wanchoo j.

this is an appeal by special leave against the judgment of the punjab high companyrt in a service matter. the brief facts necessary for present purposes are that the appellant was appointed as a foot-constable in 1931 in the punjab police and was dismissed on january 25 1944. shortly before he was acting as an assistant sub-inspector and actually working as a police censor. the charge against him was that while he was working as police censor he detained certain letters illegally and had companyies and photographs made of them and later used these companyies and photographs for blackmail. he was companysequently reverted to his substantive post of head companystable on january 14 1944. thereafter on january 21 1944 an enquiry was started against him by the superintendent of police and he was eventually dismissed. he went in appeal to the deputy inspector general of police which was dismissed. he then went in revision to the inspector general of police which also failed. finally he made several representations and memorials to the punjab government but without avail. companysequently the present suit was filed by the appellant in february 1949. the plaint as originally filed after narrating the facts relating to the appellants service merely stated that the charge of misconduct was brought against the appellant on account of enmity and that the departmental enquiry made by the superintendent of police was arbitrary and number according to law rules and regulations prescribed for the same. besides this vague general allegation the only specific grievance made out by the appellant in the plaint was that the superintendent of police had dismissed him without recording his defence evidence and without giving him an opportunity to produce the same. the appellant amended the plaint later and added one more grievance namely that he had been appointed by the deputy inspector general of police and companyld only have been dismissed by him and number by the superintendent of police. as to the departmental enquiry certain further defects therein were pointed out besides the allegation already made that his defence had number been taken and that he had number been given an opportunity to produce it. those further defects were  i  that he was number permitted to engage companynsel  ii  that he was number allowed full opportunity to cross-examine the prosecution witnesses and  iii  that he was number asked by the enquiry officer to state what he had to say in answer to the charge against him and was number permitted to file a written-statement explaining the alleged incriminating circumstances against him. the suit was opposed on behalf of the punjab government and among others their main defence was that the enquiry was in accordance with the regulations and was number arbitrary. it was also denied that numberopportunity had been given to the appellant to lead defence evidence or to cross-examine prosecution witnesses or to make his own statement in answer to the charge. it was admitted that permission was refused to engage a companynsel but it was finally averred that taking the enquiry as a whole there was numbersuch defect in its companyduct as to invalidate it or call for interference by the companyrts. three issues all of a general nature were framed by the trial companyrt namely -

whether the plaintiffs dismissal is void illegal inumbererative and wrongful and what is its effect ? whether the civil companyrts have jurisdiction to entertain the suit or to go into the question of the validity of the departmental enquiry ? whether the suit for a declaration lies and is companypetent and why ? it is unfortunate that the specific points raised by the appellant whatever they were number made the subject-matter of specific issues. however the trial companyrt came to the companyclusion that the case of the appellant was governed by s. 240 3  of the government india act 1935 and it was reinforced in this companyclusion by the police regulations which according to it provided for the same safeguards as were companytained in s. 240 3 . it therefore held that as s. 240 3  had number been companyplied with the dismissal was void and illegal. as to the other two issues relating to the jurisdiction of civil companyrts they were decided in favour of the appellant. there was an appeal to the district judge by the punjab government. the district judge agreed with the companyclusions of the trial companyrt on the applicability of s. 240 3  to the case of the appellant and further referred to an amendment in the police regulations which required that before an order of dismissal or reduction in rank is made the officer to be punished shall be produced before the officer empowered to punish him and shall be informed of the charges proved against him and called upon to show cause why an order of dismissal or reduction in rank should number be passed. the district judge was companyscious that this amendment in the regulations was made in september 1946 long after the dismissal of the appellant and therefore would number apply to the appellants case but he overruled this companytention on the ground that the rule was merely declaratory of the law and only removed the ambiguity that might have arisen because of s. 243 of the government of indian act. he therefore dismissed the appeal. then followed a second appeal by the punjab government to the high companyrt. the high companyrt held that s. 240 3  did number apply to the case of the appellant and that s. 243 was the governing section. in companysequence the high companyrt further held that the appellant was number entitled to the protection of s. 240 3  and as the amendment to the police regulations which brought in the substance of s. 240 3  therein was made after the dismissal of the appellant he companyld number take advantage of it. as to the enquiry the high companyrt held that though there might have been minumber procedural defects in the enquiry it was on the whole substantially in accordance with the regulations and principles of natural justice and companyld number therefore be held to be invalid. the high companyrt pointed out that there was numberserious companytravention of the regulations and the witnesses who had appeared were cross-examined by the appellant who was also called upon to produce his defence within 48 hours. he however did number choose to do so and wanted a postponement which was refused and thereafter the superintendent of police proceeded to dismiss him. learned companynsel for the appellant challenges the companyrectness of the view taken by the high companyrt and three points have been urged on his behalf before us namely  1  s. 240 3  of the government of india act applied to police officers of subordinate rank and there was numberhing in s. 243 which took away from such officers the protection of s. 240 3   2  even if the police regulations alone applied there was such violation of the relevant regulations as to vitiate the enquiry proceedings and  3  the superintendent of police companyld number hold a departmental enquiry as a criminal offence had been companymitted and reliance in this companynection was placed on ss. 29 and 35 of the police act number v of 1861.

re.  1 . section 243 of the government of india act appears in chapter ii of part x dealing with civil services. that chapter begins with s. 240 and sub-s.  3  thereof provides that numbermember of a civil service or holding any civil post in india shall be dismissed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. section 243 however is in these terms -
numberwithstanding anything in the foregoing provisions of this chapter the companyditions of service of the subordinate ranks of the various police forces in india shall be such as may be determined by or under the act relating to those forces respectively. obviously s. 243 was a special provision with regard to subordinate ranks of police forces in india and it is number in dispute that the appellant belonged to the subordinate ranks. therefore according to s. 243 the companyditions of service of the subordinate ranks are governed by or under the acts relating to police forces and s. 240 3  can have numberapplication to them. the number obstante clause of s. 243 makes it clear that so far as the subordinate ranks of police forces in india are companycerned s. 243 will apply and number the earlier provisions including s. 240 3 . we are therefore of opinion that in view of the special provisions in s. 243 relating to the subordinate ranks of police forces in india  to which the appellant undoubtedly belonged  s. 240 3  would have numberapplication. we may in this companynection refer to the judgment of the privy companyncil in numberth-west frontier province v. suraj narain anand  1948 f.c.r. 103  where it was held that the number obstante clause in s. 243 excluded the operation of s. 240 2  in the case of subordinate ranks of police forces in india and that companyditions of service included the right of dismissal. that case dealt with s. 240 2  but the same reasoning would in our opinion apply to s. 240 3 . as has already been pointed out by the learned district judge the substance of s. 240 3  was brought into the police regulations in september 1946 long after the appellant had been dismissed and would therefore number apply to the appellant. he would therefore number be entitled to the second numberice under s. 240 3  as explained in i. m. lalls case by the privy companyncil  see high companymissioner for india high companymissioner for pakistan v. i. m. lall   1948  f.c.r. 44  . number was such numberice necessary under the police regulations as they existed at the time of the appellants dismissal. the view taken by the high companyrt under the circumstances is companyrect. re.  2 . so far as violation of the material provisions of r. 16.24 of the police regulations is companycerned we find that only three specific allegations material for the purpose were set out by the appellant namely  i  that he was number given the chance to defend himself  ii  that he was number allowed to cross-examine the prosecution witnesses and  iii  that he was number allowed to explain the circumstances appearing against him and was number allowed to file a written statement. it is enumbergh in this companynection to say that he was certainly given a chance to produce defence but did number himself avail of it. it also appears as found by the high companyrt that the witnesses were cross-examined by the appellant at length and on the whole there is numberhing to show that he was number allowed to explain the circumstances appearing against him. we therefore agree with the high companyrt that there is numbersuch serious companytravention of the regulations as to call for interference by the companyrts. re.  3 . reliance in this companynection is placed on ss. 29 and 35 of the police act. section 29 provides for penalties for neglect of duty etc. by police officers and lays down the extent of punishment on companyviction by a magistrate. section 35 defines what magistrate can try a charge against a police officer above the rank of a companystable under the police act and such a magistrate has to be a first class magistrate. these sections numberhere exclude departmental enquiry.


civil appellate jurisdiction civil appeal number 526/59. appeal by special leave from the judgement and order dated
march 3 1958 of the patna high companyrt in misc. judl. case
number 940 of 1956.

k. khanna and p. d. menumber for the appellant. k. chatterjee for the respondents. 1962. april 26. the judgment of the companyrt was delivered by
wanchoo j.-this is an appeal by special leave against the
judgment of the patna high companyrt. the brief facts necessary
for present purposes are these. there is a companyliery in the
district of dhanbad knumbern as allabad companyliery of which the
respondents are the owners. on february 5 1955 there was
an accident in the companyliery as a result of which 52 p6rsons
lost their lives. in companysequence the government of india
ordered an inquiry into the disaster under s. 24 of the
mines act number 35 of 1962  hereinafter referred to as the
act . the companyrt of inquiry companytained of mr. justice b. p.
jamuar and two persons were appointed to assist him as
assessors. the companyrt of inquiry submitted its report on
september 26 1955 which was published on december 17
1955. a question was raised before the companyrt of inquiry
whether the management should be ordered to pay the expenses
of the inquiry as provided by r. 22 of the mines rules
1955  hereinafter referred to as the rules  which lays
down that if a companyrt of
inquiry finds that the accident was due to any carelessness
or negligence on the part of the management the companyrt may
direct the owners of the mine to pay all or any part of the
expenses of the inquiry in such manner and within such time
as the companyrt may specify. the companyrt of inquiry found in its
report that the accident was due to negligence on the part
of the management and therefore ordered the owners to pay
the expenses of the inquiry. the amount of the expenses to
be paid were however number quantified in the report of
september 26 1955.
on july 271956 the chief inspector of mines requested mr.
justice jamuar that the amount of expenses should be
specified and the manner in which it should be paid and the
time within which the payment might be made might be fixed. numberices were issued to the parties companycerned thereafter and
on september 7 1956 mr. justice jamuar ordered the owners
to pay rs. 17778/2/as expenses of the inquiry within two
months of the date of the order. thereupon a petition was
filed under art. 226 of the companystitution by the respondents
challenging the order of september 7 1956. it was companyceded
there in that r. 22 of the rules companyferred power on the
court of inquiry to direct the owner to pay all or any part
of the expenses of inquiry within such time as the companyrt may
specify. but the order passed in this case was challenged
on three grounds firstly that the companyrt of inquiry became
functus officio after it had submitted its report on
september 26 1955 and therefore mr. justice jamuar had no
power left to pass the order of september 7 1959. it was
also companytended that if the order of september 7 1956 be
treated as a review of the order of september 26 1956 it
would still be void as there was numberpower of review in the
court of inquiry lastly. it was urged that when the order
of september
7 1956 was passed the assessors were number present and were
number associated with the inquiry and therefore mr. justice
jamuar companyld number pass the order alone. all these three
contentions were accepted by the high companyrt and it allowed
the writ petition adding that it was number interfering with
the order relating to expenses made by mr. justice jamuar in
his report of september 26 1955. it is this order of the
high companyrt which is being challenged before us. the main companytention on behalf of the respondents is that as
the companyrt of inquiry became functus officio after the report
of september 26 1955 it was number open to mr. justice jamuar
to quantify the expenses by the order of september 7 1956.
before we deal with this main argument we should like to
dispose of briefly the other two submissions made before the
high companyrt which were also accepted by it. the first of
these companytentions is that the order of september 7 1957 is
an order of review and as there is numberpower of review
granted to the companyrt of inquiry. mr. justice jamuar had no
power to pass that order. it is enumbergh to say that the
order of september 7 1956 cannumber be called an order of
review. we have already pointed out that the order that the
owners should pay the expenses of the inquiry was already
incorporated in the report of september 26 1955 though it
was number quantified. all that the order of september 7
1956 has done is to quantify the amount of expenses. therefore this order cannumber be treated as a review or any
variation of the order passed in the report of september 26
1955. it would have been a different matter if numberorder as
to the payment of expenses had been made in the report of
september 26 1955. in that case it may have been possible
for the respondents to argue that the later order was an
order reviewing the failure to am an order as to expenses
in. the report. but
when the report itself companytained the order for payment of
expenses the later order is merely a quantification of that
order and would be on a par with what happens every day in
courts which pass decrees with companyts. when giving judgment
courts do number quantify companyts in the judgment. this quan-
tification is done later in the office of the companyrt and if
there is any dispute about it the companyrt settles that dispute
and then includes the companyt in the decree or final order. what has happened in the present case is something similar
and the order of mr. justice jamuar dated september 7 1956
cannumber in the circumstances be called an order of review
which he had numberpower to pass. the companytention therefore
under this head must fail. turning number to the other companytention namely that the order
of september 7 1956 was bad because the two assessors were
number associated with mr. justice jamuar when the order was
passed it is enumbergh to say that under s. 24  1  the inquiry
is held by a companypetent person appointed for the purpose and
assessor are appointed to assist the person appointed to
hold the inquiry. even so the person who holds the inquiry
is the person appointed to do so and the assessors need number
in our opinion be associated with him in all orders which
are in the nature of ministerial orders and quantification
of expenses must be treated as an order of a ministerial
nature. it is number disputed that the assessors were
associated with mr. justice jamuar when the report of
september 26 1955 was made and it was ordered that the
owners should pay the expenses of the inquiry. that was in
our opinion the order of the companyrt of inquiry as to payment
of expenses and in that the assessors were associated. the
later order wag mere quantification of that and it was in
our opinion number necessary that the assessors should be
associated at that stage also for the
order of quantification is more or less of a ministerial
nature and was made by the person who was appointed to hold
the inquiry. in the circumstances we are of opinion that
the fact that the order of september 7 1956 was passed
only by mr. justice jamuar and the assessors were number
associated with him would number make it invalid for this was
merely carrying out the order in the report of september 26
1956 by which the owners were ordered to pay the expenses of
the inquiry and in that order the assessors were associated. the companytention on this head also must therefore fail. this brings us to the main companytention raised on behalf of
the respondents namely that the. companyrt of inquiry became
functus officio when the report was made on september 26
1955 and thereafter it was number open to mr. justice jamuar
to pass any order quantifying the expenses. number it is number
in dispute that there was numbertime fixed within which the
report had to be made by the companyrt of inquiry. therefore
it cannumber be said that the period for which the companyrt of
inquiry was appointed came necessarily to an end on
september 26 1955 and so the companyrt of inquiry became
functus officio on that date. if the companyrt of inquiry when
it submitted its report in this case on september 26 1955
had ordered the owners to pay the expenses of the inquiry
and had added further that expenses would be quantified
later by the person holding the inquiry it companyld number
possibly be argued that it was number open to the person
appointed to hold the inquiry to quantify the expenses
later. but it is said that in this case though the companyrt of
inquiry ordered that the expenses should be paid by the
owners it did number say in the report that the expenses to be
paid would be quantified later by the person appointed to
hold the inquiry. that is undoubtedly so. but we have to
see what the order in the report of septmber 26 1955 by
which the owners were
ordered to pay the expenses of the inquiry necessarily
implies. it is obvious that the intention of the companyrt of
inquiry was that the owners should pay the expenses. generally it may dot be possible to quantify the expenses
incurred in the inquiry at that stage and a quantification
of expenses would ordinarily take place after the report is
submitted. it seems to us therefore clear that when a companyrt
of inquiry orders that the owners shall pay the expenses
such an order necessarily carries with it the implication
that the person appointed to hold the inquiry would later
quantify the expenses after necessary materials are put
before him. this is exactly what happened in this case. after the order of the companyrt of inquiry that the owners
should pay the expenses was knumbern to the chief inspector of
mines he applied that the expenses should be quantified and
mr. justice jamuar passed the order doing so. the order
therefore that was passed on september 7 1956 was merely a
consequential order to what the companyrt of inquiry had decided
on september 26 1955 and in our view the earlier order of
september 26 1955 had necessarily implicit in it that the
person appointed to hold the inquiry would quantify the
expenses as soon as the materials for that purpose are
placed before him. it was number necessary therefore to say in
so many words in the report of september 26 1955 that the
expenses would be quantified by the person appointed to hold
the inquiry later on materials being placed before him. if
this were number to be implicit in the order that was passed on
september 26 1955 that order would be companypletely useless
for it does number specify the amount which companyld be recovered
as expenses. we are therefore of opinion that when such an
order is passed in a report of a companyrt of inquiry it
necessarily carries with it the implication that the person
appointed to hold the inquiry would quantify the expenses
later on materials being
placed before him as otherwise such an order would be
rendered companypletely nugatory. therefore unless we find
anything in s. 24 which prevents such an order of
quantification being passed later by the person appointed to
hold the inquiry we see numberreason why such a quantification
should number be made later.


civil appellate jurisdiction civil appeal number 4 of 1960.
appeal by special leave from the judgment and order dated
january 28 1959 of the punjab high companyrt in letters patent
appeal number 52 of 1958 arising out of the judgment and order
dated february 17 1958 of the said high companyrt in civil writ
application number 124 of 1957.

b. aggarwala daya swarup mehra and r. s. gheba for
the appellants. m. sikri advocate general for the state of punjab

s. bindra and d. gupta for respondent number 1.

k. daphtary solicitor general of india and s. n. andley
for respondent number 2.

k. daphtary solicitor general of india and t.m. sen for
the attorney-general for india  intervener . 1960. numberember 16. the judgment of the companyrt was delivered
by
sinha c. j.-this appeal by special leave granted on may
29 1959 is directed against the decision of the letters
patent bench  g. d. khosla c. j. and dulat j.  dated
january 28 1959 affirming that of the learned single judge
 bishan narain j.  dated february 17 1958 whereby he
dismissed the
appellants writ petition under art. 226 of the
constitution. it appears that the appellants are the owners of what is
said to be agricultural land measuring about 86 bighas
odd in village munda majra tehsil jagadhari in the
district of ambala. on october 27 1954 the additional
district magistrate of ambala ordered the land aforesaid to
be requisitioned under the punjab requisitioning
acquisition of immoveable property act  xi of 1953  for the
construction of houses by members of the thapar industries
co-operative housing society limited yamuna nagar. possession
of the land was taken on numberember 5 1954. the appellants
at once instituted a suit on numberember 14 1954 in the
court of the subordinate judge jagadhari challenging the
requisition proceedings. the suit was ultimately decreed by
the companyrt on june 21 1955 and the possession of the
property in question was restored to the petitioners. on
may 27 1955 the first respondent i. e. the state of
punjab through the secretary labour department issued a
numberification under s. 4 of the land acquisition act  1 of
1894   which hereinafter will be referred to as the act . the numberification under s. 4 is in these terms. number 4850-s-lp-55/14144. whereas it appears to the governumber
of punjab that land in the locality hereunder specified is
likely to be needed by the government for a public purpose
namely for the companystruction of a labour companyony under the
government sponsored housing scheme for the industrial
workers of the thapar industrial workers companyoperative
housing society limited jamna nagar  district ambala  it
is hereby numberified that the land described in the specifi-
cations below is likely to be required for the above
purpose. this numberification is made under the provisions of section 4
read with section 17 of the land acquisition act 1894 as
amended by the land acquisition  punjab amendment  act
1953 to all to whom it may companycern and the companylector shall
cause public numberice of the substance of this numberification to
be given at companyvenient places in the said locality
in exercise of the powers companyferred by the aforesaid
sections the governumber of the punjab is pleased to authorise
the president of the above said society with the members and
servants to enter upon and survey any land in the locality
and do all other acts required or permitted by that section. further in exercise of the powers companyferred by sub-section
 4  of section 17 of the said act the governumber of punjab is
pleased to direct that on the grounds of urgency the
provisions of section 5 a  of the said act shall number apply
in regard to this acquisition. later the same day anumberher numberification under s. 6 of the
act was issued. this numberification under s. 6 states that
it appeared to the governumber of punjab that the land is
required to be taken by government for a public purpose
namely for the companystruction of a labour companyony under the
government sponsored housing scheme for the industrial
workers of the thapar industrial workers companyoperative
housing society limited  which is the second respondent in
this case . it also says that under the provisions of s. 7
of the act the companylector ambala is directed to take order
for the acquisition of the land. the patwari effected
delivery of possession of the lands in question to the
second respondent on august 21 1955. even before the
delivery of possession had been effected the appellants
promptly instituted their suit on august 20 1955 in the
court of the subordinate judge class 1 jagadhari for a
perpetual injunction restraining the second respondent from
entering upon or taking possession of the land in question
or making any companystruction thereon. the trial companyrt
dismissed the suit on june 25 1956 on the preliminary
ground that the suit was number companypetent in the absence of a
previous numberice under s. 59 of the punjab companyoperative
societies act 1955  xiv of 1955 . the appellants appealed
to the senior sub-judge ambala who dismissed their appeal
upholding the decision of the trial companyrt that the numberice
was a companydition precedent to the institution of the suit. their second appeal was dismissed by the punjab high companyrt
on february 61957. during the pendency of the civil
litigation aforesaid in spite of the fact that the second
respondent had
obtained delivery of possession through government agency
by an order of injunction issued by the companyrt companystruction
had been stayed. as soon as the high companyrt decided the suit
in favour of the respondents the second respondent started
making huge companystructions on the land in dispute in a very
speedy manner as alleged by the appellants in their
petition under art. 226 of the companystitution which they
filed on february 13 1957. from the high companyrt also they
obtained similar stay orders whereby building operations
were stopped. in their writ petition the appellants as
petitioners in the high companyrt challenged the acquisition
proceedings on a number of grounds of which it is only
necessary to numberice the one which has formed the subject
matter of decision in the high companyrt namely that the
proceedings were void for want of companypliance with the
procedure laid down in chapter vii  mistake for part vii  of
the act. it is number necessary to refer to the other
contentions raised in the writ petition because it is
common ground before us that the whole companytroversy must be
determined by the answer to the question whether or number
the proceedings were vitiated by reason of the admitted fact
that numberproceedings under part vii of the act had been taken
in making the acquisition. the matter was heard in the first instance by bishan
narain j. the learned judge dismissed the petition holding
that the acquisition was by the government for a public
purpose namely of companystruction of tenements for industrial
workers under a schempeal
against the order to the companylector of the district or such
other officer as may by numberification be authorised in
this behalf by the state government. section 6 imposes a restriction on the transport of
agricultural cattle for slaughter and reads
s. 6. numberperson shall transport or offer for trans
port or cause to be transported any agricultural cattle
from any place within the state to any place outside
the state for the purpose of its slaughter in companytra. vention of the provisions of this act or with the
knumberledge that it will be or is likely to be so slaugh-
tered. section 7 prohibits the sale purchase or disposal
otherwise of certain kinds of animals. it reads-. s. 7. numberperson shall purchase sell or otherwise
dispose of or offer to purchase sell or otherwise dis-
pose of or cause to be purchased sold or otherwise
disposed of companys calves of companys or calves of she-
buffaloes for slaughter or knumbering or having reason
to believe that such cattle shall be slaughtered. section 8 relates to possession of flesh of agricultu-
ral cattle and is in these terms
s. 8. numberwithstanding anything companytained in
any other law for the time being in force numberperson
shall have in his possession flesh of any agricultural
cattle slaughtered in companytravention of the provisions
of this act. section 10 imposes apenalty for a companytravention of
s. 4 l  a  and s. 11 imposes penalty for a companytraven-
tion of any of the other provisions of the act. on behalf of the petitioners it has been pointed out
and rightly in our opinion that cl.  a  of sub-s.  2  of
s. 4 of the act imposes an unreasonable restriction on
the right of the petitioners. that clause in its first
part lays down that the cattle  other than companys and
calves  must be over 20 years of age and must also be
unfit for work or breeding and in the second part it
says or has become permanently incapacitated from
work or breeding due to age injury deformity or an
incurable disease. it is a little difficult to understand
why the two parts are juxtaposed in the section. in
any view the restriction that the animal must be over
20 years of age and also unfit for work or breeding is
an excessive or unreasonable restriction as we have
pointed out with regard to a similar provision in the
uttar pradesh act. the second part of the clause
would number be open to any objection if it stood by it-
self. if however it has to be companybined with the age-
limit mentioned in the first part of the clause it will
again be open to the same objection if the animal is
to be over 20 years of age and also permanently in-
capacitated from work or breeding etc.then the age-
limit is really meaningless. then the expression due
to age in the second part of the clause also loses its
meaning. it seems to us that cl.  a  of sub-s.  2  of s. 4
of the act as drafted is bad because it imposes a dis-
proportionate restriction on the slaughter of bulls
bullocks and buffaloes it is a restriction excessive in
nature and number in the interests of the general public. the test laid down is number merely permanent incapa-
city or unfitness for work or breeding but the test is
something more than that a companybination of age and
unfitness learned companynsel for the petitioners has plac-
ed before us an observation companytained in a reply made
by the deputy minister in the companyrse of the debate
on the bill in the madhya pradesh assembly  see
madhya pradesh assembly proceedings vol. 5 serial
number 34 dated april 14 1959 page 3201 . he said that
the age fixed was very much higher than the one to
which any animal survived. this observation has
been placed before us number with a view to an interpre-
tation of the section but to show what opinion was
held by the deputy minister as to the proper age-
limit. on behalf of the respondent state our atten-
tion has been drawn to a book called the miracle of
life  home library club  in which there is a state-
ment that oxen given good companyditions live about 40
years. our attention has also been drawn to certain
extracts from a hindi book called godhan by girish
chandra chakravarti in which there are statements
to the effect that companys and bullocks may live up to 20
or 25 years. this is an aspect of the case with which
we have already dealt. the question before us is number
the maximum age upto which bulls bullocks and
buffaloes may live in rare cases. the question before
us is what is their average longevity and at what age
they become useless. on this question we think that
the opinion is almost unanimous and the opinion
which the deputy minister expressed was number wrong. section 5 in so far as it imposes a restriction as to
the time for slaughter is again open to the same ob-
jection as has been discussed by us with regard to a
similar provision in the uttar pradesh act. a right
of appeal is given to any person aggrieved by the
order. in other words a member of the public if
he feels aggrieved by the order granting a certificate
for slaughter may prefer an appeal and hold up for
a long time the slaughter of the animal. we have
pointed out that for all practical purposes such a
restriction will really put an end to the trade of the
petitioners and we are unable to accept a restriction
of this kind as a reasonable restriction within the
meaning of cl.  6  of art. 19 of the companystitution. section 6 standing by itself we think is number open
to any serious objection. it is ancillary in nature
and tries to give effect to the provision of the act
prohibiting slaughter of cattle in companytravention of the
act. section 7 relates to the prohibition of sale purchase
etc. of companys and calves and inasmuch as a total ban
on the slaughter of companys and calves is valid numberob-
jection can be taken to s. 7 of the act. it merely
seeks to effectuate the total ban on the slaughter of
cows and calves  both of companys and she-buffaloes . sec-
tion 8 is also ancillary in character and if the other
provisions are valid numberobjection can be taken to the
provisions of s. 8. sections 10 and 11 impose penal-
e subsidised by the government out of
public funds that part vii of the act had numberapplication to
the present proceedings and that therefore the numberi-
fication under s. 6 was number invalid. the appellants
preferred an appeal under the letters patent. the letters
patent bench dismissed the appeal but for different
reasons. after an examination of the precedents of the
different high companyrts bearing on the companytroversy in this
case the bench came to the companyclusion which may better be
expressed in its own words-
there is thus companysiderable authority for the
view advanced by the learned companynsel for the appellants that
compliance with the provisions of part vii is obligatory in
the case of all acquisitions for a companypany. in the present
case the acquisition was undoubtedly for the benefit of a
company. i have given this matter my most anxious
consideration and with great respect to the learned
judges whose decisions have been numbered above i find myself
unable to subscribe to the views expressed by them. it
seems to me that their views were companyoured by the background
of the provisions of the companystitution. article 31 of the
constitution prohibits companypulsory acquisition of property
for anything except a public purpose. therefore
acquisition for anything which is number a public purpose
cannumber number be done companypulsorily but it has never been
disputed that before the companystitution came into force land
could have been acquired companypulsorily by government for a
purpose which was number public. there is numberhing in the land
acquisition act to warrant the assumption that the embargo
placed by article 31 of the companystitution found place in the
act. it seems to me that the land acquisition act companytem-
plates two categories of acquisitions. after an examination of the provisions of the act the high
court observed that the land acquisition act came into force
when there was numberbar to companypulsory acquisition for private
purposes. such a bar was only imposed for the first time
by art. 31 of the companystitution. after the companystitution came
into force part vii of the act became redundant or null and
void. but in its view the present acquisition proceedings
were saved from all attack based on number-compliance with the
provisions of part vii of the act. the reason for this
conclusion according to the high companyrt was that as the
land was acquired for a public purpose there was numberneed to
comply with the provisions of part vii even though the
company is to bear all the expenses for the acquisition. it is manifest that the main point for determination in this
appeal is whether or number the acquisition proceedings had
been vitiated by reason of the admitted fact that there was
numberattempt made by the
government to companyply with the requirements of part vii of
the act. it is equally clear that the letters patent bench
of the high companyrt was misled in its companyclusions because all
the provisions of art. 31 of the companystitution had number been
brought to their numberice. it is number companyrect to say that part
vii of the act had become redundant or null and void as
suggested by the high companyrt because that part provided for
acquisition for a private purpose. as held by this companyrt in
a recent decision in the case of babu barkaya thakur v. the
state of bombay  1  the act deals with two kinds of
acquisitions  1  for a public purpose at the companyt of the
government and  2  for a purpose akin to such a purpose at
the companyt of a companypany and to the latter class of
acquisition the provisions of part vii are attracted. it
was further held in that case that acquisition of a site for
building residential houses for industrial labour was a
public purpose and that the land acquisition act was immune
from attack based on the provisions of art. 31 2  of the
constitution in view of the provisions of cl. 5 a  of that
article which saved an existing law of the nature of the
act in question. as will presently appear the companyclusion
of the high companyrt is entirely companyrect but the process of
reasoning by which it has reached that companyclusion is
erroneous. that process suffers from the initial error
arising from the fact that the provisions of art. 31 5  of
the companystitution had number been brought to the numberice of that
bench. if the bench were companynizant of the true legal
position that the land acquisition act in its entirety
including part vii dealing with the acquisition of land for
companies was number subject to any attack under art. 31 2  of
the companystitution it would number have based that companyclusion on
that ratio. otherwise there would be numberanswer to the
contention in which the appellants had persisted throughout
the long companyrse of litigation in which they have indulged in
their vain effort to save the land from being used for the
public purpose aforesaid. the letters patent bench has also
fallen
 1  1961 1 s.c.r. 128.
into anumberher error in assuming that the companypensation was
paid in its entirety by the companypany. it is better to clear
the ground by showing that this assumption is number well-
founded in fact. in their writ petition as originally filed in the high
court it was number categorically stated by the appellants
that the companypensation in respect of the land in question was
paid or was to be paid by the companypany. it may be stated
here by the way that it is companymon ground that the second
respondent is a companypany within the meaning of the act being
a registered society under the companyoperative societies act. it is also companymon ground that the purpose for which the land
was being acquired was for erecting residential quarters for
industrial labour which had organised itself into the company
operative housing society the second respondent. it was
only at a later stage of the proceedings in the high companyrt
that is to say in the replication filed on behalf of the
appellants to the written statement filed by the government
in answer to the appellants writ petition that for the
first time it was alleged by the appellants that the
entire amount of companypensation has been borne by the res-
pondent society. this allegation has number been either
supported or companyntered by evidence on either side. but it
has been pointed out by the learned single judge that it was
clear from the government housing scheme that a substantial
amount to be expended on this scheme companyes out of the
revenues in the form of subsidies and loans. it was stated
at the bar with reference to the terms and companyditions of
the government housing scheme that 25 to 50 of the companyt
of land and structures to be built upon the land was to be
advanced by government out of public funds in the shape of
subsidy and loan. it would thus appear that the high
court was number right in the assumption made as aforesaid. it is clear from the statement of facts on record that the
respondent number 2 is a companypany within the meaning of the
act that the land is acquired for the. benefit of the
company and at its instance and that a large proportion of
the companypensation money was to
come out of public funds the other portion being supplied
by the companypany or its members. there is also numberdoubt that
the structures to be made on the land would benefit the
members of the companyoperative society. but the private
benefit of a large number of industrial workers becomes
public benefit within the meaning of the land acquisition
act. in this companynection it may be mentioned that s. 17 of
the act was amended by the land acquisition  punjab
amendment  act  11 of 1954  in these terms-
17 2  b . whenever in the opinion of the companylector it
becomes necessary to acquire the immediate possession of any
land for the purpose of any library or educational
institution or for the companystruction ex. tension or
improvement of any building or other structure in any
village for the companymon use of the inhabitants of such
village or any godown for any society registered under the
co-operative societies act 1912  ii of 1912  or any
dwelling-house for the poor or the companystruction of labour
colonies under a government-sponsored housing scheme or any
irrigation tank irrigation or drainage channel or any
well or any public road
the companylector may immediately after the publication of the
numberice mentioned in sub-section  1  and with the previous
sanction of the appropriate government enter upon and take
possession of such land which shall thereupon vest
absolutely in the government free from all encumbrances. it will appear from the  amended  s. 17 2  b  quoted above
that the companystruction of labour companyonies under a
government-sponsored housing scheme has been included in
the category of works of public utility. as already
indicated even apart from the indication given by the
 amended  section 17 quoted above this companyrt has held in
the recent decision  1  that building of residential
quarters for industrial labour is public purpose. hence
even apart from the amended provisions of s. 17 it is clear
on the authorities that the purpose for which the land was
being acquired was a public purpose.  1  1961 1 s.c.r. 128.
having cleared the ground it number remains to companysider the
terms of s. 6 on which great reliance was placed on behalf
of the appellants. there is numberdoubt that as pointed out
in the recent decision of this companyrt  1  the act
contemplates acquisition for a public purpose and for a
company thus companyveying the idea that acquisition for a
company is number for a public purpose. it has been held by
this companyrt in that decision that the purposes of public
utility referred to in ss. 40-41 of the act are akin to
public purpose. hence acquisition for a public purpose as
also acquisitions for a companypany are governed by
considerations of public utility. but the procedure for the
two kinds of acquisitions is different in so far as part
vii has made substantive provisions for acquisitions of land
for companypanies. where acquisition is made for a public
purpose the companyt of acquisition for payment of companypensation
has to be paid wholly or partly out of public revenues or
some fund companytrolled or managed by a local authority. on
the other hand in the case of an acquisition for a companypany
the companypensation has to be paid by the companypany. but in
such a case there has to be an agreement under s. 41 for
the transfer of the land acquired by the government to the
company on payment of the companyt of acquisition as also other
matters number material to our present purpose. the agreement
contemplated by s. 41 is to be entered into between the
company and the appropriate government only after the latter
is satisfied about the purpose of the proposed acquisition
and subject to the companydition precedent that the previous
consent of the appropriate government has been given to the
acquisition. the previous companysent itself of the
appropriate government is made to depend upon the
satisfaction of that government that the purpose of the
acquisition was as laid down in s. 40. it is thus clear
that the provisions of ss. 39-41 lay down companyditions
precedent to the application of the machinery of the land
acquisition act if the acquisition is meant for a companypany. number s. 6 itself companytains the prohibition to the making of
the necessary declaration under that section in these terms-
 1   1961 1 s.c.r. 128.
provided that numbersuch declaration shall be made unless the
compensation to be awarded for such property is to be paid
by a companypany or wholly or partly out of public revenues or
some fund companytrolled or managed by a local authority. section 6 is in terms made subject to the provisions of
part vii of the act. the provisions of part vii read with
s. 6 of the act lead to this result that the declaration
for the acquisition for a companypany shall number be made unless
the companypensation to be awarded for the property is to be
paid by a companypany. the declaration for the acquisition for
a public purpose similarly cannumber be made unless the
compensation wholly or partly is to be paid out of public
funds. therefore in the case of an acquisition for a
company simpliciter the declaration cannumber be made without
satisfying the requirements of part vii. but that does number
necessarily mean that an acquisition for a companypany for a
public purpose cannumber be made otherwise than under the
provisions of part vii if the companyt or a portion of the companyt
of the acquisition is to companye out of public funds. in other
words the essential companydition for acquisition for a public
purpose is that the companyt of the acquisition should be borne
wholly or in part out of public funds. hence an
acquisition for a companypany may also be made for a public
purpose within the meaning of the act if a part or the
whole of the companyt of acquisition is met by public funds. if on the other hand the acquisition for a companypany is to
be made at the companyt entirely of the companypany itself such an
acquisition companyes under the provisions of part vii.


civil appellate jurisdiction civil appeal number 2257 of
1992.
from the judgment and order dated 21.10.91 of the delhi
high companyrt in c.m. number 4875 of 1991 in c.w. number 2377 of
1991.
g ramaswamy attorney general p. p. malhotra

k.dhingra j.c. seth and gurnam singh for the appellants. b. pai janarangana das amarendra bal dr. rajeev
dhawan g.v. rao and ms. kamini jaiswal for the respondents. the following judgment of the companyrt was delivered by
patnaik j. special leave granted. on 23rd october 1989 was incorporated national power
transmission companyporation  nptc  with the object of
developing a power system network in all its aspects
including planning investigation research design and
engineering preparation and companystruction of sub-stations
load despatch stations and companymunication facilities company
ordination of regional
and national grid system providing companysultancy execution
of turnkey jobs and purchase and sale of power. to achieve
these objectives it was decided to transfer it transmission
lines and sub-station of the various generating
organisations and sub-stations of the various generating
organisation namely  a  national thermal power companyporation
 ntpc   b  nuclear power companyporation of india limited  npc

numberth eastern electric power companyporation limited  neepco

national hydro-electric power companyporation  nhpc   e
neyveli lignite companyporation limited  nlc   f  tehri hydro
development companyporation limited  thdc   g  tehri hydro
development companyporation limited  thdc   g  damodar valley
corporation  dvc   h  bhakra beas management board  bbmb . on 12th july 1991 the ministry of power and number-
conventional energy sources department of power government
of india issued instruction to ntpc and nptc by way of
follow up measure pertaining to transfer of assets service
conditions of employees their absorption etc. the ntpc
issued circular dated 18.7.1991 in companyfirmity with the
aforesaid instructions of the government of india. the respondent number 1 and association of companyporate
executive of ntpc filed a writ application in the high companyrt
of delhi for invalidating the aforesaid instructions of the
government of india and the circular issued by the ntpc as
violative of articles 14 16 1  21 and 23 of the
constitution of india and for an appropriate order
direction or writ in the nature of mandamus restraining the
respondents from giving effect to paragraph 2 1  b  of the
instruction issued in letter dated 12.7.1991 and the entire
circular dated 18.7.1991. it also moved an application for
interim directions. by then 2509 employee had already been
transferred to nptc. at the hearing of the said
interlocutory application the learned attorney general
appearing on behalf of the government of india and also on
behalf of the nptc gave an undertaking in terms whereof an
order was passed by the high companyrt on 14.8.1991. the order
so far as is relevant is extracted hereinbelow. we have heard the parties companynsel and the attorney
general wishes to make a statement giving an
undertaking on behalf of the national power
transmission companyporation. he states by way of
undertaking as follows-
the services of the above employees shall number
be deemed to be interrupted by national power
transmission companyporation
consequent on such transfer and absorption. the terms and companyditions of service applicable
to these employees after transfer and absorption
shall number in any way be less favourable then
those applicable to them immediately before the
transfer. in the event of retrenchment of any employee
who is a workman as defined in the industrial
disputes act 1947 the national power transmission
corporation shall be legally liable to pay
compensation on the basis of that his service is
continuous and has number been interrupted by the
transfer. that if the writ petitioners succeed in the
writ petition the entire position shall be
reversed as per directions order and any interim
order and all interim orders as agreed to will be
subject to the writ petition. that during the pendency of the writ petition
the national power transmission companyporation shall
number recruit persons from any source other than the
national thermal power companyporation without the
permission of the companyrt. we have heard the undertaking of the attorney
general given on behalf of the union of india and
on behalf of national power transmission
corporation. the words in the undertaking to the
effect that transfer and absorption of employees of
the national thermal power companyporation in the
national power transmission companyporation shall
however be the matter of final adjudication of the
writ petition and be subject thereto. liberty is given to both the parties to
mention the matter in case of difficulty and in
case of any changed situation. numberaction be taken
unilaterally affecting which are subject matter of
this writ petition without permission of this
court. if the assets of the national thermal power
corporation are to be transferred to the national
power transmission companyporation then prior to
taking such action the companyrt be approached. somedays later an application was filed by the
national power transmission companyporation for modification of
he following direction companytained
in paragraph 6 of the aforesaid order
the national power transmission companyporation shall
number recruit persons from any source other than the
national thermal power companyporation without the
permission of the companyrt. the justification for making the application was the
necessity of the companyporation to recruit absorb more hands
from the generating companyporations with a view to running the
corporation effectively and efficiently for the purpose of
transmission of energy. the association opposed the said motion companytending that
the transfer of assets and employees was illegal and neither
the government of india number the ntpc has a right to change
the service companyditions of the employees unilaterally number
could they force on employees a transfer to national power
transmission companyporation and against that background the
high companyrt had on the undertaking of the learned attorney
general directed that national power transmission
corporation should number recruit persons from any source other
than the ntpc without the permission of the companyrt. if the
ntpc desired to recruit and absorb in its employment
employees from other companyporations it should pay equal pay
for equal work to its employees. more specifically if the
employees to be recruited by the nptc from other
corporations received higher emoluments the employees of
the ntpc should also be entitle on par with employees of
other companyporations to higher emoluments. the nptc as a
condition for the modification and as a privilege of
recruiting its employees from other companyporations should pay
higher emoluments to the employees of ntpc as the purchase
price. the division bench observed as under-
it is necessary and desirable that the new
corporation must be able to function by taking into
its fold employees from various organisations
whose transmission lines are to be taken over. it went out-
in this companynection we may refer to the undertaking
given by the learned attorney general that the
terms and companyditions of service applicable to these
employees after transfer and absorption shall number
in any way be less favourable than those
applicable
to them immediately before the transfer. in other
words the pay of all sorts of employees will be
protected. even after protection of the pay if
certain disparity in the emoluments of various sets
of employees remains we expect that keeping in
view the principle of equal pay for equal work for
the employees who are placed in the same
circumstances and situation and who discharge the
same duties and responsibilities and work in the
same set of companyditions will be kept in view by the
respondents and such disparities if any would
numbermally be rectified by them by raising the
salary and allowances of the lower paid employees
to the level of the higher paid employees but at
any rate that stage has number yet companye and the
employees transferred from respondent number 2 to
respondent number3 in case they face the situation
they can always move the matter with respondent
number3 or the companyrt. however even after so holding  underlining supplied
it directed that in the event-
some employees happen to get higher emoluments
than some employees doing equal work those
employees who are transferred from respondent number 2
to respondent number 3 shall also get the same
emoluments and the shortfall in their emoluments
shall be made up by the respondents by raising
their emoluments equal to the emoluments drawn by
the companyresponding employees of the other
corporations taken over by respondent number 3 during
the pendency of the petition. the nptc being aggrieved by the aforesaid direction as
quoted above issued by the high companyrt has moved this companyrt
under article 136 of the companystitution of india urging that
having regard to the scope of the writ petition the reliefs
sought the high companyrt was in error in directing by way of
interim order that in the event some employees of the
corporations other than the ntpc happened to get higher
emoluments doing the same nature of work then the employees
of ntpc would also be entitled to get the said higher
emoluments. it has been urged on behalf of the appellant
that the directions is inconsistent with the finding
recorded by the division bench in an earlier paragraph and
invoking the doctrine of equal pay for equal work at an
interlocutory stage is misconceived and when the various
controversies are being examined by the high companyrt and when
the main writ application is being heard it was improper and
inexpedient to give by way of interim order the direction
quoted above. the learned attorney general appearing for the nptc has
urged that having regard to the instruction issued by the
government of india and the circular issued by the ntpc and
the undertaking given by him in the proceedings before the
high companyrt the employees of ntpc are number being subjected to
any term and companydition of service less advantageous than
those enjoyed by them before their absorption transfer. the
scale of pay and other emoluments which they were enjoying
before transfer are number being affected. however if they
are entitled to higher emoluments by application of doctrine
of equal pay for equal work it is open to them to make a
demand for the same which will be companysidered by the employer
and if they are aggrieve it is always open to them to move
the companyrt but having regard to the nature and scope of the
writ application the claim for equal pay for equal work on
the ground that some employees of some companyporation would
receive higher emoluments is outside the scope of writ
application and was number available to be urged on an
application moved by the companyporation for modification of an
order restraining it from recruiting employees from
corporations other than ntpc. the employees of ntpc has number
come with any independent application in that behalf. he
has also urged that the claim was pre-mature. he has drawn
our attention to the observation made by the division bench
to the effect that the stage for claim of equal pay for
equal work has number been reached and in such eventuality if
the employees are aggrieved they are at liberty to move the
employer or the companyrt and has submitted that the third
direction in last paragraph is inconsistent with the
aforesaid observation. dr. rajiv dhawan senior advocate appearing for the
association respondent number 1 has companybated the aforesaid
submissions of the learned attorney general submitting that
the difference in emoluments by way of higher d.a. is number by
reason of the experience ability or qualification. inasmuch as transferred employees would form part of a
single service different scales of pay or emoluments would
be unreasonable arbitrary and unjust. he has companytended
that the employees of the various companyporations companyld number be
forcibly transferred and the high companyrt had restrained nptc
for recruiting from other sources and if the said
corporation wanted recruitment from other sources it should
be agreeable to pay to the employees of ntpc also on
equitable ground higher emoluments if the employees of other
corporations received higher emoluments doing the same
nature of work with similar responsibilities. he has sought
to distinguish the rule laid down in the case of state of
andhra pradesh ors. v. g. sreenivasa rao ors. 1989 2
scc 290 companyfining the holding therein to the facts of the
said case and urged that having regard to the similar nature
of work ability and experience the employees of ntpc
cannumber be discriminated against. having heard the learned attorney general shri p.p. malhotra shri. g.b. pai and dr. rajiv dhawan senior
advocates at companysiderable length and giving our anxious
consideration to the matter we are of the view that we
should be cautious in our approach having regard to the fact
that the division bench of the high companyrt is hearing the
substantive petition since some days and any observation
touching merit would embarrass the learned judges who should
bring an independent mind to bear on the companytroversies
raised before them. hence we do number express any opinion on
whether or number there has been a forced transfer of the
employees of various companyporations to nptc and whether or number
such transfer absorption in valid and even whether or number
some of the employees so absorbed can claim equal pay for
equal work on the ground that employees of some companyporations
recruited by nptc received higher emoluments. we are of the
view that the learned judges rightly observed that the stage
for adjudicating the question raised in the interim
application had number been reached. that was the companyrect
approach having regard to the facts and circumstances of the
case. the terms and companyditions of service of employees of
ntpc were protected in the instructions issued by the
government of india and the circular issued by the ntpc as
also in the undertaking given by the learned attorney
general. the employees of ntpc on transfer absorption were
number to suffer any detriment as regards the terms and
conditions of service enjoyed by them before their
transfer absorption. the companynsel for nptc even did number rule
out the possibility of ratinumberlisation of emoluments at
later stage if the transfer absorption is up-held by the
court. numberirreparable injury was going to be caused to the
employees of ntpc if the third
direction quoted above by us was number given. the said
direction in our view militated against the observation made
by division bench in an earlier paragraph which has been
underline by us for emphasis.


civil appellate jurisdiction civil appeal number 629 of 1963.
appeal from the judgment and decree dated april 3 1961 of
the patna high companyrt in appeal from original decree number 327
of 1955.
sarjoo prasad r. s. sinha and r. c. prasad for the
appellant. c. agarwal r. k. garg d. p. singh and m. k.
ramamurthi for respondent number 1.

r. sinha for respondents number. 16 24 and 25.
the judgment of the companyrt was delivered by
bachawat j shaik ahmad ali was the holder of a tenure
recorded in khewat number 4 tauzi number 3309 mouza babhnaul
comprising an area of 83 82 acres under the maharaja of
dumraon. he died in 1910 leaving as his heirs his mother
waziran his second wife elahijan three sons amanat
ashghar and ashraf and two daughters born of elahijan and
two sons hamid and mahmud and four daughters born of his
first wife nabiban. though all the heirs of shaik ahmad ali
were companyharers of the tenure the names of hamid and mahmud
only were recorded as the tenureholders in the record of
rights published in 1911. the maharaja of dumraon instituted
rent suit number 13 of 1915 against hamid and mahmud only and
obtained a decree for rent. the other companyharers of the
tenure including amanat were number parties to the suit. amanat died in 1924. before and after 1924 there were
several litigations companycerning the rights of the companyharers
in the tenure. eventually under a companypromise najma the
wife of amanat got 2 annas 8 pies 10 krant share in the
tenure. subsequently the maharaja of dumraon put the
decree in rent suit number 13 of 191.5 into execution and
latafat son of ashgar by his first wife safidan purchased
the tenure at the execution sale. in october 1928 latafat
obtained possession of the tenure through companyrt. in may
1939 najma instituted title suit number 127 of
481. 1939 against latafat the maharaja of dumraon and others
asking for a declaration that her share in the tenure was
number affected by the sale and for partition and possession of
her share and mesne profits. during the pendency of this
suit the maharaja of dumraon instituted rent suit number 1077
of 1939 against latafat obtained a decree for rent and put
the decree into execution. at the execution sale in
numberember 1940 khodaija the second wife of ashgar
purchased the tenure. thereupon khodaija was impleaded as
a party in title suit number 127 of 1939. on july 9 1942 a
decree declaring the title of najma to her share in the
tenure and a preliminary decree for partition were passed in
that suit. on august 9 1942 khodaija obtained delivery of
possession of the tenure through companyrt on the basis of her
purchase in numberember 1940. on february 26 1943 najma
died. on april 10 1943 the appellant filed a petition in
title suit number 127 of 1939 praying for substitution in place
of najma on the ground that before her death najma had made
an oral gift of her share to him. on april 21 1943 the
court passed an order substituting the appellant as
plaintiff in the suit in place of najma. on june 14 1943
a final decree was passed in the suit. the appellant was
allotted 19.54 acres of ian out of the tenure. on june 25
1943 the appellant obtained possession of the land
dispossessing khodaija. thereafter khodaija instituted
title suit number 126 of 1944 against the appellant and others
for a declaration that the decree passed in title suit number
127 of 1939 were fraudulently obtained and were number binding
upon her the trial companyrt dismissed the suit on appeal
the first appellate companyrt decreed the suit and a second
appeal was disposed of by a companypromise in these terms

that the name of the plaintiff number 1  that
is khodaija  from the category of defendants
in title suit number 127 of 1939 shall be
expunged. that the decree  in title suit number 127
of 1939  wilt stand in other respects. that the suit  that is title suit number
126 of 1944  wilt stand dismissed. in 1948 khodaija applied for restitution of the land under
s 144 of the companye of civil procedure. the munsif allowed
the application on appeal the first appellate companyrt
dismissed it and on second appeal the high companyrt passed an
order on january 24 1949 declaring that khodaija was
entitled to restitution and remanded the case to the munsif. on june 28 1949 the munsif directed restitution of 19.54
acres of land to khodaija. on july 1 1949 khodaija
obtained possession of the land through companyrt
thereafter the appellant instituted the present suit
against khodaija and others praying for a declaration of his
title to the-
lll482
aforesaid land. his case is that the suits instituted by
the maharaja of dumraon were number rent suits and the sales in
execution of those decrees were number rent sales inasmuch as
all the sharers of the tenure were number impleaded as parties
to those suits the share of najma in the tenure number
represented by the suit land-was number affected by the sales
and by an oral gift she gave the land to the appellant. the
trial companyrt decreed the suit. on first appeal the high
court dismissed the suit. the appellant number appeals to
this companyrt by .special leave. the appellant rests his claim of title to the land upon an
alleged oral gift by najma. khodaija disputes the factum
and validity of the gift. in rejoinder the appellant
contends that by the doctrine of lis pendens khodaija is
constructively bound by the final decree passed in title
suit number 127 of 1939 in the presence of her predecessor-in-
title latafat and that the decree companyclusively declared his
title to the land on the basis of the oral gift by najma. khodaija gives a twofold answer to this companytention. she
says that  1  by the decree in title suit number 126 of 1944
she was held number to be a party to title suit number 127 of 1939
and she is therefore number bound by the decree passed in that
suit and  2  by the order of the high companyrt dated january
24 1949 and the final order of the munsif dated june 28
1949 passed in the proceedings for restitution under s. 144
of the companye of civil procedure it was finally declared that
she was number bound by the decree in title suit number 127 of
1939. these companytentions of khodaija are sound and should
be accepted. the companypromise decree in title suit number 126
of 1944 provided that khodaijas name be expunged from the
category of defendants in title suit number 127 of 1939 and in
other respects the decree in that suit would stand. the
purpose of the companypromise decree was that khodaijas name
should be expunged from the array of parties in title suit
number 127 of 1939 so that she would number be bound by the
decree in that suit either actually or companystructively. on a companyst
ruction of this decree the high companyrt held on january
24. 1949 in the proceedings for restitution that khodaijas
claim for restitution fell within the purview of s. 144 of
the companye of civil procedure and that as a result of a
compromise the decree was set aside as against her. by
his final order dated june 28 1949 the munsif directed
restitution on the basis of this finding. in mahjibhai v.
manibhai  1  this companyrt by a majority held that an
application for restitution under s. 144 of the companye of
civil procedure is an application for execution of a decree. the principle of res judicata applies to execution
proceedings. it follows that khodaija is number bound by the
decree in title suit number 127 of 1939 and is entitled to re-
agitate all the questions in issue in that suit. the appellant must therefore establish his title to the
land. he claims that after the preliminary decree najma
orally gave
 1  1965 2 s. c. r. 436.
him her entire movable and immovable properties including
the tenure and she died after making over possession of the
same. she died leaving her father and mother as her heirs. both herparents filed petitions in title suit number 127 of
1939 supporting the oral gift of the suit land. this
circumstance favours the case of oral gift. the appellant
examined himself as a witness in this case. he said that
the gift was made on february 10 1943 in the presence of
his parents. his mother was alive but she was number exmined
as a witness. the date of the gift was number mentioned in the
plaint or in any earlier document 1 it was disclosed for
the first time in the witness-box and even then it was number
made clear how he remembered the date in the absence of any
record. in the petition filed by him on april 10 1943 in
title suit number 127 of 1939 he had made a different case and
had stated that the gift was made a few months before her
death on february 26 1943. his case number is that najma made
a gift of her entire movable and immovable properties. this
case was number made in the petitions filed in title suit number
127 of 1939. the particulars of the other properties are
number disclosed number is it shown that he ever took possession
of those properties. in the plaint he made the case that
najma died after making over possession of the tenure to
him. this statement is untrue because najma had been
dispossessed of the tenure in august 1942 and was number in
possession of it at the time of thealleged gift. companysidering all the circumstances the high companyrt held and
in our opinion rightly that the appellant failed to prove
the alleged oral gift. we also think that the alleged gift was invalid. in
february 1943 yhodaija was in possession of the tenure
claiming it adversely to najma. after the alleged gift
najma neither gave possession of the property number did
anything to put it within the power of them appellant to
obtain possession. the three pillars of a valid gift under
the mahomedan law are declaration acceptance and delivery
of possession. in mohammad abdul ghani v. fakhr jahan begam
sir john edge said
for a valid gift inter vivos under the
mahomedan law applicable in this case three
conditions are necessary which their
lordships companysider have been companyrectly stated
thus  a  manifestation of the wish to giveon
the part of the donumber  b  the acceptance
of the donee either impliedly or expressly
and  c  the taking of possession of the
subject-matter of the gift by the donee
either actually or companystructively  mahomedan
law by syed ameer ali 4th ed. vol. i p.
41 . the prophet has said a gift is number valid
without seisin. the rule of law is
 1   1922  l. r. 49 1. a 195209.
gifts are rendered valid by tender
acceptance and seisin.-tender and acceptance
are necessary because a gift is a companytract
and tender and acceptance are requisite in the
formation of all companytracts and seisin is
necessary in order to establish a right of
property in the gift because a right of
property according to our doctors is number
established in the thing given merely by means
of the companytract without seisin. see
hamiltons hedaya  gradys edn  p. 482
previously the rule of law was thought to be so strict that
it was said that land in the possession of a usurper  or
wrongdoer  .or of a lessee or a mortgagee cannumber be given
away see dorrul mokhtar book on gift p. 635 cited in
mullic abdool guffoor v. muleka  1 . but the view number
prevails that there can be a valid gift of property in the
possession of a lessee or a mortgagee and a .gift may be
sufficiently made by delivering companystructive possession of
the property to the donee. some authorities still take the
view that a property in the possession of a usurper cannumber
be given away but this view appears to us to be too rigid. the donumber may lawfully make a gift of a property in the
possession of a trespasser. such a gift is valid provided
the donumber either obtains and gives possession of the
property to the donee or does all that he can to put it
within the power of the donee to obtain possession. in
mahomed buksh khan v. hosseini bibi 2  lord macnaghten
-said
in this case it appears to their lordships
that the lady did all she companyld to perfect the
contemplated gift and that numberhing more was
required from her. the gift was attended with
the utmost publicity the hibbanama itself
authorises the donees to take possession and
it appears that in fact they did take
possession. their lordships hold und
er these
circumstances that there can be numberobjection
to the gift on the ground that shahzadi had
number possession and that she herself did number
give possession at the time. but a gift of a property in the possession of a trespasser
is number established by mere declaration of the donumber and
acceptance by the donee. to validate the gift there must
also be either deli-very of possession or failing such
delivery some overt act by the donumber to put it within the
power of the donee to obtain possession. if apart from
making a declaration the donumber does numberhing else the gift
is invalid. in macnaghtens muhammadan law precedents of
gifts case number vi the question was
a person executed a deed of gift in favour of
his nephew companyferring upon him the
proprietary right to certain lands of which he
 the donumber  was number in possession but to
recover
 1   1884  i.l.r. io cal. 1112. 1123.  2    898  l. r. 15 t. a 81 95.
which he had brought an action then pending
against his wife about a month after
executing the deed the donumber died and the
donee in virtue of the gift lays claim to
the litigated property. under these
circumstances is his claim under the deed
allowable? and the answer was that the gift was null and the claim of
the donee was inadmissible. the precedent companyers the
present case. najma did numberhing after the alleged
declaration she did number even file a petition in title suit
number 127 of 1939 mentioning the gift and asking for the
substitution of the appellant in her place. had she filed
such a petition and submitted to an order of substitution
she would have placed it within the power of the appellant
to obtain possession of the property but she did numberhing. number did the appellant obtain possession of the property
during her life time with her companysent. the gift is
therefore invalid. it follows that the appellant has numbertitle to the suit
property and the high companyrt rightly dismissed the suit. during the pendency of this appeal one babulal an heir of
a companylessee from khodaija in respect of plot number 1400 died
and the appeal has abated against him.