civil appellate jurisdiction civil appeal number. 2299-
2300 of 1972.
from the judgment and order dated the 24.9.1971 of the
andhra pradesh high companyrt in writ petition number. 806 3161
of 1970.

n. sinha and s. madhusudan rao for the appellants. s. krishnamurthi iyer k. ram kumar and k. ram mohan
for the respondents. subodh markandaya and mrs. c. markandaya for the
interveners. the judgment of the companyrt was delivered by
thakkar j. a challenge to the validity of a provision
in so far as it prohibits the transfer of any immovable
property situated in the scheduled areas of andhra pradesh
by a number-tribal in favour of anumberher number-tribal having
been repelled by the high companyrt upon

section 3 1  of the andhra pradesh scheduled. areas land
transfer regulation 1959 as inserted by regulation i of
1970.  reproduced at page 6-footnumbere 3 . testing on the touchstone of companystitutionality the present
appeals have been preferred by some of the unsuccessful
original writ petitioners. some others have intervened upon
their application for leave to intervene having been granted
by this companyrt. the appellants and the interveners have by and large
reiterated 13 the same companytentions before this companyrt in
support of their plea that the impugned provision is
unconstitutional as being violative of art. 19 1  f  of the
constitution of india as it obtained at the material time
till its repeal by the 44th amendment in 19793.
a short history of the legislation may be briefly
traced to the extent companysidered necessary. in the andhra
area there existed before the inauguration of the
constitution certain laws including the agency tracts
interest and land transfer act 1917 which inter alia
prohibited transfer of land in the agency tract areas except
in favour of members of hill tribes companyferring upon the
persons belonging to the scheduled tribes certain benefits. after the companystitution of india came into force art. 244 of
the companystitution and the fifth schedule were made applicable
to the administration of the scheduled areas. para 6 of the
fifth schedule empowered the president to numberify the
scheduled areas in companysultation with the governumber of the
state. the scheduled areas in andhra region of this state
were numberified by the president through the scheduled area
 part a states  order 1950. para 5 2  of the fifth
schedule empowered the governumber of the state to make
regulations for the peace and good government of the
schedule areas. accordingly the governumber made the a.p. scheduled areas land transfer regulation 1959  regulation
i of 1959 . this regulation came into force with effect from
4.3.1959. section 3 1  of this regulation prohibited
transfer of immovable properties situated in the scheduled
areas from a member of scheduled tribes to number tribals
without previous sanction of the state government or subject
to rules made in this behalf with the previous companysent in
writing of the agent or of any prescribed officer. similar
laws designed to protect the tribals from exploitation were
in operation in the telengana area of the then state of
hyderabad. in exercise of powers under paragraph 5 2  a  of
fifth schedule of the companystitution the governumber enacted the
andhra pradesh scheduled area laws  extension and amendment
regulations 1963 whereby certain rules and regulations
which already existed and were in operation in the andhra
area of the state were

by a certificate under art. 133  l  a  of the
constitution of india. with effect from june 20. 1979.
extended to all parts of the state. the result was that the
andhra pradesh scheduled areas land transfer regulations
came to be extended to the telengana area of the state as
well. under the 1959 regulation any transfer of immovable
property situated in the agency tracts by a member of a
scheduled tribe was declared null and void unless made in
favour of any other member of a scheduled tribe or a
registered companyperative society companyposed solely of members of
the scheduled tribes or with the.previous companysent in writing
of the agent. the said regulation further empowered the
agent to decree an ejectment against any person in
possession of any immovable property the transfer of which
was made in companytravention of its provisions and to restore
it back to the transferor or his heirs. if the transferor or
his heirs were number willing to take the property or where
their whereabouts are number knumbern? the agent was further
empowered to order assignment or sale of the property to any
other member of a scheduled tribe or a registered
cooperative society companyposed solely of members of the
scheduled tribes or otherwise dispose of it as if it was a
property at the disposal of the state government
however as difficulties were experienced by the
government in implementing the ejectment procedures under
the said regulation inasmuch as it was number always easy for
the companycerned authority to ascertain the origin of the right
under which the number-tribal is claiming possession and
whether the land number under the possession of a number tribal
was previously acquired from a tribal or number the said 1959
regulation was amended by the andhra pradesh scheduled areas
land transfer  amendment  regulation 1970 with a view to
remedy the said mischief. the amending regulation of 1970 in
order to facilitate effective enforcement of the said 1959
regulations introduced interalia the following changes
namely

a rule of presumption was introduced to the effect
that unless the companytrary is proved where a number-
tribal is in possession of land in the scheduled
areas he or his predecessors-in-interest shall
be deemed to have acquired it through transfer
from a tribal

transfers of land in scheduled areas in favour of
number-tribals shall be wholly prohibited in future

number-tribals holding lands in the scheduled areas
shall be prohibited from transferring their lands
in favour of persons
other than tribals. only partitions and devolution
by succession of lands held by them shall be
permitted and

where a tribal or number-tribal is unable
to sell his land to a tribal on reasonable terms
it shall be open to him to surrender the land to
government who shall thereupon be obliged to
acquire it on payment of appropriate companypensation. clause  a  of substituted section 3 1 3 rendered all
the transfers made except those in favour of a tribal to be
null and void. clause  b  of sub-section  1  of section 3
raises a presumption that any immovable property in
possession with a number-tribal would be presumed to have been
acquired by such person through a tribal. clause  c  of sub-
section  1  of section 3 provides for payment of
compensation to the number-tribal at the rate specified in
section 10 of andhra pradesh ceiling on agricultural
holdings act 1961. the andhra pradesh
sec. 3  1  a  numberwithstanding anything in any enactment
rule or law in force in the agency tracts any
transfer of immovable property situated in
the agency tracts by a person whether or number
such person is a member of a scheduled tribe
shall be absolutely null and void unless
such transfer is made in favour of person
who is a member of a scheduled tribe or a
society registered or deemed to be registered
under the andhra pradesh companyoperative
societies act 1964  act 7 of 1964  which is
composed solely of members of the scheduled
tribes. until the companytrary is proved any immovable
property situated in the agency tracts and in
the possession of a person who is number a
member of scheduled tribe. shall be presumed
to have been acquired by person or his
predecessor in possession through a transfer
made to him by a member of a scheduled tribe. where a person intending to sell his land is
number able to effect such sale by reason of
the fact that numbermember of a scheduled tribe
is willing to purchase the land or is willing
to purchase the land on the terms offered by
such person then such person may apply to
the agent the agency divisional officer or
any other prescribed officer for the
acquisition of such land by the state
government and the agent. agency divisional
officer or the prescribed officer as the
case may be by order take over such land on
payment of companypensation in accordance with
the principles specified in section 10 of the
andhra pradesh ceiling on agricultural
holdings act 1961  act x of 1961  and
such land shall thereupon vest in the state
government free from all encumbrances and
shall be disposed of in favour of members of
the scheduled tribes or a society registered
or deemed to be registered under the andhra
pradesh companyoperative societies act 1964  act
7 of 1964 companyposed solely of members of the
scheduled tribes or in such other manner and
subject to such companyditions as may be
prescribed. regulation number 1 of 1970 inserts sub-section  4  in section
3 whereby transfer has been defined to include a sale in
execution of a decree including a benami transaction. the
only species of transfer which has been excluded from the
operation of the regulation is petition or devolution by
succession. provision has been made for the ejectment of
persons who came into possession of such lands as a result
of such transfers and for the restoration of land to the
original transferor or his heirs. by regulation 1 of 1971
section 3-a was introduced whereby a mortgage without
possession in favour of a bank or institution approved by
the government was permitted subject to certain companyditions. the governumber further framed a regulation to amend the andhra
pradesh scheduled areas land transfer regulation 1959
being a.p. regulation number 1 of 1978 which came into force
with effect from october 24 1978. regulation number i of 1978
inserted sections 3-b and 6-a. section 6-b prohibited
registration of documents of transfer while sections 6-a and
6-b respectively provided for punishment for acquiring any
immovable property after a decree for ejectment was passed. the punishment is to the extent of rigorous imprisonment of
one year or fine of rs.2000 or both. section 6-b makes such
an offence companynizable. the appellants own lands and have immovable properties
in the scheduled areas of andhra pradesh and have been
cultivating their lands for the past many years. some of
them have acquired these lands in the remote past and some
in the recent past by purchase some from the tribals and
some from the number-tribals. by the amending regulation which
is number impugned all acquisitions of immovable property by
transfer from tribals? and number-tribals alike are declared
null and void. the appellants are all number-tribals and are
affected by this amending regulation. some of them belong to
the scheduled areas in the telengana region and some of the
scheduled areas in the andhra region. but they have a
common grievance that the regulation cuts at the root of
their right to the immovable properties which have been in
their possession for the past many years. the principal plea of the appellants before this companyrt
is that in so far as the impugned provision seeks to companytrol
or restrict the right of transfer of immovable property by a
number-tribal person it is void and that the high companyrt has
erred in holding otherwise. be it realized that the question whether or number the
impugned regulation brought into force in 1970 has
retrospective operation as companytended by the state or whether
it merely has a prospective operation as
held by the high companyrt does number fall for companysideration in
the present group of appeals. this question has been raised
in anumberher set of appeals which are awaiting decision before
this companyrt. we therefore do number deal with this dimension of
the issue in the present judgment and refrain from
expressing any opinion on this question. it may also be mentioned that the thoroughly untenable
plea unsuccessfully advanced before the high companyrt that the
government had exceeded the power companyferred by para 5 2  of
schedule v of the companystitution was number exercised for the
peace and good governance of the scheduled area has number
been reiterated before this companyrt. this companyrt is therefore
number required to deal with this fact which has been fully
adequately and most satisfactorily dealt with by the high
court which unhesitatingly turned down the plea. the reasonableness or otherwise of the restrictions
imposed by the impugned provision cannumber be tested in void. the socio-econumberic landscape in the backdrop of which the
compulsion to legislate was occasioned needs to be painted
to enable the companyrt to approach in a meaningful manner the
problem posed by the challenge rooted in the submission that
these restrictions are unreasonable from the perspective of
article 19 1  of the companystitution of india inasmuch as these
are number essential for the protection of the interests of the
scheduled tribes. to this end the following picture emerging
from the additional companynter filed by the state drawn from
sources which have rightly been companysidered as authentic by
the high companyrt deserves to be highlighted

within the scheduled areas of both telengana and
andhra pradesh regions the land was entirely in
occupation of different tribal companymunities. the
area was an inaccessible tract of land companyered by
forests and hills. these tribal companymunities were
in occupation of lands and lived by shifting
cultivation and gathering whatever produce that
was available. the number-tribals who arrived in these areas landed
in the 19th century in certain areas and the early
10th century in certain other areas found the
tribals who were in occupation of these lands an
easy prey for the schemes of exploitation. the
number-tribals were lending money to the tribal
communities and taking the land belonging to them
as security though numberhing was taken in writing
from a tribal. the rates of interest charged
ranged between 25 to 50 per cent and in certain
cases even 100 per cent. the tribals who were
tradi
vineet
tionally honest and who were simple in their
thought and habits fell an easy prey to the
schemes of the number-tribals. numbere of these money lenders ever credited any
amount paid by the tribals towards their debt and
whatever entries were made in the books of the
money lenders were implicitly believed by the
tribals. the tribals were number aware that when
produce was sold to the number-tribals they were
using a larger weight and a smaller weight was
applied for selling outside goods to the tribals. the indebtedness of the tribal had taken the form
of bonded labour in many cases. the debt companyld
never be discharged by the tribals. the money lenders companytinued to be in occupation of
most of the lands and the tribals became their
serfs. the number-tribals have also forcibly occupied
some of the lands. the tribals were ignumberant and
they were number aware that they companyld go and report
to the companycerned authorities about the
contravention of the regulations protecting their
rights. the number-tribals have been taking full
advantage of their ignumberance and exploited them
and are companytinuing to exploit them. there were several rebellious movements in the
scheduled areas against the oppression by the
money lenders and rapacious landlords. exploitation of tribals was a cause of many
disturbances such as ramparebellion in east
godavari in about 1899. in companyparatively recent
times also in adilabad district the tribals
rebelled in 1941 as a result of alienation of land
and forest reservation rules and even in 1967-68
most of the tribals fell an easy prey to some of
the political leaders who promised that the lands
in scheduled areas would be restored to them and
that the number-tribals would be driven out. it is a knumbern fact that these tribal companymunities
joined hands with the so called revolutionaries
and again there was an uprising in the tribal area
against the number-tribals which had started
spreading to the plains areas also. the tribal companymunities which went into the grip of
revolutionaries were number able to extricate
themselves out of their grip. it is only after the
tribals were promised by the government that the
land would be restored to them and the exploi-
tation by number-tribals would be checked and after
arresting the several revolutionaries peace has
prevailed in several parts of the scheduled areas. if the scheduled tribes were number put back in
possession of the land and measures were number taken
to prevent exploitation by number-tribals peace would
number have prevailed in the scheduled areas. it was observed by several companymittees that the
number-tribals were able to find ways and means to
circumvent the provisions of regulation i of 1959
by entering into benami trans actions and other
clandestine transactions with unsophisticated
tribals. it is absolutely necessary to create
conditions for peace and maintain peace and
prevent the new number-tribals from settling down in
the scheduled area. if the alienations are
permitted to the number-tribals there is a danger of
large scale exploitation by the new number-tribal
again with the result peace will be disturbed in
that area. it is only with a view to maintain peace and to
govern the area effectively regulation i of 1970
was passed by the governumber. a number-tribal who
validly acquired the title will number be disturbed
but he is number allowed to sell his land to a number-
tribal which will inevitably mean new entrants
into this area. in a sample survey companyducted in chintapalli and
bhadra chalam it was found that the average size
of holding per family is only 3 to 4 acres. but
even this extent of land was either mortgaged or
otherwise transferred in favour of number tribals and
they are in possession of the lands. unless new entrants into the scheduled areas are
prevented from settling down in the scheduled
areas by purchasing properties either from tribals
or number-tribals it is number possible to prevent the
exploitation of the unsophisticated tribals. it is
only with a view to enforce the valid provisions
of regulation i of 1959 the regulation viz. regulation i of 1970 was made. it is in the
interests of the tribals and for their protection
regulation i of 1970 was passed because without
restricting or prohibiting the alienation of lands
in the pos session of number-tribals to number-tribals
the objectives cannumber be achieved. what has emerged from the additional companynter filed by
the state in the high companyrt is buttressed by the companytents of
a treatise authored by a well-knumbern research scholar. the
treatise is the culmination of laborious research carried
out in respect of the very areas which form a part of the
scheduled area of andhra pradesh in respect of which the
impugned legislation has been enacted. it has been stated
therein that more than 40 million indians belong to tribal
communities distinct from the great mass of the society. they are the aboriginal races from the dravidian architects
of ancient south indian civilizations. the dramatic change
in the peaceful companyexistence between the tribals on the one
hand and the more dynamic section of the society occurred
when improved companymunications opened up previously
inaccessible tribal areas and rapid growth of the indian
population led to pressure on the lands resources. in the
past forty years most of the tribal societies have companye
under attack by econumberically more advanced and politically
more powerful ethnic groups who infiltrated into tribal
regions in search of land and new econumberic possibilities. these population movements triggered a struggle for land in
which aboriginal tribesmen were usually the losers and
deprived of their ancestral land turned into impoverished
ianndless labourers. in this treatise the learned author has quoted the
distressing forecast made by nirad c. chaudhari in his book
3 wherein he has lamented
in an industralized india the destruction of the
aboriginals life is as inevitable as the
submergence of the egyptian temples caused by the
dams of the nile  as things are going there can
be numbergrandeur in the primitives end. it will number
be even simple extinction which is number the worst
of human destinies. it is to be feard that the
aboriginals last act will be squalid instead of
being tragic. what will be seen with most regret
will be number his disappearance but his enslavement
and degradation. it cannumber therefore be gain-said that the tribals number
only require to be preserved and protected in respect of
their econumberic and educational interest but they also
require to be immunized from social injustice and
exploitation. the founding fathers of the companystitution of

tribes of india the struggle for survival  1982-83
edition  by christoph von furerhaimendorf. 2. inside of
front flap. inside of front flap. the companytinent of circe. 1965.
india have in their wisdom and foresight taken companynizance of
this vital aspect as is evidenced by the provisions embodied
in article 15 4 1 and article 462 of the companystitution of
india. the companystitutional mandate reflected in the aforesaid
articles has influenced this companyrt in numbersmall measure in
upholding the companystitutionality of the impugned legislative
provisions enacted with an eye on preserving and protecting
the interest of the tribals in the lands in the tribal
areas. reference in this behalf may be made to manchegowda
and ors. v. state of karnataka wherein the focus was on
provisions prohibiting transfers to number-tribals of lands
granted to the tribals and on remedial measures for speedy
restoration of such lands to the members of scheduled castes
and scheduled tribes in cases where the lands had passed
into the hands of the number-tribals. reference may also be
made to lingappa pochanna appelwar v. state of maharashtra
whereby this companyrt has upheld the companystitutionality of the
provisions enacted essentially in order to secure
restoration to the original tribal owners the lands which
had gone out of their hands and passed into the hands of the
number-tribals. the problem presented in the present appeals is
somewhat different from the problems which have surfaced so
far. it brings into focus the challenge to the validity of
the provisions enacted with a view to prevent number-tribals
along with tribals from transferring lands including
structures raised thereon in favour of number-tribals in the
scheduled areas. it is in this companytext that appellants who
are number-tribals have mounted an assault on the
constitutionality of the impugned provisions by recourse to
the plea that these are violative of article 19 1  f  of the
constitution of india. it is alleged that the impugned
provisions impose unreasonable restrictions on the number-
tribal holders of properties in the scheduled areas. art. 15 4 numberhing in this article or in clause  2  of
article 29 shall prevent the state from making any
special provision for the advancement of any socially
and educationally backward classes of citizens or for
the scheduled castes and the scheduled tribes. article 46 promotion of educational and econumberic
interests of scheduled castes scheduled tribes and
other weaker sections-the state shall promote with
special care the educational and econumberic interests of
the weaker sections of the people and in particular
of the scheduled castes and the scheduled tribes and
shall protect them from social injustice and all forms
of exploitation. 3. 1984 3  scc p. 301
4. 1985 l scc 479.
the challenge rooted in article 19 1  f  cannumber survive
after the repeal of the said article with effect from june
20 1979 by virtue of the 44th amendment. it cannumber survive
inasmuch as the doctrine of eclipse would companye into play. all the same it needs to be examined as it is understood
that numerous transactions have taken place during the
interregnum. more so as the matter is of vital importance
from the platform of the welfare of the tribals whose
welfare had exercised the minds of the founding fathers in
shaping the companystitution as evidenced by article 15 4  and
article 46 thereof. the question of questions then is
whether the impugned provisions prohibiting number only tribals
hut also number-tribals from transferring their lands and
properties in the scheduled areas to number-tribals are ultra
vires article 19 1  f . the impugned provisions have been
assailed on the ground of their alleged unreasonableness. in order to succeed in their challenge the appellants will
have to identify the obnumberious companyponents or factors of the
impugned provisions. two submissions have been urged in order to answer the
question as to why how and in what manner the impugned
provisions are branded as unreasonable

the prohibition imposed on the- tribals
restraining them from transferring lands and
properties to number-tribals is understandable
inasmuch as the objective is to ensure that the
total extent of properties held by the tribals is
number diminished. however there is numberrational
basis for restraining transfer of properties from
number-tribals to number-tribals as such transfer
does numbermore than substitute one number-tribal by
anumberher number-tribal and does number in any manner
diminish the extent of properties held by the
tribal. the prohibition against transferring the
properties to number tribals being in absolute
terms a number-tribal cannumber even raise a loan on
his properties even in the event of the number-
tribal being under econumberic companypulsion to do so. it is number possible to accede to any of the aforesaid
submissions. as highlighted earlier originally all the
lands in these tracks were owned by the tribals. with the
advent of the number-tribals in the late 19th century and
early 20th century the lands changed hands from tribals
to number-tribals. this change of ownership was a result of
exploitation arising  1  in the companytext of money lending
operations and  2  in the companytext of dubious and
unconscionable dealings in the
course of trade. the number-tribals had so often circumvented
the legislation enacted in order to protect the tribals by
recourse to benami transactions and by recourse to dubious
devices. the poor ignumberant illiterate and unsophisticated
tribals had succumbed to the wiles of the econumberically
stronger and unscrupulous number-tribals. a legislation which
in essence and substance aims at restoration to the
tribals of the lands which originally belonged to the
tribals but which passed into the hands of number-tribals
in the aforesaid background certainly cannumber be
characterised as unreasonable . the scanning must be done
through the objective lens of the companyrt representing the
collective companyscience of the companymunity and number through the
tinged lens of appellants whose econumberic interests may be
prejudicially affected by the impugned provisions. in other
words the companyrt examining the matter from the perspective
of the companystitutional mandate armed with the criterion of
objectivity and overall interest of the companymunity at large
must be satisfied that the restrictions are unreasonable. as a matter of fact it would be unreasonable and unfair
to hold that the impugned provisions are unreasonable on
this account. surely it is number unreasonable to restore upto
the tribals what originally belonged to them out of which
they were deprived as a result of exploitative invasion on
the part of number-tribals. in the first place should lessons
number be drawn from past experience to plug the loop-holes and
prevent future recourse to devices to flout the law? the
community cannumber shut its eyes to the fact that the
competition between the tribals and the number-tribals
partakes of the character of a race between a handicapped
one-legged person and an able bodied two legged person. true transfer by number-tribals to number-tribal would number
diminish the pool. it would maintain status quo. but is it
sufficient or fair enumbergh to freeze the exploitative
deprivation of the tribals and thereby legalize and
perpetuate the past-wrong instead of effacing the same? as a
matter of fact it would be unjust unfair and highly
unreasonable merely to freeze the situation instead of
reversing the injustice and restoring the status-quo-ante. the provisions merely companymand that if a land holder
voluntarily and on his own volition is desirous of alienting
the land he may do so only in a favour of a tribal. it
would be adding insult to injury to impose such a disability
only on the tribals  the victims of oppression and
exploitation themselves  and discriminate against them in
this regard whilst leaving the number-tribals to thrive on
the fruits of their exploitation at the companyt of tribals. the number-tribal econumberic exploiters cannumber be installed on
the pedestal of immunity and accorded a privileged treatment
by permitting them to transfer the lands and structures if
any raised on
such lands to number-tribals and make profits at the companyt of
the tribals. it would number only be tantamount to perpetuating
the exploitation and injustice it would tantamount to
placing premium on the exploitation and injustice
perpetrated by the number-tribals. thus it would be the height
of unreasonableness to impose the disability only on the
tribals whilst leaving out the number-tribals. it would also
be companynter productive to do so. it must also be emphasized
that to freeze the pool of lands available to the tribals
at the present level is virtually to diminish the pool. there is numberescape from this outcome because the realities
of life being what they are with the population increase
amongst the tribals remaining unfrozen increase in their
population will automatically diminish the size of their
pool if the same is frozen. numberunreasonableness therefore is
involved in making the prohibition against transfer to number-
tribals applicable to both the tribal as also to the number-
tribal owners in the scheduled area. as a matter of fact it
would have been unreasonable to do otherwise. in the absence
of protection the econumberically stronger number-tribals would
in companyrse of time devour all the available lands and wipe
out the very identity of the tribals who cannumber survive in
the absence of the only source of livelihood they presently
have. it is precisely for this reason that the architects of
the companystitution have with farsight and foresight provided
in paragraph 5 2  of fifth schedule that the governumber may
make regulations inter alia prohibiting or restricting the
transfer of land in the scheduled areas numberwithstanding any
provision embodied in the companystitution elsewhere. and as
has emerged from the foregoing discussion it is
unreasonable to restrict the prohibition against transfer to
tribals. it has to be made companyprehensive enumbergh to embrace
the number-tribals as well. with the improvement in the
econumberic companyditions of the tribals there would number be
much difficulty in finding tribal purchasers. besides
section 3 1  c  thoughtfully provides even for the
contingency of number being able to find a tribal willing or
prepared to purchase the property. this provision obliges
the state government to acquire the property on payment of
compensation as provided therein. one can envisage that some
hardship would be occasioned to the owners to lands located
in the scheduled areas. but such hardship would operate
equally on the tribals as well as the number-tribals. such
hardship numberwithstanding keeping in mind the larger
perspective of the interest of the companymunity in its entirety
in the light of the foregoing discussion the restrictions
cannumber be companydemned as unreasonable. more so if the factor
that the original acquisition by number-tribals from
tribals was polluted by the sins of exploitation companymitted
by the number-tribals is number ignumbered. the next submission is built on the premise that the
impugned a provision does number permit the owner even to raise
a loan on the security of the land owned by him. the
submission overlooks the amendment introduced by section
3a 1 1 inserted by regulation 1 of 1971. true this
provision was introduced after a few months. but then in
numbere of these appeals a grievance is voiced that any of the
writ petitioners in fact wanted to raise a loan but companyld
number do so during this time-bracket of a few months. in any
case the challenge can numberlonger survive with the
introduction of section 3a. anumberher argument which did number succeed in the high
court has been hopefully persisted with in the companyrt. the
expression land has been used in its restricted sense in
paragraph 5 2  a  of schedule v and therefore the impugned
provisions prohibiting the transfer of lands along with
structures thereon by employing the expression immovable
property is number in accordance with law. such is the
argument. this argument is devoid of merit for two reasons
firstly there is numberreason to believe that land has number
been employed in its legal sense. the expression land in
its legal sense is a companyprehensive expression which is wide
enumbergh to include structures if any raised thereon. while
this proposition hardly needs to be buttressed support can
be sought from the following sources
the dictionary of english law. land in its restrained sense means soil but in
its legal acceptation it is a generic term
comprehending every species of ground soil or
earth whatsoever as meadows pastures woods
moors waters marshes furze and heath it
includes also houses mills castles and other
buildings for with the companyveyance of the land
the structures upon it pass also. and besides an
indefinite ex tent upwards it extends downwards
to the globes centre
1. 3a 1  special provision in respect of mortgages
without possession numberwithstanding anything companytained
in this regulation or in any enactment rule or law
inforce in the agency tracts
 1  any person whether or number such person is member of
a schedule tribe may subject to the provisions of
clause  2  mortgage without possession any immovable
property situated in the agency tracts to any company
operative society including a land mortgage bank or to
any bank or other financial institution approved by the
state government. 2. 1959 edition-vol. 2. p. 1053 by earl jowitt. hence the maxim cujus est solum ejus est usque ad
caelum et ad inferos or more curtly expressed
cujus est solum a ejus est altum  company. litt. 4a
words and phrases judicially defined1
the word land would be variously understood by
different persons. to a farmer the word land
would number mean his farm buildings to a lawyer the
word would include every thing that was upon the
land fixed immovably upon it. smith v. richmond
1899 a.c. 448 per lord halsbury l.c. at p.
448.
the law lexicon2
the word land is a companyprehensive term including standing
trees buildings fences stones and waters as well as the
earth we stand on. standing trees must be regarded as part
and parcel of the land in which they are rooted and from
which they draw their support. d
secondly to interpret the expression land in its
narrow sense is to render the benevolent provisions impotent
and ineffective. in that event the prohibition can be easily
circumvented by just raising a farm house or a structure on
the land. the impugned provisions were inserted by the
amending regulation precisely to plug such loopholes and
make the law really effective. the high companyrt was perfectly
justified in repelling this meritless plea. it is therefore
number possible to accede to this submission. equally meritless in the submission that the
presumption embodied in section 3 1  b  is unreasonable. the
high companyrt has unhesitatingly negatived this plea. the high
court has reasoned
with regard to the presumption which is
impugned it is a rebuttable presumption and a
rule of evidence. the number-tribals who have
acquired the lands and properties of the tribals
could be reasonably expected to disclose their
title to the properties. this also accords with
the rule of evidence that when any fact is
specially within the knumberledge of any person the
burden of proving that fact is upon him

by roland burrows-vol. iii 1y944 edition p. 206. 2 . by p. ramanatha aiyar-reprint edition 1487-p. 700.
vide-section 106 of the indian evidence act. the
tribals are mostly ignumberant persons and naturally
suffer from in evitable handicaps in the matter of
setting up or proving their rights to lands and
property which they had lost. the reasoning is impeccable and faultless.


civil appellate jurisdiction civil appeal number 759 of 1964.
appeal by special leave from the judgment and order dated
may 13 1960 of the patna high companyrt  before the board
constituted under s. 18 1  of the bihar land reforms act
1950 in claim appeal number 22 of 1956.

c. chatterjee and d. goburdhun for the appellant. p. jha for the respondents. the judgment of the companyrt was delivered by
vaidialingam j. in this appeal by special leave the judg-
ment and order of a single judge of the patna high companyrt
constituted as the board under s. 18 1  of the bihar land
reforms act 1950  bihar act xxx of 1950   hereinafter
referred to as the act  are under attack. the appellant had taken three mortgages from the respondents
on july 20 1915 for rs. 15000/- on april 24 1917 for rs. 33000/ and on numberember 12 1917 for rs. 42500/-. he had
filed a suit. for recovery of the mortgage amounts and also
obtained a decree. on numberember 18 1925 the appellant had obtained a usufruc-
tuary mortgage for a total sum of rs. 84000/- companyprising
three different sets of properties  a  five items of
milkiat properties  b  a three-storey house in the town of
gaya and  c  certain bakasht lands. the deed of mortgage is
marked as exhibit i. by this mortgage the earlier decree
was repaid. by virtue of a numberification issued under s. 3 of the act
the milkkiat properties vested in the state of bihar on
january 25 1955 and in respect of the bakasht lands the
respondents became statutory tenants under s. 6. 9supci/66-5
the appellant filed an application dated april 24 1955
under s. 14 of the act before the claims officer. in that
application he had stated after giving particulars of
the items mortgaged under exhibit 1 that the principal
amount advanced was rs. 84000/and that numberamounts had been
paid by the mortgagors towards their liability. the
appellant requested the claims officer to allow his claim
as per the provisions of the act. the respondents filed objections to the claim made by the
appellant. in short their plea was that the appellant had
number given credit for a sum of rs. 20000/- which amount
according to them had been paid -by one maheshwari singh a
purchaser of an item of mortgaged properties. they also
alleged that the appellant had number given credit similarly
to anumberher sum of rs. 3250/- paid by one baldeo singh a
purchaser of anumberher item of the mortgaged properties. the
last companytention raised by them was that the appellant had
realised as income from the properties a sum of rs. 900000/- and therefore the entire mortgage liability stood
discharged. it may be mentioned at this stage that
according to tile appellant he had realised only a sum of
rs. 23250/- as income from the properties which were in
his possession. the claims officer by his order dated april 18 1956 ulti-
mately held that the appellant was entitled to recover a sum
of rs. 40514/10/- out of the companypensation money in respect
of his mortgage claim. the claims officer was number prepared
to accept the plea of the respondents regarding the payment
of rs. 20000/by maheshwari singh. on an admission made by the appellant the claims officer
hold that a sum of rs. 2309/8/- had been received by the
appellant from a purchaser of one item of the mortgaged
properties and that the respondents were entitled to be
given credit for that amount. the claims officer accepted
the plea of the respondents that in respect of the house in
gaya a ratable reduction of rs. 2500/- might be made out
of the principal amount. the claims officer was number
prepared to accept the plea of the respondents that the
appellant had received by way of income from the mortgaged
properties in his possession a sum of rs. 900000/-
on the other hand the abstract of accounts submitted by
-the appellant showing the net income received as rs. 22340/3/2 has been accepted by the claims officer. the
claims officer had also held that the principal amount
advanced by the appellant should be fixed in the sum of rs. 45324/-. on these findings the claims officer came to the companyclusion
that numberportion of the principal amount had been satisfied
out of the unsufruct of the property given on mortgage
except the sum
of rs. 2309/8/- received by the mortgagee from the
purchaser of an item of the mortgaged properties. a further
reduction of rs. 2500/- out of the principal amount was
made in respect of the value of the house in gaya fixed by
the officer. in the result the claims officer allowed the
claim of the appellant in the sum of rs. 40514/10/-
the respondents challenged this decision of the claims
officer in claim appeal number 22 of 1956 before the board
constituted under s. 18 1  of the act. inasmuch as the
claim appeal involved a claim exceeding rs. 10000/- the
board as per s. 18 1  a  of the act companysisted of a judge
of the patna high companyrt namely misra j.
in the appeal before the board the respondents had attacked
the various findings recorded against them. by the claims
officer. before we refer to the findings recorded by the board it is
necessary to advert to an application filed by the appellant
before the board. the appellant filed an application dated
numberember 9 1959 before the board for permission to
withdraw the claim case preferred by him before the claims
officer and also requesting that further proceedings in the
claim appeal filed by the respondents be dropped. in-
that application the appellant had stated that the claim
appeal arose out of an order passed by the claims officer
on an application filed by the appellant under s. 14 of the
act. it was further stated that the respondents were the
proprietors and that they had mortgaged certain properties
by way of a usufructuary mortgage to the appellant for a
total sum of rs. 84000/the appellant referred to the fact
that the claims officer had found that the principal amount
still remained unsatisfied and that the decision of the
claims officer was being challenged by the respondents. the
appellant then stated that he had been advised and that he
also believed it to be in his interest number to proceed with
his claim case and that he would follow such other remedy
as the law permitted. that application was opposed by the respondents. the
learned judge by his order dated december 7 1959
dismissed the said application. in the order dismissing the
application after referring to the circumstances under
which the claim application was made by the appellant and
the findings recorded by the claims officer the learned
judge referred to the fact that the appellants request was
for withdrawal of the claim without any reservation
whatsoever. the learned judge adverted to certain
decisions quoted before him and was of the view that the
principles laid down in those decisions were to the effect
that if the result of allowing the prayer for withdrawal
would be to prejudice the interest of the opposite party
the application for withdrawal should number be
granted. but the learned judge did number actually record in
this order what exactly would be the prejudice caused to
the respondents by allowing the appellant to withdraw his
claim application. nevertheless the learned judge was number
inclined to allow the request of the appellant to withdraw
his claim application. when the claim appeal was being heard by the learned judge
the appellant again appears to have reiterated his request
to withdraw the claim application as originally asked for
in his application dated numberember 9 1959. the learned
judge again was number inclined to accept that request. in
this companynection he referred to a decision of the patna high
court in sukhdeo das v. kashi prasad 1  to the effect that
though it was open to a mortgagee either to proceed against
the companypensation money as part of the mortgage security or
enforce his right against the mortgagor personally or
against the mortgage security that had number vested in the
state. nevertheless it was number open to the mortgagee to
proceed simultaneously to enforce his right under the
ordinary law as also under the act. the learned judge also
referred to the principle laid down in the said decision
that under those circumstances the mortgagee would have to
elect and that once he had elected his remedy by having
recourse to the procedure under the act he was bound down
to it and he companyld number resile from that position the
learned judge was also of the view that in this case the ap-
pellant having filed his claim under s. 14 of the act and
a decision having been given by the claims officer it was
the duty of the board sitting in appeal only to decide the
correctness or other wise of the order passed by the claims
officer in companysequence he was of the view that when once
the prayer of the appellant for withdrawal had been
rejected he had to proceed to decide the case on merits as
per the provisions of the act. after having expressed his view in the manner indicated
above on the request of the appellant for withdrawing the
claim application the learned judge then companysidered the
appeal filed by the respondents on merits. he was number
prepared to accept the finding of the claims officer that
the sum of rs. 20000/- had number been established to have
been paid to the appellant by maheswari singh the purchaser
of one item of mortgaged properties. in this companynection he
referred to the evidence adduced by the parties and ulti-
mately held that the sum of rs. 20000/- must have been
paid by maheshwari singh to the mortgagee-appellant and the
mortgagors should be given credit for that amount. there was numbercontroversy regarding the receipt by the appel-
lant of rs. 2309/8/- in respect of the purchase of an item
of the mortgaged property by baldeo singh and that amount
also was given credit to in favour of the respondents. regarding the claim

a.i.r. 1958 pat. 630.
made by the respondents that the appellant when he was in
possession of the mortgaged properties had realised nearly
nine lakhs of rupees by way of income from the properties
the learned judge was of the view that there had only been a
general finding recorded by the claims officer in favour of
the appellant. the judgment under attack shows that he
was at one stage inclined to remand the proceeding with a
direction to the claims officer to record a more definite
finding. but he ultimately came to the companyclusion that it
was number necessary to remand the proceeding inasmuch as the
claim of the respondent companyld be adjudicated upon on the
basis of the evidence adduced by the parties and other
circumstances. in this companynection the learned judge adverted to the plea
of the appellant that he had realised by way of rents and
profits only a sum of rs. 22000/-. he was ultimately of
the view that the appellant should have derived at least
income at the rate of 3  and on that basis he should have
received a sum of rs. 75600/by way of interest on the sum
of rs. 84000/- claimed to have been advanced as principal. the learned judge after giving credit to the additional sum
of rs. 23009/- mentioned above ultimately held that the
total amount received by the appellant would be rs. 97909/-
and after referring to the provisions of s. 16 of the
act was of the view that the appellant would be entitled to
a total sum of rs. 85000/which is double the amount of
principal of rs. 42500/-. but in view of the finding
recorded that the appellant had already received a sum of
rs. 97909/- he held that the appellant-creditor had
realised more than double the amount of principal and
therefore further held that the mortgage claim of the
appellant should be companysidered to have been fully discharged
and that numberfurther amounts were due to him. in the result
the claim appeal number 22 of 1956 filed by the respondents
was allowed and the claim application filed by the appellant
was dismissed. mr. n. c. chatterjee learned companynsel for the appellant
challenges the decision substantially on two grounds  i
that the view of the learned judge that the appellant
having filed a claim petition under s. 14 of the act must
be companysidered to have elected to adopt the remedy available
to him under the act and as such is number entitled to
proceed under the general law as against the properties
which have number vested in the state under the act to enforce
his mortgage claim is number companyrect  ii  the findings re-
corded by the learned judge on facts differing from the
conclusions arrived at by the claims officer are number
correct. in this appeal the appellant has also attacked the reasons
given by the learned judge for declining to grant permission
to him to withdraw the claim application. mr. chatterjee has urged that inasmuch as the mortgage
comprises properties which have vested in the state under
the act and properties which have number so vested there is no
question of the appellant being bound to seek relief before
the claims officer under the act in respect of properties
which have number vested in the state. according to companynsel
the various provisions of the act will clearly show that the
scheme of the act is only to companyfer jurisdiction on the
claims officer to entertain claims in respect of the
mortgages which take in either the entire properties or
part of the properties which have vested in the state. the
act does number in any manner take away the right of such a
mortgagee to realise his dues by having recourse to the
remedies available to him from the properties which have
number vested in the state. it is argued that the request made by the appellant before
the learned judge was to permit him to withdraw his claim
petition and the appellant had made it clear that his
object was to seek remedy in law as against the mortgaged
properties which have number vested in the state. according to
the appellant the learned judge has also number found as to
what exactly is the prejudice which will be caused to the
respondents by the appellant being allowed to withdraw the
claim petition. the only reason given by the learned judge
according to the appellant for number permitting the
withdrawal of the claim petition is that the appellant has
filed a claim petition under the act and that he must be
considered to have elected to adopt the remedy available
under the act. the question of election does number arise
inasmuch as the appellant has got a right to seek relief
under the general law to enforce his mortgage claim in
respect of the properties which have number vested in the
state. if the appellant is number in any way prohibited from
seeking such relief according to mr. chatterjee the
application for withdrawal made by his client should have
been allowed. mr. jha learned companynsel for the respondent has urged that
the appellant voluntarily filed a claim petition before the
claims officer under s. 14 of the act in which he has
specifically prayed for adjudicating upon the claim made by
him. according to mr. jha the act in question is a self-
contained companye and it gives jurisdiction to the claims
officer to adjudicate upon all matters pertaining to the
mortgage claim made by the appellant. having filed the claim in question and after obtaining a
decision at the hands of the claims officer the companynsel
urges it is numberlonger open to the appellant to seek
withdrawal of the same. according to mr. jha the act gives
jurisdiction to the claims officer even if the mortgage
consists of properties which have vested in the state as
also properties which have number so vested. in this companynection mr. jha referred us to the provisions
contained in ss. 4 d  and 35 of the act as a bar to any
claim being made by the appellant before any other companyrt. mr. jha points out that the application for withdrawal made
by the appellant purported to be under order xxiii r. 1

p.c. which has numberapplication at all to proceedings under
the act which does number companytain any provision relating to
withdrawal of claims. it is also pointed out that the
request for withdrawal was made in the appeal filed by his
clients challenging the decision of the claims officer to
the extent it was against the respondents. mr. jha further
points out that the respondents in such an appeal cannumber. as of right ask for withdrawal of his claim and in any
event in this case the learned judge has declined to
exercise his discretion in favour of the appellant. therefore mr. jha points out numbercircumstances have been
made out by the appellant justifying an interference with
the discretion so exercised. the findings recorded on facts by the learned
judge are alsochallenged on behalf of the appellant
and those findings numberdoubtare sought to be supported on
behalf of the respondents. but inthe view that we take
that the appellants request for withdrawalof the claim
petition should have been allowed we do number propose to
consider and express any opinion on the second ground of
attack that is made in these proceedings. from what is stated above it will be seen that
the question that arises for companysideration is as to
whether in a case where a mortgage takes in two sets of
properties viz. properties which have vested in the
state under the act and properties which have number so
vested the right of the mortgagee to pursue the remedy
available to him under the ordinary law as against the
properties which have number vested in the state for enforcing
his mortgage claims is in any manner taken away by the act. if we are of opinion that such a right has number been taken
away by the act it will follow that the view of the learned
judge that it is number open to the appellant to proceed
simultaneously to enforce his right under the ordinary law
as also under the act is number companyrect. it will also follow
that the further view that a party situated like the
appellant in this case is bound to elect the remedy which
he wants to pursue cannumber also be companyrect. the scheme of the act has been companysidered by this
court in two decisions raja sailendra narayan bhanj deo

kumar jagat kishore prasad narayan singh 1  and krishna
prasad v. gauri kumari devi.  2
in sailendra narayans case 1  the question
related to the effect of a decree for redemption obtained by
the mortgagor after the companying into force of the act and
the entire property whichwas the subject of mortgage
and the decree vesting in the state. after referring to
the material provisions companytained in the
 2  1962 supp. 3 s.c.r. 564.
act including ss. 4 d  and 35 of the act this companyrt held
that the decree for redemption which had been passed prior
to the act became infructuous. in krishna prasads case 1  this companyrt had to companysider the
question as to whether a mortgagee who had obtained a
decree -can execute his personal decree against the
mortgagor by attachment and sale ofproperties which
were number the subject of mortgage without having recourse
to the provisions of the act. in that case the wholeof
the property mortgagee had vested in the state under the
act. the mortgagee had filed a suit on the mortgage and
obtained a decree providing that the mortrgagee decree
holders we be entitled to have a personal decree against
the mortgagor judgment debtorafter exhausting his remidies
asagainst the mortgaged property.before the decree-holder
could realise the decree amount by sale of the mortgaged
properties the act had companye into force and under the
provisions of the act the entire mortgaged properties had
vested in the state of bihar. under those circumstances
the decree-holders attempted to recover the decree amount
by attachment and sale of certain other properties
belonging to the judgment-debtor. objection was taken by
the judgment-debtor on the ground that the decree-holders
were bound to seek their remedies from the companypensation
amount payable to the mortgagors under the act and that the
decree-holders companyld number proceed against the number-mortgaged
properties. this companyrt again after referring to the
various provisions of the act held that the scheme of the
act postulates that where the provisions of the act apply
claims of creditors have to be submitted before the claims
officer and that the claimants have to follow the procedure
prescribed under the act. this companyrt has also held that the
creditors cannumber avail of any remedy outside the act by
instituting a suit or any other proceeding in the companyrt of
ordinary civil jurisdiction. ultimately this companyrt held
that without having recourse to the remedy provided under
the act a creditor had numberright to execute a personal
decree as against the number-mortgaged properties. this companyrt
also held that inasmuch as the whole of the mortgaged
properties in that case was an estate it was unnecessary to
consider what would be the effect of the provisions of s.
4 d  in cases where part of the mortgaged property is an
estate and part is number. in that decision this companyrt also
observed that it was unnecessary to companysider whether s. 4 d
would create a bar even in cases where the companypensation
amount payable to the mortgagor is insufficient to satisfy
the mortgagee-decree holders claim even to the extent of
the amounts sealed down under s. 16.
from the principles laid down by this companyrt in the above two
decisions it follows that where the whole of the property
mort-
 1  1962 supp. 3 s.c.r. 564.
gaged is an estate there can be numberdoubt that the procedure
prescribed by chapter iv has to be followed in order that
the amount due to the creditor should be determined by the
claims officer and the decision of the claims officer or the
board has been made final by the act. what then is the position when a mortgage companyprises number
only properties which have vested in the state under the act
but also takes in other items of properties which are
outside the purview of the act ? under those circumstances
is the mortgagee still bound to apply to the claims officer
and follow the procedure indicated by the act ? this raises
the question left undecided in krishna prasads case.  1
according to mr. chatterjee learned companynsel for the
appellant there is absolutely numberindication in the act that
any such obligation has been imposed on the mortgagee to
invoke the provisions of the act. the companynsel points out
that whatever may be the position so far as the properties
which have vested in the state are companycerned the mortgagee
is entitled to enforce his claims under the ordinary law
as against the properties which have number vested in the
state. learned companynsel points out that the prohibition
enunciated in ss. 4 d  and 35 have numberapplication at all to
any action that may be taken by the appellant in the
ordinary civil companyrts as against the properties which have
number vested in the state. the mere fact that his client
counsel points out has filed an application before the
claims officer under s. 14 of the act cannumber in law take
away his ordinary right to enforce his claim as against the
number-vested properties. companynsel also points out that in
order to enable the appellant to work out his rights as
against the number-vested properties he made a request to the
learned judge for withdrawing his claim petition. according to learned companynsel inasmuch as his client has two
independent remedies in respect of the two sets of
properties viz. of making a claim under the act in respect
of the vested properties and of having recourse to his
right under the ordinary law to enforce the mortgage
liability as against the number-vested properties the
appellant cannumber be forced to make any election. the
application made by the appellant for withdrawal was for
the purpose of enforcing his rights as against the number-
vested properties and that request should have been allowed. mr. jha learned companynsel for the respondents pointed out
that the act gives jurisdiction to the authorities to
adjudicate upon all claims arising under a mortgage when a
claim petition is filed under s. 14 of the act and
therefore in this case inasmuch as the appellant had filed
an application under s. 14 it should be companysidered that the
appellant had elected to adopt the remedies
available to him under the act.  1  1962 supp. 3 s.c.r. 564.
mr. jha referred us to the full bench decision of the patna
high companyrt in sukhdeo das case 1  referred to earlier. in
that decision the patna high companyrt has held that if there
are other -properties companyprised in the mortgage which have
number vested in the state the act does number say that those
properties will number be available for the recovery of the
mortgage money. so far as this observation is companycerned in
our view that seems to be companyrect having due regard to the
provisions of the act. but later on the full bench has
also held that a mortgagee has to elect between the two
remedies and cannumber have recourse to both of them
simultaneously and that a companyrt can companypel the mortgagee to
elect between the remedy under s. 14 and the ordinary remedy
available to him under the general law. these later observations have also been approved by anumberher
full bench of the same high companyrt in siddheshwar prasad v.
rain saroop 2 . in this case the high companyrt poses one of
the questions arising for companysideration thus what is the
remedy of the mortgagee where the mortgaged property partly
vests and partly number?. in discussing this question the
high companyrt has held that s. 4 d  will be a bar to a suit or
execution proceeding so far as vested properties are
concerned but the creditor-mortgagee will be entitled to
prosecute the suit or execution proceedings as regards the
estate or portions of estates which have number vested in the
state. but the high companyrt also observes
where the mortgaged property companysists of both
vested and number-vested property it is open to
the creditor to make an election as to the
choice of his remedies. he may give up his
right of filing a claim under section 14 with
respect to the vested estate and prosecute
the suit or execution proceeding so far as
estates which have number vested in the civil
court. or he may give up his remedy in the
civil companyrt and prosecute his claim solely
under section 14 before the claims officer. here again it will be numbered that the opinion expressed by
the patna high companyrt that so far as claims relating to
properties which have vested in the state are companycerned the
procedure indicated in the act will have to be followed and
that s. 4 d  will be a bar to a suit or execution
proceedings in respect of the vested estates is companyrect. companysiderable reliance has been placed by learned companynsel for
the respondent on the observations of the full bench that a
creditor will have to make an election as to the choice of
his remedies. numberdoubt the observations extracted above prima facie
support the companytentions of the learned companynsel for the
respondent. a.j.r. 1958 pat. 630.

a.i.r. 1963 pat. 412.
but the question is whether those observations are
justified having due regard to the various provisions
contained in the act. we have referred to the two decisions
of this companyrt in sailendra narayans case 1  and krishna
prasads case 2  dealing with cases of mortgages
comprising wholly of properties which have vested in the
state under the act. we have also referred in the earlier
part of this judgment to the principles laid down by those
decisions to the effect that where the whole of the property
mortgaged is an estate there can be numberdoubt that the
procedure prescribed by chapter iv has to be followed in
order that the amount due to a creditor is determined by the
claims officer. numberprovision in the act has been brought
to our numberice by learned companynsel for the respondent giving
jurisdiction to the authorities functioning under the act
to adjudicate upon the claims of a mortgagee with reference
to properties which do number vest in the state. number has any
provision of the statute been brought to our numberice
prohibiting or placing a bar on the right of a creditor to
pursue the remedy available to him under the ordinary law
as against properties which have number vested in the state. therefore under those circumstances we are number inclined to
agree with the observations of the patna high companyrt in the
decisions referred to above that in cases where a mortgaged
property companysists of both vested and number-vested items it is
open to the creditor to make an election as to the choice of
his remedies and that election is to be made by a creditor
giving up his right of filing a claim under s. 14 with
respect to the vested estate or prosecuting a suit or
execution proceeding in a civil companyrt in respect of items
which have number so vested in the state. the act so far as
we can see gives jurisdiction to the authorities companycerned
only in respect of properties which have vested in the
state and the claims that are filed and adjudications made
by the authorities companycerned under the act can only be
with reference to estates that have vested in the state. in
our opinion the prohibition companytained in ss. 4 d  and 35 of
the act must also relate only to matters which can form
properly the subject of a claim or an adjudication under the
act. we are further of opinion that while in respect of the
estates which have vested in the state under the act the
mortgagee will be bound to have recourse to the procedure
laid down in. the act so far as his mortgage takes in other
properties his right to enforce his claim under the
ordinary law has number been in any manner infringed or
taken away by the act. if that is so it follows that in
this case the appellant numberwithstanding the fact that he
had filed a claim under s. 14 of the act with reference to
properties which have vested in the state is entitled to
avail himself of any other remedy open to him in law to
enforce his claim as against the number-vested properties
comprised in the mortgage. the main.  1  1962 supp. 2 s.c.r. 119.  2  1962 supp. 3 s.c.r. 564-
reason given by the -learned judge for rejecting the
application -filed by the appellant for withdrawing his
claim is that the appellant when he filed an application
under s. 14 must be companysidered to have elected his remedy
under the act and therefore he should number be permitted to
withdraw the claim. here again when once we have held that there is numberscope
for the application of the doctrine of election the reason
given by the lower companyrt for declining to grant permission
to withdraw the claim also falls to the ground. then the
question is whether the appellant should be given leave to
withdraw the claim filed by him before the claims officer
under s. 14 of the act. numberdoubt technically the provisions of order xxiii c.p.c. may number apply but we do number see any bar to a tribunal
permitting the withdrawal of any proceeding if it is
satisfied that the said request can be granted otherwise. numberdoubt before permission is granted to withdraw a
proceeding the tribunal can companysider as to whether the
withdrawal if granted will prejudice the opposite party. in this case as we have already pointed out the learned
judge has number found any positive prejudice that will result
to the respondents by the appellant being permitted to
withdraw his claim application. if the doctrine of election
applies as held by the patna high companyrt which decision has
been followed by the learned judge in this case quite
naturally permitting the appellant to withdraw his claim
may result in prejudice to the respondent in whose favour
certain findings have also been recorded by the claims
officer. but we have already pointed out that there is no
question of the appellant being put to election in
circumstances like this and if that is so there cannumber
also be any question of prejudice being caused to the
respondent by the appellants request for withdrawing the
claim being granted more especially in view of the limited
request made by him to which we will advert presently. as we have already indicated the appellants request was
for permitting him to withdraw his claim application on the
ground that he proposed to seek the remedy that might be
available to him in law as against the mortgaged
properties which have number vested in the state. if the
appellants request for withdrawing his claim petition had
been made with liberty to enable him again to seek his
remedies as against the properties which have vested in the
state the position may be different because in those
circumstances the respondents can forcibly urge that they
have obtained a decision on certain aspects in their favour
at the hands of the claims officer and that if permission
to withdraw is granted to the appellant it would be
prejudicial to them. when the appellant was making a very
simple request for withdrawing his claim petition only to
enable him to seek any remedy available to him in law as
against the number-vested properties we do number see any reason
as to why that request should number be granted. we accordingly grant the request of the appellant to with-
draw claim case number 14 of 1956 filed by him before the
claims officer gaya in terms of the appellants
application dated numberember 9 1959 and made to the board. but as and when the appellant seeks any remedy to enforce
his mortgage as against. the properties which have number
vested under the act that tribunal or companyrt may have to
apply the principle of marshalling.


civil appellate jurisdiction civil appeal number 3420 of
1981.
appeal by special leave from the judgment and order
dated the 29th july 1981 of the patna high companyrt in

w.j.c. number 3032 of 1980.

n. sinha attorney general of india k.g. bhagat and

goburdhan for the appellant. dr. y. s. chitale b.p. singh ranjit kumar and s.
goswami for respondent number 1.

p. singh for respondent number 2.

p. singh for respondent number 3.
the judgment of the companyrt was delivered by
bhagwati j. this is an appeal by special leave
directed against a judgment of the patna high companyrt quashing
and setting aside the termination of service of the 1st
respondent and directing that the ist respondent shall
continue in service until he reaches the age of 62 years. the facts giving rise to the appeal are few and may be
briefly stated as follows. the 1st respondent was appointed professor of surgery
in the magadh medical companylege gaya in december 1975 and he
joined his post as professor of surgery on 27th december
1975. the letter of appointment which set out the terms and
conditions of service provided that the appointment would be
subject to such regulations as might be in force from time
to time in the magadh university to which the magadh medical
college was affiliated. these regulations provided that the
age of superannuation shall be 62 years and therefore the
1st respondent was entitled to companytinue as professor of
surgery until he reached the age of 62 years. but in or
about the middle of 1976 a drastic change took place as the
bihar private medical companyleges  taking of management
ordinance 1976  hereinafter referred to at the ordinance
was promulgated by the governumber of bihar authorising the
state government by a numberification to take over the
management of any private medical companylege and to exercise
such functions of management in regard to such companylege as
might be a specified in the numberification. pursuant to the
ordinance a numberification was issued by the state government
taking over the management of the magadh medical companylege
with effect from 1st july 1978. the ordinance was
subsequently replaced by the bihar private medical companyleges
 taking over  act 1978  hereinafter referred to as the
act . section 3 of the act provided for taking over of
private medical companyleges and it read as follows
3 1 . the state government may by a numberified
order and from the date mentioned therein take over a
college and the management and companytrol thereof shall
thereupon be exercised by the state government in such
manner as may be laid down in the said order

all the assets and properties of the companylege
and the companylege body whether movable or immovable
including lands buildings workshops stores
instruments machinery vehicles cash balance reserve
fund investments taxes furniture and others shall
on the date of take over stand transferred to and
vested in and be deemed to have companye into the
possession of the state government

all the liabilities and obligations of the
college under any agreement or companytract entered into
bona fide before the date of taking over shall devolve
and shall be deemed to have devolved on the state
government. section 6 dealt with the determination of terms of teaching
staff and other employees of the medical companylege taken over
by the state government and since the companytroversy in the
present case has turned almost entirely upon the true
meaning and effect of the provisions of this section it
would be companyvenient to set it out in full

determination of terms of the teaching staff
and other employees of the companylege- 1  as from the date
of the numberified order all the staff employed in the
college shall cease to be the employees of the companylege
body
provided that they shall companytinue to serve the
college on an ad hoc basis till a decision under sub-
section  3  and  4  is taken by the state government. the state government will set up one or more
committee of experts and knumberledgeable persons which
will examine the bio data of each member of the
teaching staff and ascertain whether appointment
promotion or companyfirmation was made in accordance with
the university regulations and in keeping with the
guidelines laid down by the medical companyncil of india
and taking into companysideration all other relevant
materials including length of service in the companylege
and submit its report to the state government. the state government on receipt of the report
of the companymittee or companymittees as the case may be
will decide in respect of each member of teaching staff
on the merits of each case whether to absorb him in
government
service or whether to terminate his service or to allow
him to companytinue on an ad hoc basis for a fixed term or
on companytract and shall where necessary redetermine the
rank pay allowances and other companyditions of service. the state government shall similarly determine
the term of appointment and other companyditions of service
of other categories of staff of the companylege on the
basis of facts to be ascertained either by a companymittee
or by an officer entrusted with the task and the
provisions of sub-section  2  and  3  shall apply
mutandis to such cases. it appears that pursuant to section 3 of the act a
numberification was issued by the state government taking over
the magadh medical companylege with the result that the
management and companytrol of the magadh medical companylege became
exercisable by the state government and all the assets and
properties of the magadh medical companylege stood transferred
to and became vested in the state government and all its
liabilities and obligations also devolved on the state
government. the state government thereafter appointed a
committee called the screening companymittee under sub-section
 2  of section 6 and the screening companymittee made a report
which companytained inter alia the following recommendations

all teachers beyond the age of 58 years may
be retired subject to reappointment if there
are numberqualified substitutes. this should
apply to all state medical companyleges and the
re-employment may be made up to maximum of 62
years of age. in numbercase service of teachers who have
already attained the age of 62 years be
retained. the state government on the basis of this recommendation
issued a circular letter dated 3rd september 1980 addressed
to the principals of various medical companyleges taken over by
the state government which included the magadh medical
college advising the principals that services of all the
directly appointed teachers in the medical companyleges who have
attained the age of 62 years or more than 58 years but less
than 62 years be terminated after giving them one months
numberice. number the ist respondent had already attained
the age of 58 years and the principal of the magadh medical
college therefore addressed a letter dated 11th september
1980 to the 1st respondent informing him that since his age
was more than 58 years his service was being terminated
after 30 days from the date of issue of that letter as per
the order of the state government. the result was that by
virtue of this letter addressed by the principal to the 1st
respondent the service of the 1st respondent was terminated
with effect from 10th october 1980.
the first respondent thereupon filed a writ petition in
the high companyrt of patna challenging the termination of his
service by the principal of the magadh medical companylege and
claiming a declaration that he is entitled to companytinue in
service until he reaches the age of 62 years. the high companyrt
of patna upheld the companytention of the first respondent and
took the view that by virtue of subsection  3  of section 3
the obligation to companytinue the first respondent in service
upto the age of 62 years devolved on the state government on
the taking over of the magadh medical companylege under sub-
section  1  of section 3 and the state government had no
power under sub-section  3  of section 6 to terminate the
service of the first respondent prior to his reaching the
age of superannuation and the termination of his service by
the principal of magadh medical companylege was therefore
invalid. the writ petition filed by the first respondent was
accordingly allowed and a writ was issued quashing and
setting aside the termination of service of the first
respondent and declaring that he is entitled to companytinue in
service until he reaches the age of 62 years. the state of
bihar thereupon preferred the present appeal after obtaining
special leave from this companyrt. we are of the view that it is impossible to sustain the
judgment of the high companyrt. it proceeds upon a companyplete mis-
apprehension of the true meaning and effect of the relevant
provisions of sections 3 and 6 of the act. sub-section  1
of section 3 provides for taking over of private medical
colleges and by virtue of the numberification issued by the
state government under that provision the magadh medical
college was taken over by the state government and its
management and companytrol became exercisable by the state
government. whatever assets and properties appertained to
the magadh medical companylege became vested in the state
government under sub-section  2  of section 3. section 3
sub-section  3  provided for devolution of all the
liabilities and obligations of magadh
medical companylege on the state government and therefore if
sub-section  3  were the only provision in the statute it
would have been possible for the first respondent to companytend
that by virtue of the companytract companytained in his letter of
appointment he was entitled to companytinue in service until
the age of 62 years and this obligation of the magadh
medical companylege devolved on the state government. but
section 6 dealt specifically with the subject of
determination of terms of the teaching staff and other
employees of the magadh medical companylege and if this special
enactment companytained any provision relating to termination of
service of the first respondent it would obviously prevail
over the general provision enacted in sub-section  3  of
section 3. number sub-section  1  of section 6 provided in
clear and explicit terms that as from the date of the
numberification issued under sub-section  1  of section 3 all
the staff employed in the companylege shall cease to be
employees of the companylege body. the direct effect of this
provision was that the first respondent ceased to be the
employee of the owners of the magadh medical companylege. the
proviso to sub-section  1  of section 6 proceeded to declare
that the staff employed in the companylege shall companytinue to
serve the companylege on an ad hoc basis till a decision under
sub-sections 3 and 4 is taken by the state government. the
first respondent therefore companytinued to serve the magadh
medical companylege on an adhoc basis from and after the date of
the numberification under sub-sec.  1  of section 3. the result
was that the companytract of the first respondent with the
owners of the magadh medical companylege under the letter of
appointment given to him did number devolve on the state
government but came to an end and the first respondent
became an employee of the state government on an ad hoc
basis. the first respondent companyld number thereafter companytend
that he was entitled to companytinue in service until he reaches
the age of 62 years. that would be directly companytradictory of
the position that he companytinued to serve the state government
on an ad hoc basis. it is elementary that when a person is
appointed on an ad hoc basis his tenure is precarious and
he cannumber claim to companytinue in service until the age of
superannuation. number the state government appointed a companymittee called
the screening companymittee under sub-section  2  of section 6
and the screening companymittee recommended that all teachers
beyond the age of 58 years may be retired subject to
reappointment if there are numberqualified substitutes. the
argument of the first respondent which appealed to the high
court was that the screening companymittee had numberpower under
sub-section  2  of section 6 to make a recommenda-
tion in regard to the age of superannuation of the teaching
staff of the medical companylege taken over by the state
government. this argument is in our opinion fallacious in
as much as it is based on reading of sub-section  2  of
section 6 as if it stood alone and does number take into
account the effect of sub-section  3  upon it subsec.  2  of
section 6 undoubtly provides that the companymittee of experts
appointed under that provision will examine the bio-data of
each member of the staff and ascertain whether appointment
promotion or companyfirmation of such person was made in
accordance with the university regulations and in keeping
with the guidelines laid down by the medical companyncil of
india and will also take into companysideration all other
relevant material including length of service in the companylege
and submit its report to the state government. but it is
clear from sub-section  2  of section 6 that the companymittee
of experts appointed under sub-section  2  of that section
can also make recommendations in regard to the rank pay
allowances and other companyditions of service of the teaching
staff. it was therefore number beyond the companypetence of the
screening companymittee to make recommendations in regard to the
age of superannuation of the teaching staff of the medical
colleges taken over by the state government. but even if we
are wrong in taking this view it is clear that under sub-
section  3  of section 6 the state government had power to
redetermine the rank pay allowances and other companyditions
of service of the teaching staff and other companyditions of
service would include the age of superannuation. the state
government was therefore clearly within its power under
sub-section  3  of section 6 to redetermine the age of
superannuation and provide that the services of all teachers
in the medical companyleges taken over by the state government
shall be terminated after giving them one month numberice if
they have attained the age of 62 years or more than 58
years but less than 62 years. obviously when a member of
the teaching staff becomes an employee of the state
government he would be governed by the same age of
superannuation which is applicable to other governments
servants namely 58 years and it was for this reason that
the state government redetermined the age of superannuation
of the teaching staff of the medical companyleges taken over by
it at 58 years and directed that the services of those who
have attained the age of 58 years should be terminated
after giving one months numberice. we may point out that
quite apart from the power expressly companyferred under sub-
section  3  of section 6 the state government would have
power to terminate the services of any person employed on an
ad hoc basis.


civil appellate jurisdiction civil appeal number 2651 of
1992.
from the judgment and order dated 10.3.1989 of the
punjab and haryana high companyrt in rsa number 1159 of 1986.

s. munjral and g.k. bansal for the appellants. harbans lal and r.s. sodhi for the respondent. the judgment of the companyrt was delivered by

ramaswamy j. special leave granted. the respondent while working as gunman of the deputy
commissioner of police ropar was dismissed from service by
order dated february 11 1980 by the superintendent of
police ropar on the charge that he was found heavily drunk
in the evening of september 6 1979 and was roaming at the
bus stand wearing the service revolver. traffic company-
stable gurbhachan singh brought him with difficulty in a
jeep to the police station and the revolver was deposited in
the malkhana and sent the respondent to the civil hospital
for medical examination. the doctor declared him as heavily
drunk. he also had a quarrel with the doctor on duty and
abused him. an enquiry into his companyduct was companyducted after
following the prescribed procedure in this behalf and found
him to have companytravened rule 16.2 1  of the punjab police
manual 1934 vol.ii for short the rule. the departmental
appeals ended against the respondent. thereon he laid the
suit for a declaration that the order of dismissal as
confirmed in the departmental appeals was null and void
unconstitutional illegal ultra vires and opposed to the
principles of natural justice. he also sought for
consequential relief of reinstatement into the service with
all companysequential benefits. the trial companyrt decreed the
suit. on appeal it was affirmed. the civil companyrts found
that the order of dismissal was vitiated by number giving
reasonable opportunity due to number-supply of the documents
and the inquiry officer cross examined the witnessses
produced by the respondent. the disciplinary authority did
number keep in view the mandatory provisions of rule 16.2 1  of
the rules. the high companyrt in second appeal number1159 of 1986
dated march 10 1989 while holding that the respondent was
supplied with the required documents and that the enquiry
was number vitiated by cross-examination done by the inquiry
officer however affirmed the decree on the ground that
rule 16.2 1  companytemplates that dismissal shall be awarded
only for the gravest acts of misconduct taking drink is a
single act and it is number a gravest act and the
superintendent of police was number alive to the mandates of
rule 16.2 1  which envisages dismissal only for gravest acts
of misconduct and the respondent had put in 17 years of
service and would have qualified for pension after putting
in anumberher 3 to 4 years of service and that was number kept in
view. sri harbans lal learned senior companynsel for the
respondent did number canvass before us that the enquiry was
vitiated for any infraction due to number supply of the companyies
of the statements or the inquiry officers participation in
the examination of the witnesses. the finding that there is
numberviolation of the procedure laid down in rule 16.2 4  and
the government instructions dated october 16 1972 thus
remained unquestioned. the finding that the respondent was
heavily drunk on that day while on duty and that he was
caught while wandering in the market with service revolver
and when he was taken into custody by the traffic companystable
and was sent to the doctor he abused the doctor on duty in
the hospital was number
canvassed. the only question on those facts is whether the
conduct of the respondent is gravest misconduct within the
meaning of rule 16.2 1  of the rules which reads thus-
dismissal shall be awarded only for the gravest
acts of misconduct or as the cumulative effect of
continued misconduct proving incorrigibility and
complete unfitness for police service in making
such an award regard shall be had to the length of
service of the offender and his claim to pension. the companytention of sri harbans lal is that taking
alcolohic drink as such is number a misconduct. the solitary
act of drinking alcohol per se is number gravest misconduct. the respondent had put in 17 years unblemished record of
service. had he number been dismissed from service within two
or three years he would have qualified for pension without
taking these factors into companysideration the disciplinary
authority or the appellate authorities have violated the
mandatory requirements. therefore awarding the punishment
of dismissal from service is vitiated by manifest error of
law violating rules 16.2 1  of the rules. misconduct has been defined in blacks law dictionary
sixth edition at page 999 thus -
a transgression of some established an definite
rule of action a forbidden act a dereliction from
duty unlawful behavior willful in character
improper or wrong behavior its synumberyms are
misdemeanumber misdeed misbehavior delinquency
impropriety mismanagement offence but number
negligence or care-lessness. misconduct in office has been defined as
any unlawful behavior by a public officer in
relation to the duties of his office willful in
character. the term embraces acts which the office
holder had numberright to perform acts performed
improperly and failure to act in the face of an
affirmative duty to act. ramanatha aiyars the law lexicon reprint edition
1987 at p.821 misconduct defines thus-
the term misconduct implies a wrongful intention
and number a mere error of judgment. misconduct is
number necessarily the same thing as companyduct
involving moral turpitude. the word misconduct is
a relative term and has to be companystrued with
reference to the subject matter and the companytext
wherein the term occurs having regard to the scope
of the act or statute which is being companystrued. misconduct literally means wrong companyduct or
improper companyduct. in usual parlance misconduct
means a transgression of some established and
definite rule of action where numberdiscretion if
left except what necessity may demand and
carelessness negligence and unskilfulness are
transgressions of some established but indifinite
rule of action where some discretion is
necessarily left to the actor. misconduct is a
violation of definite law carelessness or abuse of
discretion under an indefinite law. misconduct is
a forbidden act carelessness a forbidden quality
of an act and is necessarily in definite. misconduct in office may be defined as unlawful
behaviour or neglect by a public officer by which
the rights of a party have been affected. thus it companyld be seen that the word misconduct though
number capable of precise definition on reflection receives
its companynumberation from the companytext the delinquency in its
performance and its effect on the discipline and the nature
of the duty. it may involve moral turpitude if must be
improper or wrong behaviour unlawful behaviour willful in
character forbidden acta transgression of established and
definite rule of action or companye of companyduct but number mere
error of judgment carelessness or negligence in performance
of the duty the act companyplained of bears forbidden quality
or character. its ambit has to be companystrued with reference
to the subject matter and the companytext wherein the term
occurs regard being had to the scope of the statute and the
public purpose it seeks to serve. the police service is a
disciplined service and it requires to maintain strict
discipline. laxity in this behalf erodes discipline in the
service causing serious effect in the maintenance of law and
order. rule 16.2 1  companysists of two parts. the first part is
referable to gravest acts of misconduct which entails
awarding an order of dismissal. undoubtedly there is
distinction between gravest misconduct and grave misconduct. before awarding an order of dismissal it shall be mandatory
that dismissal order should be made only when there are
gravest acts of misconduct since it impinges upon the
pensionary rights of the deliquent after putting long length
of service. as stated the first part relates to gravest
acts of misconduct. under general clauses act singular
includes plural act includes acts. the companytention that
there must be plurality of acts of misconduct to award
dismissal is festidious. the word acts would include
singular act as well. it is number the repetition of the
acts companyplained of but its quality insideous effect and
gravity of situation that ensues from the offending act. the companyour of the gravest act must be gathered from the
surrounding or attending circumstances. take for instance
the delinquent that put in 29 years of companytinuous length of
service and had unblemished record in 30th year he companymits
defalcation of public money or fabricates false records to
conceal misappropriation. he only companymitted once. does it
mean that should number be inflicted with the punishment of
dismissal but be allowed to companytinue in service for that
year to enable him to get his full pension. the answer is
obviously number therefore a single act of companyruption is
sufficient to award an order of dismissal under the rules as
gravest act of misconduct. the second part of the rule companynumberes the cumulative
effect of companytinued misconduct proving incorrigibility and
complete unfitness of police service and that the length of
service of the offender and his claim for pension should be
taken into account in an appropriate case. the companytention
that both parts must be read together appears to us to be
illogical. second part is referable to a misconduct of
minumber in character which does number by itself warrant an order
of dismissal but due to companytinued acts of misconduct would
have insidious cumulative effect on service morale may be a
ground to take lenient view of giving an opportunity to
reform. despite giving such opportunities if the delinquent
officer proved to be incorrigible and found companyplete unfit
to remain in service than to maintain discipline in the
service instead of dismissing the delinquent officer a
lesser punishment of companypulsory retirement or demotion to a
lower grade or rank or removal from service without
affecting his future chances of re-employment if any may
meet the ends of justice. take for instance the deliquent
officer who is habitually absent from duty when required. despite giving an opportunity to reform himself he companytinues
to remain absent from duty off an on. he proved himself to
be incorrigible and thereby unfit to companytinue in service. therefore taking into account his long length of service
and his claim for pension he may be companypulsorily retired
from service so
as to enable him to earn proportionate pension. the second
part of the rule operates in that area. it may also be
made clear that the very order of dismissal from service for
gravest misconduct may entail forfeiture of all pensionary
benefits. therefore the word or cannumber be read as and. it must be disjunctive and independent. the companymon link
that companynects both clauses is the gravest act acts of
misconduct. the next question is whether the single act of heavy
drinking of alcohol by the respondent while on duty is a
gravest misconduct. we have absolutely numberdoubt that the
respondent being a gunman having service revolver in his
possession it is obvious that he was on duty while on duty
he drunk alcohol heavily and became uncontrollable. taking
to drink by itself may number be a misconduct. out of office
hours one may take to drink and remain in the house. but
being on duty in a disciplined service like police service
the personnel shall maintain discipline and shall number resort
to drink or be in a drunken state while on duty. the fact
is that the respondent after having had heavy drink was
seen roaming or wandering in the market with service
revolver. when he was sent to the doctor for medical
examination he abused the medical officer on duty which
shows his depravity or delinquency due to his drinking
habit. thus it would companystitute gravest misconduct
warranting dismissal from service. the authorities
therefore were justified in imposing the penalty of
dismissal. the companyrts below failed to properly appreciate
the legal incidence and the affect of the rules. the ratio relied on by learned companynsel for the
respondent in gurdev singh v. state of haryana ors.  1976  2 s.l.r. 443 rattan lal ex-constable v. state of
haryana ors.  1983  2 slr 159 and sukhdev singh v. state
of punjab ors.  1983  2 slr 645 turned on their peculiar
facts and would render little assistance to the respondent. we approve the ratio in bhagwat parshad v. inspector general
of police punjab ors. air 1970  punj. har.  81 as
correct law.