penal Gode. The utmost that can be said is that the addition of the explanation with its apparent repetition of the positive enactment in the guise of a qualification of the explanation shows an almost meticulous care by the <ORG> to balance the two considerations, prominence being given to the first consideration in the first part of the section, and to the second in the explanation.

51. In applying these balancing principles it is inevitable that different minds may come to different results, one mind attaching more weight to the consideration of freedom of argument, and the other to the preservation of law and order or of harmony.

52. The Section 124A of the Indian Penal Code has been the subject of careful consideration in the cases of the Queen-Empress v. <NAME> (1897) I.L.R. 22 Bom. 112, 528 (in which case this <ORG> refused leave to appeal. See <NAME> v. Quecn-Em-press (1897) L.R. 25 I.A. 1; the Queen-Empress v. <NAME> (1897) I.L.R. 22 Bom. 152 and the <CITATION> (1897) I.L.R. 20 All. 55, F.B. and though as already stated the language of this section is not precisely the same as the language in the Press Act these judgments are of considerable assistance towards the construction of Section 4 .

53. In substance the question under Clause (c) of Section 4 , Sub- section 1 , comes to this; are the passages such as in fact to excite, or do they disclose an attempt ( which implies intention ) to excite hatred, contempt or disaffection towards the <ORG> or of any class or section of His Majesty's subjects in India; and in judging the question of intent the publisher must be deemed to intend that which is the natural result of the words used having regard, among other things, to the character and description of that part of the public who are to be expected to read the articles.

54. As regards the question of hatred or contempt of a class of section, it was argued that the object of the article was to attack the system, not a class or section. It may be assumed, for the purposes of this case, that there may be reference to a class or section of His Majesty's subjects so couched as to show that the attack is merely upon a school of opinion, and that unless the language is such as to excite hatred or contempt of persons, it may escape condemnation. But assuming this, the appellant remains face to face with the difficulty that there is language used in certain of the articles which may legitimately be construed as tending by inference or suggestion to excite hatred or contempt in such a fashion that it may become personal.

55. It may well be that the primary object was a legitimate attack upon a system, but unless care is taken it becomes difficult to make a fierce attack upon a system without conveying some imputation upon the class which the system makes or which carries the system into practice. And it must be remembered that those words in Clause (c) which refer to the hatred or contempt of a class or section are not limited by explanation 2, and that there has been in this respect some departure from the policy of the Penal Code , which superadded a qualifying explanation which has not found place in the Press Act .

56. As to Clause (c) the majority of the Judges in <ORG> were brought to the conclusion that the attacks on Anglo-India or Anglo-Indians or the bureaucracy as the case may be, were calculated, whatever might have been the primary object of the writer, to bring into hatred or contempt persons forming a class or section of His Majesty's subjects, namely, English Civil Servants in India, in some cases Englishmen in India generally.

57. All the Judges thought that several passages were calculated to bring the Government into hatred and contempt, and this after giving due weight to explanation 2. There were also as already stated findings by <NAME> and <NAME> bringing some of the articles under Clause (e), a clause which it should be noted is not qualified by any explanation.

58. Upon careful perusal of the several judgments their Lordships find that weight has been properly given to the several portions of the section. They do not find that the section has been misconstrued. There remains only the question of application in detail of the principles of the Law to the language of the various articles.

59. When their Lordships have progressed so far, the question becomes one which partakes so much of the nature of a question of fact, that it would be difficult for their Lordships, even if they were inclined to construe the natural tendency of the words differently, to interfere with the conclusions arrived at by the <ORG> in India. For <ORG> when it sits to advise His Majesty in the exercise of his prerogative in criminal cases, does so under constitutional limitations which, as has often been explained, and notably in the case of <NAME> v. <NAME>), (and in <NAME>'s case already quoted) preclude it from exercising the full functions of a <ORG> of Criminal Appeal.

60. It should be added that for the purpose of considering, not the intention to excite, but the fact whether the articles are such as to excite, the Judges in India with a far closer knowledge of the character of the people likely to read the articles, have better means of judging than their Lordships in England.

61. Here the matter might rest. But in the particular circumstances of this case, and after the elaborate argument at the <ORG>, their Lordships think it well to go further, and to say that if they considered it proper to look into the matter in detail, they would hold that the articles which were the subject of unanimous condemnation, and at least some of those which came under the censure of Judges in <ORG>, were obnoxious to the provisions of Clause (c), and possibly in some cases to those of Clause (e), and that the <ORG> was right in supporting the declaration of forfeiture. Their Lordships will therefore humbly recommend His Majesty that both these appeals should be dismissed with costs.


PETITIONER: STATE OF M.P. AND OTHERS Vs. RESPONDENT: HYAMA PARDHI ETC. ETC. DATE OF JUDGMENT16/11/1995 BENCH: K. RAMASWAMY, B.L. HANSARIA ACT: HEADNOTE: JUDGMENT:

O R D E R Delay condoned.

Leave granted.

These appeals by special leave arise from the order of <ORG>, Jabalpur <ORG> Non-ministerial (Related to the Directorate Health Services) Class-III Services Recruitment Rules, 1989 (for short 'the Rules'), made under proviso to Article 309 of the Constitution, prescribed qualification for the appointment of Auxilliary Nurse-cum-Midwife (ANM), viz., 10+2 with Physics, Chemistry and Biology as qualitative subjects. Admittedly, the respondents had not possessed that qualification. It would be seen that the District Medical Officer, therefore, wrongly selected the respondents and sent them to the training. After their successful completion of the training, he made appointment as A.N.M. in the pay scale of Rs.950-1350/-. The respondents were served with notice dated 31st January, 1994 intimating that their selection for training was illegal and their services would be terminated with effect from February 23, 1994. The respondents challenged the cancellation of their appointment.

The <ORG> in the impugned order had held that the respondents having been selected and undergone the training and the competent authority having duly appointed them, cancellation of their appointment without any opportunity is violative of the principles of natural justice and it accordingly set aside the order and directed their reinstatement with consequential benefits. Hence, these appeals by special leave.

It is now an admitted fact across the <ORG> that the respondents had not possessed the pre-requisite qualification, namely, 10+2 with Physics, Chemistry and Biology as subjects. The Rules specifically provide that qualification as a condition for appointment to the post of <ORG>. Since prescribed qualifications had not been satisfied, the initial selection to undergo training is per se illegal. Later appointments thereof are in violation of the statutory rules. The <ORG>, therefore, was not right in directing the reinstatement of respondents. The question or violation of the principles of natural justice does not arise. The ratio of <CITATION> (AIR 1991 SC 309), strongly relied on, has no application to the facts of this case. That was a case where appellants possessed initial qualifications but they did not undergo the training. Since the appointment was set aside on the ground of want of training, this <ORG> interfered with; directed the <ORG> to reinstate them into service and further directed them to send the appellants therein for training.

The appeals are allowed and O.As. stand dismissed. No costs.


PETITIONER: P.CHINNANNA Vs. RESPONDENT: STATE OF A.P. DATE OF JUDGMENT08/08/1994 BENCH: VENKATACHALA N. (J) BENCH: VENKATACHALA N. (J) RAMASWAMY, K. CITATION: 1994 SCC (5) 486 JT 1994 (5) 320 1994 SCALE (3)688 ACT: HEADNOTE: JUDGMENT:

The Judgment of the Court was delivered by VENKATACHALA, J.- These are the appeals in which special leave is granted under Article 136 of the Constitution. They are directed against the common judgment dated 3-8-1993 of a Division Bench of <ORG> by which Writ Appeal Nos. 1389 of 1991 and 608 of 1993 filed against the orders dated 10-3-1989 and 30-3-1989 of a learned Single Judge of the same court in Writ Petition Nos. 13439 of 1986 and 7689 of 1989 respectively refusing to quash acquisition of certain land acquired for a public purpose under the Land Acquisition Act , 1894 (the L.A. Act ), are dismissed.

2. That on 23-4-1976 <ORG> made a request to <ORG> to acquire a compact block of 6 acres and 29 guntas of land in Survey Nos. 342/1A, 342/IB and 343 of Bhainsa Village needed for extension of its existing Cotton Market Yard. That on 6-7-1977 <ORG> which regarded the said request to acquire land, to be a case involving urgency, invoked its power under sub- section (4) of Section 17 of the L.A. Act and made an order directing that the provisions of Section 5-A of the L.A. Act shall not apply. Further, that on 21-7-1977, it got published in <ORG> a notification under Section 4(1) of the L.A. Act and a declaration under Section 6(1) thereof, in respect of the said land, as was required under sub-section (4) of Section 17 of the L.A. Act. Thereafter, the District Collector who got published the notice mentioned in Section 9(1) of the L.A. Act took possession of the said acquired land on 10-7-1978 as provided for in sub- section (1) of Section 17 of the L.A. Act. Such taking of possession made the said land vest absolutely in <ORG> free from all encumbrances as provided for in the said sub-section itself. Thereupon, the District Collector gave possession of the said acquired land to the <ORG> for whom it had been acquired. When the said 6 acres and 29 guntas of land, had been so acquired and its possession was taken by the Collector resulting in its vesting in the State, the appellants in the present appeals filed WP Nos. 8433 of 1978 and 3416 of 1978 in <ORG> and sought the quashing of Section 4(1) notification and 6(1) declaration insofar as they related to 1 acre 29 guntas of land claimed to have been purchased by them in April 1977.

<NAME>

WP No. 3416 of 1978 was disposed of by <ORG> by a judgment dated 23-8-1982 which read thus:

"In this writ petition the acquisition of Ac. 1-29 guntas in S. No. 342/IA of Bhainsa Village is challenged by the writ petitioners. This land is sought to be acquired for the purpose of extention of agriculture market yard of that place. The gazette notification was made under Section 4(1) of the Land Acquisition Act on 21-1-1977 and in view of the alleged urgency, Section 5-A enquiry has been dispensed with. That is to say, possession has been taken nearly a year after Section 4(1) notification was published. This circumstances is alone sufficient to show that the invoking of the emergency clauses to dispense with Section 5-A enquiry is done mechanically.

In these circumstances, the order made on 21-7-1977 dispensing with Section 5-A enquiry is set aside and there will be a direction to the Revenue Divisional Officer, Nirmal, Respondent 3 to give notice to the petitioners and hold Section 5-A enquiry and the proceedings will commence from that point. The writ petition is allowed as indicated above, but in the circumstances without costs."

Again Writ Petition No. 8433 of 1978 was disposed of on the same date by <ORG> by a judgment which reads thus: "No orders are necessary."

3. An enquiry under Section 5-A of the L.A. Act appears to have been held pursuant to the said judgment of <ORG> in Writ Petition No. 3416 of 1978 and a decision taken by the State Government, on the basis of the report of the enquiry to the effect that the land concerned shall be acquired. Thereafter, on 29-11-1984, a declaration has come to be made under Section 6(1) of the L.A. Act in respect of the said 1 acre 29 guntas of land and the notification of declaration is got published on the same date in <ORG>.

4. One of the appellants who had, as other appellants, purchased a building plot out of the said land respecting which the declaration dated 29-11-1984 was made, filed Writ Petition No. 13439 of 1986 in <ORG> challenging the validity of the said declaration made on the basis of the opinion of the <ORG>, formed on consideration of Section 5-A enquiry report. That writ petition was dismissed by a learned Single Judge of <ORG> on 10- 3-1989. Despite the dismissal of that writ petition, all other appellants appear to have joined and filed Writ Petition No. 7689 of 1989 on the very grounds on which dismissed writ petition had been filed. But that writ petition also has come to be dismissed subsequently. Both the writ petitions had been dismissed by the learned Single Judge concerned finding that the grounds raised in support of those petitions lacked in merit. Since the appellants who were the petitioners in the said writ petitions had filed Writ Appeal Nos. 1389 of 1991 and 608 of 1993 against the orders dated 10-3-1989 and 30-3-1989 by which their writ petitions were dismissed, <ORG> of <ORG> heard those appeals on 3- 8-1993. At the hearing of the appeals, a fresh ground is said to have been raised in support of the appeals. The fresh ground was that Section 6(1) declaration made on 29-11-1984 and under challenge, had not been made within the period allowed by the first proviso to Section 6(1) thereof, inserted into the L.A. Act by the L.A. (Amendment) Act , 1984, and hence was liable to be quashed. However, <ORG> of <ORG>, by its judgment delivered on the same day, dismissed the appeals, rejecting, inter alia, the fresh ground urged in support of the appeals at the hearing thus:

"The learned counsel for the appellants also submits that in any view of the matter, the declaration under Section 6 published on 24-11-1984 is beyond three years. In fact, this plea has not been taken in the writ petitions. As already stated, when Writ Petition No. 3416 of 1978 was filed, stay of further proceedings was granted. Finally, the writ petition was allowed on 23-8-1982. The respondents must know about the said order and after receipt of a copy of the judgments they have conducted enquiry and also published the draft declaration. Under these circumstances, it cannot be said that the declaration was published beyond the time allowed under law."

5. The appellants in the said writ appeals, who are the appellants in the present appeals by special leave have questioned the correctness of the judgment of <ORG> of <ORG> made in the writ appeals. The grievance of the appellants in the present appeals, as ventilated before us by their learned counsel, is confined to non-acceptance by <ORG> of <ORG>, the fresh ground argued before it against declaration made on 24-11-1984 under Section 6(1) of the L.A. Act as that was made beyond the time allowed under the first proviso to Section 6(1) inserted by the L.A. (Amendment) Act , 1984. The ground urged in support of the present appeals by the learned counsel for the appellants, to be precise, is that when Section 6(1) declaration impugned by them was made on 24-11-1984 while notification under Section 4(1) concerned was published on 21-7-1977, the declaration had been made beyond the period envisaged in the proviso and hence it was void and liable to be quashed. We may say, it once, that the ground so urged in support of the present appeals would merit acceptance, if the judgment dated 23-8-1982 of <ORG> in Writ Petition No. 3416 of 1978 had the effect of restoring ownership of 1 acre 29 guntas of land to the appellants and reviving Section 4(1) notification which had been published on 21-7-1977 in respect of that land also, as is assumed on behalf of the appellants, for the reasons, which we shall presently, state.

6. Section 6(1) of the L.A. Act and the first proviso inserted under the L.A. (Amendment) Act , 1984 on which reliance is placed in support of the ground urged by learned counsel for the appellants in support of their appeals reads:

"... when the appropriate Government is satisfied, after considering the report, if any, made under Section 5-A , sub-section (2), that any particular land is needed for a public purpose, or for a company, a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duty authorized to certify its orders, and different declarations may be made from time to time in respect of different parcels of any land covered by the same notification under Section 4 , sub-section (1), irrespective of whether one report or different reports has or have been made (wherever required) under Section 5-A , sub-section (2):

Provided that no declaration in respect of any particular land covered by a notification under Section 4 , sub-section (1),--

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

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

Explanation 1.- In computing any of the periods referred to in the first proviso, the period during which any action or proceeding to be taken in pursuance of the notification issued under Section 4 , sub-section (1), is stayed by an order of a court shall be excluded."

7. As becomes clear from a reading of the said proviso, there is a prohibition imposed in the matter of making a declaration under Section 6(1) in respect of any particular land governed by the notification under Section 4 sub- section (1), beyond the respective periods mentioned in clauses (i) and (ii) thereof. However, from the Explanation 1 to the said proviso it becomes clear that either of the periods referred to in clauses (i) and (ii) of the proviso could be computed by excluding the period during which any action or proceeding to be taken in pursuance of the notification issued under Section 4 sub-section (1) was stayed by an order of court.

8. When we come to the facts of the present case which had given rise to Writ Petition Nos. 3416 of 1978 and 8433 of 1978 in <ORG> there was no order made by court which stayed the taking of any action or proceeding pursuant to Section 4(1) notification concerned, in that Section 6(1) declaration of the land concerned was made, possession of such land was taken under Section 17(1) resulting in the vesting of the land in the <ORG> and possession of that land in turn had been handed over to the Bhainsa Regulated Market Samiti for whom the same had been acquired, even prior to the filing of the writ petitions. Insofar as clause

(ii) of the proviso is concerned, that cannot apply since the notification under Section 4 sub-section (1) concerned published on 21-7-1977 could not be regarded as that made after coming into force of the Land Acquisition (Amendment) Act , 1984. Then, as is assumed on behalf of the appellants in the present appeals,  Section 6(1) declaration made on 21-7-1977 in respect of the appellants' land, taking the possession of that land under Section 17(1) and its vesting in <ORG> and the handing over of possession of that land to <ORG>, all of which had taken place before the filing of WP Nos. 3416 of 1978 and 8433 of 1978, are regarded as set aside by the judgment of <ORG> dated 23-8-1982 in WP No. 3416 of 1978 and Section 4 sub- section (1) notification published on 21-7-1977 of the appellants' land is regarded as having been revived by that judgment, the ground urged on behalf of the appellants that Section 6(1) declaration dated 24-11-1984 made in respect of the appellants' land was prohibited under clause (1) of the proviso, is well founded and merits acceptance. It would be so for the reason that making of a declaration under Section 6(1) in respect of any particular land covered by a notification published under Section 4(1) after the commencement of the Land Acquisition (Amendment and Validation) Ordinance, 1967  but before the commencement ofthe Land Acquisition (Amendment) Act , 1984 after the expiry of 3 years is clearly prohibited under clause (i) of the first proviso to Section 6(1) of the L.A. Act and the impugned declaration dated 24-11-1984 has been in fact made long after the expiry of 3 years' time referred to in clause (1) of the first proviso, after the publication of Section 4 sub-section (1) notification on 21-7-1977.

9. But, when Section 5-A enquiry is made and Section 6(1) declaration is made, only on the assumption that the judgment dated 23-8-1982 of <ORG> in WP No. 3416 of 1978 had set aside the earlier Section 6(1) declaration made in respect of the same land and restored the ownership of the said land which had vested absolutely in <ORG> under Section 17(1) , to the appellants, and revived Section 4(1) notification published on 21-7-1977, while in fact the said judgment had not done so, there arises no need to void the impugned declaration which had not brought about any legal consequence. The reasons as to how and why Section 6(1) declaration and the steps taken for taking possession of the land under Section 17(1) and its vesting in the <ORG> and giving possession of the land to the <ORG> for which it was acquired stood unaffected by the judgment dated 3-8-1982 in WP No. 3416 of 1978 are not far to seek. Section 17(1) of the L.A. Act contains a provision which confers on the appropriate <ORG>,special powers in relation to the acquisition of land in case of urgency. Further, sub-section (4) of Section 17 empowers the appropriate <ORG> to direct that the provisions of Section 5-A shall not apply. This sub-section says when such direction is given,, a declaration may be made under Section 6 in respect of the land concerned at any time after the date of publication of the notification under Section 4 sub-section (1). However, when Section 5-A is made not to apply to acquisition of a land, the appropriate <ORG> can publish a notification under Section 4 sub-section (1) if not already published and then make a declaration under Section 6(1) . When once Section 6(1) declaration is made, by operation of sub-section (3) of Section 6 , such declaration becomes conclusive evidence that the land is needed for a public purpose or of a company, as the case may be, and after making such declaration appropriate <ORG> may acquire the land in the manner appearing in the subsequent provisions of the L.A. Act . Insofar as the land to be acquired pursuant to the direction of the appropriate <ORG> under sub- section (4) of Section 17 which makes Section 5-A inapplicable, sub-section (1) of Section 17 is required to be followed for the purpose of acquisition of the land concerned. That provision reads thus:

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

10. The said provision enables the appropriate <ORG> to take possession of the land concerned on the expiration of 15 days from the publication of the notice mentioned in Section 9 sub-section (1) notwithstanding the fact that no award has been made in respect of it. When the possession of the land concerned is once taken as provided for thereunder such land is made to vest absolutely in the <ORG> free from all encumbrances. It must be noted here that taking possession of the land concerned and its vesting absolutely in the <ORG> free from all encumbrances does not depend upon an award to be made under Section 11 , making of which award alone in the case of ordinary acquisition of land could have empowered the Collector to take possession of the land under Section 16 and the taking of which possession would have made the land vest absolutely in the <ORG> free from all encumbrances. As seen from the judgment dated 23-8- 1982 of <ORG> in WP No. 3416 of 1978, taking possession of the appellants' land along with land of others by the Collector on 10-7-1978 under Section 17(1) is, in fact, made the basis for its holding that invoking of urgency clause to dispense with Section 5-A enquiry was made by the <ORG> mechanically. No doubt, when <ORG> took the view that acquisition of the land concerned under Section 17 of the Act was made pursuant to an order of the <ORG> without application of its mind in the matter of making Section 5-A not to apply, it was open to it to set aside or quash the subsequent acquisition proceedings except Section 4(1) notification which had followed and restore the ownership of the land to the appellants' land if it had to order fresh enquiry on the basis of Section 4(1) notification. Such a setting aside or quashing was inevitable because the acquisition proceedings had been completed under Section 17 and the land had vested in the State <ORG>, inasmuch as, without setting aside that vesting of the land in the State <ORG> and restoring the land to the appellant-owners, hat land was unavailable for subsequent acquisition by following the procedure under Section 5-A , Section 6 , Section 11 and Section 16 . Thus in the circumstances of the case in respect of the land of the appellants, when publication of Section 4(1) notification was made on 21-7- 1977, when declaration under Section 6 was published on 21-7-1977 and taking possession of that land under Section 17(1) by the Collector was made on 10-7-1978 and the vesting in the State <ORG> of that land had occurred on that day, setting aside by the judgment of <ORG> in WP No. 3416 of 1978 of merely the direction given by the <ORG> relating to nonapplicability of Section 5-A to the land, given on 7-7-1977, in our view, did not enable to Court to order the starting of fresh proceedings for acquisition of the land concerned under Section 5-A , inasmuch as, that land concerned on Section 4(1) notification had already become the land of the <ORG>. In this state of facts, when the previous acquisition of the land of the appellants made under Section 17 of the Act did never stood affected. Section 5-A enquiry held and subsequent declaration made were superfluous proceedings which were inconsequential. Hence, we feel that there is no need to set aside the impugned declaration inasmuch as the earlier acquisition was complete and had resulted in vesting of the land in the State <ORG> and there was no land available for acquisition in the subsequent proceedings which have been carried pursuant to the judgment of <ORG> made in WP No. 3416 of 1978. Therefore, in the stated facts, although we find that no need arises to declare the impugned declaration as void we clarify that the earlier proceedings which had taken place in respect of the appellants' land, resulting in its vesting in the State <ORG> free from encumbrances, has stood unaffected and any award made by the Collector or be made by him under the L.A. Act shall be regarded as that based on earlier acquisition proceedings.

11. We may, however, state that though we have examined the fresh ground of challenge in respect of Section 6(1) declaration raised on behalf of the appellants nearly seven years after it had become available to them, the same had been done solely to decide on the scope and applicability of the first proviso to Section 6(1) and its explanation, inserted into the L.A. Act by the L.A. (Amendment) Act , 1984. Such examination cannot, therefore, be understood as laying down that notwithstanding the lapse of time or laches in raising a legal ground in a proceeding under Article 226 of the Constitution or a proceeding under Article 136 of the Constitution there is an obligation on the part of the court concerned to examine such fresh ground. In fact, in relation to acquisition proceeding involving acquisition of land for public purposes, the court concerned must be averse to entertain writ petitions involving the challenge to such acquisition where there is avoidable delay or laches since such acquisition, if set aside, would not only involve enormous loss of public money but also cause undue delay in carrying out projects meant for general public good. When a fresh ground of attack to acquisition proceedings, even if it involves purely a question of law, its entertainment cannot be governed by a principle different from that which governs entertainment of writ petitions before <ORG> or proceedings arising therefrom before this Court under Article 136 of the Constitution.

12. In the result, these civil appeals are dismissed, however without costs.


JUDGMENT <NAME>, J.

1. These appeals and cross-appeals from a judgment and decrees of <ORG>, dated the 5th of June 1905, arise out of certain actions in ejectment brought by the plaintiffs in <ORG> of Mymensing to recover possession of seven plots of jungle lands, commonly called garhs, as appertaining to their estate of <NAME>.

2. The main defence to the suits was based on the allegation that the lands in dispute formed part of the defendant's talook of Balasuti, and not of the plaintiffs' zamindari of Pukhuria. It was also urged that the actions were barred by the Statute of Limitation.

3. At the trial the plaintiffs appear to have withdrawn or abandoned their claim in respect of plots 5, 6, and 7 ; and the adjudication was thus confined to the first four pieces of property, named respectively, (1) <NAME>, (2) Pirijpur, Bagalbari and Krishnapur, treated as one plot, (3) Jote Pailan, and (4) <NAME>.

4. A number of issues were raised, most of which only touched the fringe of the case, and, as usual, helped in prolonging the trial.

5. The Subordinate Judge, in a very able judgment dealing with the real issue, came to the conclusion that the plaintiffs had established both title and possession in respect of all four plots and awarded them a decree in modifiction of their claims regarding area.

6. On appeal by the defendant <ORG> has affirmed the Subordinate Judge's decree in respect of plots 1, 2 and 4, but has dismissed the claim in respect of Jote Pailan (plot 3).

7. Both parties have appealed to His Majesty in Council.

8. Regarding <NAME> (plot 4), the decision of <ORG> has not been seriously impugned at their Lordships' <ORG>, and the controversy is thus narrowed to the correctness of the decree with regard to <NAME> (plot 1), Pirijpur, &c. (plot 2), and of the dismissal of the claim respecting <NAME> (plot 3).

9. The history of the two properties Pukhuria and Balasuti is set out in considerable detail in the judgments of the Subordinate Judge and of <ORG>. It is sufficient therefore to refer here to only a few of the salient features of the case.

10. Pergunnah Pukhuria, prior to the Permanent Settlement of 1793, belonged to a Hindu lady, <NAME>, whose name occurs frequently in the annals of Eastern Bengal towards the end of the 18th century, and who is referred to in very reverent terms, in the first <ORG>'s judgment. Between the years 1766 and 1778 this lady appears to have made certain grants to her daughter <NAME> of a number of mouzahs which now constitute the Talook of Balasuti, paying rent to the parent estate of Pukhuria. The defendant derives title from <NAME>, whilst the plaintiffs, by various transfers and devolutions, have become the proprietors of the zamindari of Pukhuria.

11. The forest of Garhgojali forms admittedly a part of Talook Balasuti, and is owned by the defendant. In the year 1850 there was, at the instance of <ORG>, a thakbast, followed by a scientific survey of this tract of country, which seems to have lasted until 1857. In the course of the survey various contentions arose between the zamindars on one side and the talookdar on the other, regarding the demarcation of the lands. These contentions are referred to in the judgments of the Courts in India as matneza or contentious proceedings.

12. Ramkrishnabari and the three villages of Pirijpur, Bagalbari, and Krishnapur, now alleged by the defendant to form part of Garhgojali were surveyed then as appertaining to Pergunnah Pukhuria and not to Garhgojali, which was thaked and surveyed separately. Among the many contentions that arose between the parties in the course of the survey proceedings, no question seems to have been raised regarding the demarcation of these lands as falling within the ambit of the zamindari. Further, both the Courts in India concur in finding that the plots 1 and 2 are not included in the sanads by which the talook was created and having regard to the nature of the property as jungle land they have held, in their Lordships' opinion correctly, that possession must be presumed to have been all along with the plaintiffs, who clearly had title to them, until dispossession within the statutory period. In this view their Lordships think that the defendant's appeals in regard to plots 1, 2, and 4 must fail.

13. With regard to <NAME> (plot 3), the position is not so clear. Admittedly the plaintiffs are entitled to a mouzah or jote of that name as appertaining to Pukhuria, but bearing a separate revenue assessment in the Collector's Register. It is established that they pay the revenue for it and that they have often purported to deal with it as an existing mouzah. It is clear, however, that for many years prior to the <ORG> survey of 1851 they were unable to localise <NAME>; and consequently in the partitions that took place between the different owners of the Pergunnah, the batwara of <NAME> among the co-sharers was effected by means of a division of the jama or <ORG> revenue payable for it.

14. In the thakbast and survey proceedings of 1850 and 1851, no attempt appears to have been made to trace <NAME> or to have it demarcated by the <NAME> preparing the Thak map which formed the foundation of the subsequent survey.

15. In 1857, when the survey proceedings were evidently drawing to a close, attention was directed to the fact that Jote Pailan, a separate revenue paying mouzah appertaining to Pergunnah Pukhuria, did not appear to have been separately measured or thaked. The officer who submitted the report asked for an enquiry as to the reason of its non-appearance in the thakbast measurements of the locality; and the Deputy Collector in charge of the survey thereupon called for a statement from the person in possession of the mouzah or his <NAME>. Pursuant to this order the zamindar's agent appeared and stated that as Jote Pailan, was wholly covered with jungle and was situated "by the side of Garhgojali" it had been surveyed along with it, and that "the ten gunda share of Garhgojali should be taken for that mouzah."

16. There is nothing to show on what data or material the application was made for the allotment to <NAME> of a ten gunda share of the lands demarcated within the thaked boundaries of mouzah <NAME>. But on the 27th July 1857 the Deputy Collector, proceeding on the allegations of the zamindari mukhtar, directed that the statement in the thakbast proceedings be rectified, and pursuant to this direction an entry was made in the index attached to the thakbast map of <NAME> (Ex. 386). In the remark column it is entered that "this mouzah (<NAME>), has been measured without demarcation within the enclosure of mouzah <NAME>." And in the column of mahal, it is recorded that <NAME> consists of "15 annas and 6 pies" and <NAME> of 6 pies (or ten gundas).

17. On the 19th July, and consequently before the order referred to above, a petition had been presented by the <NAME> of the defendant's predecessor in title objecting to the statement of the zamindar's agent that <NAME> had been measured "in the same circle with Garb Jayanshi" (another name for Garhgojali). The petition then goes on to say "<NAME> is to the east of Ramnagar, and to the north of Kanyajora Khal, and forms an unprofitable mahal consisting of minor and worthless jungles,and it neither forms a part of, nor appertains to the garh held by"the petitioner, meaning Garhgojali. This petition, was rejected on the 27th July on the ground that the matter had been already disposed of.

18. No further step seems to have been taken with regard to the localisation of Jote Pailan until 1882, when the plaintiffs brought a suit for the enhancement of the rent of the Talook. In their claim they purported to exclude a tract of land, which they alleged to be Jote Pailan, wrongly included in Garhgojali. A map was prepared on that occasion, and the line of boundary pointed out then has been reproduced in the map of the locality prepared for the purposes of the present suits.

19. It will thus be seen that the plaintiffs' claim to Jote Pailan hinges on the entry in the statement attached to the thakbast map of Garhgojali, and the boundaries given in the defendant's petition of the 19th July 1857.

20. The position of Ramnagar is not disputable, but the parties are not in accord with regard to Kanyajora <ORG>. The Subordinate Judge has accepted the plaintiffs' statement that what the defendant calls Mendi <ORG> is the real Kanyajora <ORG> of the petition of 1857; and as according to the statements made then by the defendant, <NAME> lay to the east of Ram-nuggur and north of the Kanyajora <ORG> he has treated the disputed Jote accordingly. He seems further to have considered that the declaration entered in the index to the thakbast map was an official act to which no exception had been taken on behalf of the defendant, and may therefore be presumed to have been correctly made. Proceeding on this hypothesis he awarded the plaintiffs a decree for y 1/32nd. or ten gunda share of the total thaked area of Garhgojali lying to the east of Ramnagar and north of Kanyajora as pointed out by the plaintiffs. The learned Judges of <ORG> were not satisfied with the plaintiffs' identification of the <ORG>. With regard to the entry in the statement attached to the thakbast map, they considered it was made ex parte, and so far as appears on the record, without any inquiry. And they accordingly held that the plaintiffs had failed to discharge the onus that lay on them to show <NAME> was situated within Garhgojali. Their Lordships do not feel in a position, on a general review of the evidence, to say that they are wrong in the view they have taken. It is only with the help of the disputed entry in the thak map that the Subordinate Judge was able to mark off the area he has awarded to the plaintiffs. In the plaint they had claimed 8,000 biggas as belonging to <NAME> ; before the officer making the local investigation and who prepared the map of the locality, they pointed out an area extending to 22,000 biggas. The learned Judges are right in observing that the plaintiffs are "not at all certain as to the true position of <NAME>." The entry on which the decree awarded to them must rest, was made on an ex parte statement of the zamindars' agent which was immediately contradicted on behalf of the defendant. Under these circumstances their Lordships think the judgment and decree of <ORG> with regard to <NAME> must be affirmed.

21. In the result their Lordships will humbly advise His Majesty that these appeals and cross-appeals be dismissed with costs.


JUDGMENT <NAME>, Acting C.J.

1. This is an appeal from a judgment of Mr. Justice <NAME>, in which he has held, on an application by the respondents, that the award made against them by <ORG> on the 18th July 1919, at the instance of the appellant, is null and void. The contract between the parties was made on the 1st August 1918 for the sale of "19 bales of sheeting No. 3841, 36 inches by 38 yards at Rs. 19-12-0 per piece; shipment November and December 1918, delivery within 60 days from the date of arrival, payment casb, 2 months' late shipment accepted."

2. The contract contained an arbitration clause in these terms: "Any dispute as to damage, difference, inferiority, short quantity or measure or defeat or amount of allowance to be referred, at seller's option, to the Bengal Chamber of Commerce or other <ORG> as specified thereunder." The question of the true scope of this clause came up for consideration by this Court in the case of <CITATION> 64 Ind. Cas. 798 : 33 C. L. J. 545. We were then disposed to hold that Mr. Justice <NAME> had plated an unduly narrow construction upon the arbitration clause, especially as to the meaning of the words "difference" and "inferiority." In that case, however, it transpired that there had been no dispute between the parties such as would entitle one of them to invoke the aid of the arbitration clause. In the case before as, the buyer appellant had the matter referred to arbitration and his grounds of complaint were stated in these terms: "That the goods are not in terms of the contract and are not covered thereby. All these good and similar goods were originally sold by the importing firm to <ORG> (their banians' firm): after such sale, how can the importing firm sell these goods to other parties, treating such goods as the property of the importing firm? Correct shipments are not proved and it is not proved that the quantity of goods sold here, had been purchased and provided for in Japan, others are in the statement hereunder." It is plain that some of these grounds of complaint do fall within the scope of the arbitration clause; but ft is equally clear that the other grounds are beyond the scope of the arbitration clause. Consequently, the true position is that the appellant invoked the aid of the arbitrators on grounds some of which did, while the others did not, justify the exercise of theirs jurisdiction. When the matter went before the arbitrators, they delivered an award, which set out the grounds of complaint (as mentioned above) and then proceeded to formulate the decision: "We have carefully examined all evidence put before us and a ward concealment of contract. Messrs, <ORG>, sellers, shall pay to Messrs. <NAME>, buyers, the costs of this arbitration amounting to Rs. 125" it will be observed that the award does not state either the fasts found by the arbitrators or the grounds for their decision. It is, consequently, impossible for us to hold that the award proceeded solely on those grounds which entitled the arbitrators to exercise their jurisdiction under the arbitration clause, and not on any of the grounds which did not afford a basis for the exercise of that jurisdiction. Indeed, the fact that the complaints, as summarised by the appellant, are all set out as a prefase to the award, indicates, prima facie, that the award is based on all the grounds. In these circumstances, when we cannot hold with certainty that the arbitrators acted exclusively on grounds within their jurisdiction, we must apply the principle that if the bad is not separable from the good, the whole is bad, and pronounce the award null and void: <NAME> v. <NAME> (1846) 9 Beav. 135 : 50 E. R. 294, <NAME> v. <NAME> (1738) <NAME> 66 : 12 E. R. 1059, <NAME> v. <ORG> (1870) 5 Ex. 221 affirmed on Appeal (1871) 5 H. L. 418 : 41 L. J. Ex. 187 : 27 L. T. 1., Thorp v. <NAME> (1835) 2 C. M. & R. 367 : 4 Dowl. 457 : 5 L. J. (n. s.) Ex. 24 : 5 Tyr. 1047, 41 R. R 733 : 150 E. R. 158.

3. The result is, that the decree made by Mr. Justice <NAME> is affirmed and this appeal dismissed with costs.

Fletcher, J.

4. I agree.