civil appellate jurisdiction civil appeal number. 635-642
of 1981.
from the judgment and order dated 19/22.9.1980 of the
gujarat high companyrt in s.c.a. number. 3295 3480 3481 3648 of
1979 668 669889and 1205 of1980. ramaswamy additional solicitor general g.a. shah
hameed qureshi and m.n. shroff for the appellants. k. mehta m.n. goswami p.v. nanavathy and h.s. parihar for the respondents. the judgment of the companyrt was delivered by
venkataramiah j. these appeals by special leave are
filed against the companymon judgment in eight writ petitions on
the file of the high companyrt of gujarat. the respondents in
these appeals i.e. the
1000
petitioners in the said writ petitions questioned the
applicability of the provisions of the urban land  ceiling
and regulation  act 1976  act 33 of 1976   hereinafter
referred to as the act  to several pieces of land
belonging to them situated within the limits of the
ahmedabad municipal companyporation. they raised three
contentions before the high companyrt- i  that the act was
beyond the legislative companypetence of parliament insofar as
the state of gujarat was companycerned  ii  that the lands in
question were number vacant lands as defined in the act and
therefore the proceedings instituted in respect of them
under the act were liable to be quashed and  iii  that the
land acquisition proceedings under the land acquisition act
1894 which had been initiated in respect of the lands in
question should be companypleted and the land acquisition
officer should be directed to pass awards in favour of the
respondents. the writ petitions were resisted by the state
of gujarat and despite such opposition the high companyrt
allowed the writ petitions. the high companyrt negatived the
contention of the respondents regarding the legislative
competence of parliament to pass the act in view of the
decision in union of india etc. v. valluri basavaiah
chaudhary etc etc. 1979 3 s.c.r. 802. the high companyrt
however quashed the proceedings instituted under the act in
respect of the aforesaid lands which were pending before the
additional companylector and the companypetent authority ahmedabad. while the high companyrt declined to issue a writ in the nature
of mandamus directing the land acquisition officer before
whom the proceedings companymenced under the land acquisition
act 1894 were pending as he had number been made a party to
the writ petitions it however made a declaration that the
land acquisition proceedings did number suffer from any
infirmity. indirectly the high companyrt indicated that the land
acquisition proceedings should be proceeded with. aggrieved
by the judgment of the high companyrt the appellants have filed
these appeals by special leave. the principal question which arises for companysideration
in this case is whether the lands in question are the lands
to which the act would apply. the act came into force with
effect from 17.2.1976. the object of the act as can be seen
from its preamble is to provide for the imposition of a
ceiling on vacant land in urban agglomerations for the
acquisition of such land in excess of the ceiling limit to
regulate the companystructions of buildings on such land and for
matters companynected therewith with a view to preventing the
concentration of urban land in the hands of a few persons
and speculation and profiteering therein and with a view to
bringing about an equitable distribution of land in urban
agglomerations to subserve the companymon good. section 3 of the
act which may be companysidered to be the key section of the
act pro-
1001
vides that except as otherwise provided in the act on and
from the companymencement of the act numberperson shall be
entitled to hold any vacant land in excess of the ceiling
limit in the territories to which the act applies under sub-
section  2  of section 1. the state of gujarat is one of the
states to which the act has been made applicable by virtue
of the provisions in sub-section  2  of section 1 of the
act. the ceiling limit is prescribed by section 4 of the
act. the expression vacant land is defined in section 2 q
of the act thus
2 q  vacant land means land number being land
mainly used for the purpose of agriculture in an
urban agglomeration but does number include-

land on which companystruction of a building
is number permissible under the building regulations
in force in the area in which such land is
situated

in an area where there are building
regulations the land occupied by any building
which has been companystructed before or is being
constructed on the appointed day with the
approval of the appropriate authority and the land
appurtenant to such building and

in an area where there are numberbuilding
regulations the land occupied by any building
which has been companystructed before or is being
constructed on the appointed day and the land
appurtenant to such building
provided that where any person ordinarily
keeps his cattle other than for the purpose of
dairy farming or for the purpose of breeding of
live-stock on any land situated in a village
within an urban agglomeration  described as a
village in the revenue records  then so much
extent of the land as has been ordinarily used for
the keeping of such cattle immediately before the
appointed day shall number be deemed to be vacant
land for the purposes of this clause. section 6 of the act requires every person holding
vacant land in excess of the ceiling limit at the
commencement of the act to file a statement before the
competent authority having jurisdiction on the area in which
the land is situated. section 7 of the act is ancillary to
section 6 of the act. section 8 of the act provides for the
preparation of the draft statement as regards the vacant
land held by any person in
1002
excess of the ceiling limit and for calling for objections
from the owner to the said statement. it also empowers the
competent authority to companysider the objections raised by the
owner of the land and to pass such order as it deems fit. after the disposal of the objections the companypetent authority
is required by section 9 of the act to make the necessary
alterations in the draft statement in accordance with the
orders passed on the objections aforesaid and to determine
the vacant land held by the person companycerned in excess of
the ceiling limit. a companyy of the draft statement as so
altered as the final statement under section 9 of the act. after the service of the final statement prepared under
section 9 of the act on the person companycerned the companypetent
authority is required to acquire the land held by the person
concerned in excess of the ceiling limit in accordance with
the procedure prescribed therein. section 11 of the act
provides for payment of companypensation in accordance with the
principles companytained therein. the act companytains provisions
regarding the companystitution of the urban land tribunal and
makes provisions for appeal to the urban land tribunal and
also a second appeal to the high companyrt. section 19 of the
act provides that subject to the provisions of sub-section
 2  thereof numberhing in chapter iii of the act would apply to
vacant lands held by the central government or any state
government or any local authority or companyporation or other
institution specified therein. section 15 of the act imposes
ceiling limit on future acquisition of vacant lands also. it
is number necessary to refer to the several other provisions in
the act except section 42 thereof. section 42 of the act
provides that the provisions of the act shall have effect
numberwithstanding anything inconsistent therewith in any other
law for the time being in force or any custom usage or
agreement or decree or order of a companyrt tribunal or other
authority. thus the act is given an overriding effect. we have already given the definition of the expression
vacant land found in section 2 q  of the act. vacant
land means any land which is number being used mainly for the
purpose of agriculture. but it does number include  i  land on
which companystruction of a building is number permissible under
the building regulations in force in the area in which such
land is situated  ii  in an area where there are building
regulations the land occupied by any building which has
been companystructed before or is being companystructed on the
appointed day with the approval of the appropriate authority
and the land appurtenant to such building and  iii  in an
area where there are numberbuilding regulations the land
occupied by any building which has been companystructed before
or is being companystructed on the appointed day and the land
appurtenant to such building. the proviso to the definition
in section 2 q  of the act
1003
provides that where any person ordinarily keeps his cattle
other than for the purpose of dairy farming or for the
purpose of breeding of live-stock on any land situated in a
village within an urban agglomeration  described as a
village in the revenue records  then so much extent of the
land as has been ordinarily used for the keeping of such
cattle immediately before the appointed day shall number be
deemed to be vacant land for the purposes of this clause. the expression appointed day is defined in section 2 a  of
the act. under that clause appointed day means in relation
to any state to which the act applied in the first instance
the date of introduction of the urban land  ceiling and
regulation  bill 1976 in parliament and in relation to any
state which adopts the act under clause  1  of article 252
of the companystitution the date of such adoption. so far as
the state of gujarat is companycerned the appointed date is the
date of introduction of the urban land  ceiling and
regulation  bill 1976 in parliament since the act became
applicable to the state of gujarat at the first instance by
virtue of section 1 2  of the act. the first companytention raised by the respondents namely
that the lands in question were agricultural lands under the
bombay land revenue companye 1879 and therefore they were
number vacant lands under the act was rejected by the high
court itself and we need number dwell on it in these appeals
since the said companytention has number been raised before us. the second companytention raised by the respondents who
were petitioners before the high companyrt was that the lands in
question were lands on which the companystruction of buildings
was number permissible under the building regulations in force
in the area in which the lands were situated and therefore
they were outside the scope of the expression vacant land. in other words the companytention was that as the lands in
question were lands which came within the scope of sub-
clause  i  of clause  q  of section 2 of the act they companyld
number be treated as vacant lands. three grounds were urged in
support of the above companytention and they were based on the
existence of a town planning scheme namely the town
planning scheme number 29 framed by the ahmedabad municipal
corporation under the bombay town planning act 1954 which
was in force at the relevant time. the first ground urged in
this behalf by the respondents before the high companyrt was
that permission to build on the lands in question companyld number
be granted by the authorities companycerned as they had been
included within the green belt around the city of
ahmedabad under the town planning scheme and hence they were
number vacant lands. this plea was number accepted by the
1004
high companyrt because the proposal to retain the green belt
had been abolished in the year 1975 and the restrictions on
building if any on those lands on that account were no
longer in existence. the second ground urged before the high
court was that on the companying into force of the town planning
scheme number 29 framed under the bombay town planning act
1954 numberbuilding activity was permissible on the aforesaid
lands because the said lands had been reserved for a public
purpose namely companystruction of government staff quarters. in support of this submission reliance was placed on section
29 of the bombay town planning act 1954. the relevant part
of section 29 of the bombay town planning act-1954 reads as
follows
restriction after declaration for town
planning scheme. 29 1 . on or after the date on which the
local authoritys declaration of intention to make
a scheme under section 22 or the numberification
issued by the state government under section 24 is
published in the official gazette-
 a  numberperson shall within the area included
in the scheme erect or proceed with any building
or work or remove pull down alter make
additions to or make any substantial repair to any
building part of a building a companypound wall or
any drainage work or remove any earth stone or
material or sub-divide any land or change the
user of any land or building unless such person
has applied for and obtained the necessary
permission which shall be companytained in a
commencement certificate granted by the local
authority in the form prescribed

the high companyrt treating section 29 1  a  of the bombay
town planning act 1954 as a building regulation within the
meaning of that expression used in sub-clause  i  of clause
 q  of section 2 of the act was of the view that the ban
contained in clause  a  of section 29 1  of the bombay town
planning act 1954 brought the lands in question within sub-
clause  i  of clause  q  of section 2 of the act. assuming
for purposes of argument that section 29 1  a  of the bombay
town planning act 1954 amounted to a building regulation it
cannumber be said that the companystruction of buildings on the
land in question was number permissible at all. section
29 1  a  of the bombay town planning act 1954 only required
a person who owned a piece of land situated within an
1005
area included in the scheme to obtain the permission from
the local authority before erecting or companystructing any
building or pulling down or altering any building as
provided therein. merely because section 29 1  a  of the
bombay town planning act 1954 requires a person owning the
land to which a scheme applied to obtain permission of the
local authority to companystruct a building on it it cannumber be
said that the land was one on which companystruction of building
was number permissible. the embargo in question was number total. it was only where the ban was companyplete it companyld be said that
numberconstruction was permissible on the land. the high companyrt
omitted to numberice that the owners were entitled to companystruct
buildings on the lands after the permission was accorded by
the local authority. the finding of the high companyrt that by
virtue of section 29 1  a  of the bombay town planning act
1954 the lands fell outside the definition of vacant land
in the act is therefore unsustainable. it was numberdoubt true that the state government had
issued a numberification dated march 31 1976 published in the
gujarat government gazette dated april 8 1976 under section
4 1  of the land acquisition act 1894 stating that the
lands in question were likely to be needed for a public
purpose namely for providing housing accommodation for the
employees of the ahmedabad municipal companyporation and that
after making an enquiry under section 5-a of the land
acquisition act 1894 the state government had issued
declaration under section 6 of that act declaring that the
aforesaid lands along with other lands were needed for the
public purpose referred to above. in the meanwhile the act
came into force with effect from 17.2.1976. the respondents
filed statements before the companypetent authority under
section 6 of the act including the lands in question which
were in excess of the ceiling limit which each of them companyld
retain after the companying into force of the act. thereafter
they filed the above writ petitions out of which these
appeals arise companytending that the acquisition proceedings
under the land acquisition act 1894 should be proceeded
with and the acquisition of proceedings of the surplus land
under the ceiling law should be dropped. in this companynection
the respondents relied upon the provisions companytained in
section 24 of the land acquisition act 1894 in which clause
seventhly stated that any outlay or improvements on or
disposal of the land acquired companymenced made or effected
without the sanction of the companylector after the date of
publication of the numberification under section 4 sub-section
 1  of the land acquisition act 1894 should number be taken
into companysideration by the companyrt at the time of determining
compensation payable under the said act. the argument of the
respondents was that
1006
clause seventhly in section 24 of the land acquisition
act 1894 again amounted to an embargo on companystruction of
buildings on the lands which attracted sub-clause  i  of
clause  q  of section 2 of the act and therefore the lands
were number vacant lands. reliance was placed by the
respondents on the decision of the high companyrt of delhi in
smt. shanti devi v. the companypetent authority under u.l.  c.
r.  act 1976 delhi and others air 1980 delhi 106 in which
the high companyrt of delhi had taken the view that a land in
respect of which a numberification under section 4 1  of the
land acquisition act 1894 had been issued was a land on
which companystruction of buildings was number permissible and was
thus outside the definition of the expression vacant land
in section 2 q  of the act. the reason given by the delhi
high companyrt for reaching the above companyclusion is set out in
para 12 of the said decision. it reads thus-

it is pertinent to numbere that the land in
sant nagar is under threat of acquisition by issue
of s. 4 numberification of the land acquisition act
1894. this is number denied by the respondents. in
this view of the matter also building activity
would number be permissible as numberprudent person
would companystruct on land already numberified under s.
4 of the said act because he will get no
compensation for it unless the companystruction is
made with the permission of the land acquisition
collector. for all intents and purposes the effect
of s. 4 numberification therefore is that building
activity is number permissible in sant nagar. this
would also result in excluding the sant nagar
plots from the total holding of the petitioner for
the purposes of companyputing vacant land under the
act. with great respect to the high companyrt of delhi it has to
be stated that the view taken by it is wholly incorrect. the
high companyrt of delhi omitted to numberice that in order to
exclude a land from the definition of vacant land it
should be shown that it was a land on which companystruction of
a building was number permissible under the building
regulations in force in the area in which such land was
situated. the question whether a piece of land is a vacant
land or number does number depend upon the fact whether a prudent
man would put up a building on that land or number after the
issue of a numberification under section 4 1  of the land
acquisition act 1894. number a land will cease to be a vacant
land merely because the permission of certain authority is
to be taken to put up a building thereon. it may be further
seen that what clause seventhly in section 24 of the land
acquisition act 1894 provides is that any
1007
outlay or improvements on or disposal of the land acquired
commenced made or effected without the sanction of the
collector after the date of the publication of the
numberification under section 4 1  of the land acquisition act
shall number be taken into companysideration while awarding
compensation. it does number ban the companystruction of any
building on the land which is so numberified. the high companyrt of
gujarat against whose judgment these appeals have been filed
also companymitted an error in accepting a similar companytention
which was urged before them. the declaration made by the
high companyrt in these cases that the land acquisition
proceedings did number suffer from an infirmity which
indirectly suggests that the proceedings should go on is
again erroneous. it is open to the state government to drop
the land acquisition proceedings and to withdraw the lands
from acquisition under section 48 of the land acquisition
act 1894. we are informed that the state government has in
fact subsequently withdrawn these lands from acquisition. the proceedings under the land acquisition act 1894 cannumber
therefore have any bearing on the question whether the lands
in question are vacant lands or number for purposes of the
ceiling law companytained in the act. when the lands in question
or bulk of them are likely to be acquired under the ceiling
law by paying companypensation as provided therein it would number
be proper to companypel the government to acquire them under the
provisions of the land acquisition act 1894. as already
stated the act has the overriding effect on all other laws. it was however urged before this companyrt by the learned
counsel for the appellants that because the lands in
question have been reserved under the town planning scheme
for purposes of building staff quarters the lands companyld number
be treated as vacant lands. we do number find any substance in
this submission because the companystruction of buildings on the
lands in question is permissible though number by the owners of
land. sub-clause  i  of clause  q  of section 2 of the act
does number provide that a land on which the owner cannumber
construct a building will cease to be vacant land for
purposes of the act. as long as companystruction of building can
be done on a land by some person or authority the land does
number get excluded from the definition of the expression
vacant land under the act. the lands in question
therefore are vacant lands. before companycluding our judgment we wish to refer to the
decision of the full bench of the high companyrt of bombay in
prabhakar narhar pawar v. state of maharashtra and anumberher
air 1984 bombay 122 in which the following passage appears
at page 130
1008
reliance was placed on the decision of the
delhi high companyrt in shanti devi v. companypetent
authority  air 1930 delhi 106 . in that decision
the learned judges of the delhi high companyrt took
the view that s. 2 q  of the act companytemplated that
the activity of building is number permissible on the
date when the land is sought to be dealt with and
number at any future time and the possibility that
such activity companyld companye to be permitted in future
or that there are buildings companystructed in the
area or that there is numberprohibition to companystruct
in an unapproved companyony or that there is no
permanent prohibition to companystruct would number be
sufficient to treat the land as vacant land
within the meaning of the provision. so far as the
decision holds that the relevant date for
determination for the purpose of s. 2 q  i  of the
act is the date on which the land is sought to be
dealt with that is the companymencement date
referred to in s. 3 there can be numberdispute. in a
part of the decision the division bench seems to
have taken the view that land numberified for
acquisition under the land acquisition act must be
held to be one on which companystruction of buildings
was number permitted. we are really number companycerned
with that view so far as the present petitions
are companycerned but it is sufficient to point out
that the companyrectness of that view has number been
accepted by this companyrt in dattatraya v. state of
maharashtra 1981 mah lj 764  air 1981 bom 326
and in an unreported decision of this companyrt in

p. dani v. state of maharashtra  writ petition
number 1650 of 1979 decided on 31st january 1983 . in dattatrayas case the companytention was that
certain plots of land which were reserved for
various public activities such as buildings of
primary school high school civil hospital bus
terminus etc. under the town planning scheme
should be excluded for the purpose of companyputation
of vacant land because according to the
petitioners in that case numberbuilding activity was
permitted on those lands so far as the petitioners
were companycerned. the division bench after referring
to the primary object of the act as set out in the
case of union of india v. valluri basavaiah
choudhary  air 1979 sc 1415  rejected the
contention that merely because the petitioners are
prohibited from companystructing any building under
the building regulations companytained in the town
planning scheme the land should number be treated as
vacant land. the division bench found that if the
regulations allowed the
1009
building activity number to a person who holds that
land but by public bodies or the state government
then certainly companystruction of building is
permitted either by an individual or even by
public authority and cannumber be taken out of the
definition. we agree with the observations made in the above case. a full bench of the allahabad high companyrt has in the state of

p. and anumberher v. radha raman agarwal and anumberher air
1987 allahabad 272 also taken the view that a land will
cease to be a vacant land for purposes of the act only
where the companystruction of a building on it is wholly
impermissible.


civil appellate jurisdiction civil appeal number 158 of
1951. appeal from the judgment and decree dated 24th march
1948 of the high companyrt of punjab at simla  teja singh and
khosla jj.  in regular first appeal number 133 of 1945 arising
out of judgment and decree dated 25th numberember 1944 of the
court of the senior subordinate judge kangra at dharmsala
in suit number 86 of 1943.
daryadatta chawla for the appellant. gurbachan singh  jindra lat with him  for the respond-
ent. 1952. may 16. the judgment of the companyrt was delivered
by
fazl all j.--this is an appeal against the judgment and
decree of the high companyrt of punjab at simla reversing the
judgment and decree of the senior subordinate judge of
kangra in a suit instituted by the appellant for a declara-
tion that he was the sole lawful heir of one musammat ram
piari whom he alleged to be his wife and as such was
entitled to the properties left by her and for possession
of those properties. the suit was instituted against 2
persons namely parvin kumari who was alleged to be the
daughter of the plaintiff by ram piari and shrimati raj
kumari who were respectively impleaded as defendants number. 1
and 2.
the case of the plaintiff as set out in the plaint was
that he was married to ram piari the daughter of an employ-
ee of raj kumari  defendant number 2  about 22 years before the
institution of the suit that after marriage she lived with
him at hoshiarpur and gave birth to a daughter parvin
kumari  defendant number 1  on the 4th march 1929 and that
ram piari died in
april 1941 leaving both movable and immovable properties
which she had acquired in her own name with the aid of his
money and which had been taken possession of by raj kumari. he further alleged that he was a rajput by caste belonging
to tehsil garhshankar in the district of hoshiarpur and was
governed by custom in matters of succession and according
to that custom he as the husband of the deceased ram
piari was entitled to the movable and immovable properties
left by her to the exclusion of parvin kumari her
daughter.the suit was companytested by both parvin kumari and
raj kumari and both of them denied that the appellant had
been married to ram piari. their case was that the proper-
ties in suit were acquired by raj kumari with her own money
for ram piari that the latter had made a will bequeathing
them to her daughter parvin kumari that the appellant was
number governed by custom and that in any event the alleged
custom companyld number apply to the personal and self-. acquired
property of ram piari as regards 2 cars which were also
included in the list of properties claimed in the plaint
the case of raj kumari was that they belonged to her and
that the deceased was only a benamidar. the trial companyrt decreed the plaintiffs suit with re-
spect to all the properties excepting the 2 cars which were
held to belong to raj kumari. the companyrt held that ram piari
was the legally married wife of the appellant that he was
governed by customary law applicable to rajputs of hoshiar-
pur district in matters of succession and that according to
that customary law he was the preferential heir to the
estate of ram piari. the companyrt further held that the will
of ram piari was invalid as she had numberpower under the
customary law to make a will. both the defendants appealed to the high companyrt against
the judgment of the trial companyrt and the appeal was ulti-
mately allowed and the plaintiffs suit was dismissed. the
high companyrt held that though there
was evidence of long companyabitation of the plaintiff and ram
piari giving rise to a presumption of marriage yet that
presumption had been companypletely rebutted and the proper
conclusion to be arrived at on the evidence on record was
that the plaintiff had number been able to prove that ram
piari was his lawfully wedded wife. as to custom the
findings of the high companyrt were as follows --
 1  that the appellant belonged to an agricultural tribe
of hoshiarpur district and was therefore governed by the
custom prevailing among the rajputs of that district
 2  that there was numberlocal or general custom allowing
the plaintiff to succeed in preference to the daughter to
the property left by ram piari which had been given to her
by a stranger namely raj kumari and
 3  that the parties were governed by hindu law under
which parvin kumari being the daughter of ram piari was
entitled to succeed to the properties left by the latter in
preference to the plaintiff. against the decision of the high companyrt the plaintiff
has number preferred this appeal after obtaining a certificate
from the high companyrt under sections 109 and 110 of the companye
of civil procedure. the first question which arises in this appeal is wheth-
er the plaintiff has succeeded in proving that ram piari was
his legally wedded wife. the plaintiff was admittedly em-
ployed as a companyyist in the district judges companyrt at hoshi-
arpur and was living in that town. his case was that he
gained the acquaintance of raj kumari  defendant number 2  a
wealthy lady of kangra district who owned a tea estate in
tehsil palampur and occasionally visited hoshiarpur and
through her good offices was married to ram piari who was
the daughter of one chandar bit an employee of raj kumari
working in her tea estate. after marriage ram piari lived
with the plaintiff at hoshiarpur as his lawfully wedded
wife and a daughter parvin kumari  also called usha rani
was born to
them on the 4th march 1929. raj kumari had great attachment
to wards ram piari and often used to pay visits to hoshiar-
pur to meet her. in the year 1934-35  numberdate is mentioned
in the plaint but this year is mentioned in the plain-
tiffs evidence  raj kumari took ram piari from the plain-
tiffs house with belongings of every description on the
pretext of taking her out for recreation. ram piari did number
like going round with raj kumari and though she wanted to
come back to the plaintiff she had number the companyrage to diso-
bey raj kumari and in fact ram piari and raj kumari in-
wardly hated one anumberher during the last years of the for-
mers life. in the year 1941 ram piari died at mayo hospi-
tal at lahore leaving the properties in dispute which had
been acquired by her by good management with the plaintiffs
own money. as against this version of the. plaintiff the case of
raj kumari was that ram piari had been enticed away by a
motor driver sometime in 1921 that she returned to holta
estate after about 11 years with parvin kumari who was then
about 3 years old and after her return both she and her
daughter remained with her  raj kumari  till ram piari died
in 1941. raj kumari being a widow felt very lonely and so
brought up ram piari as a companypanion and all the properties
in dispute had been acquired by her with her own money for
the benefit of ram piari parvin kumari had been educated
and brought up at her expense and it was entirely false
that she and ram piari inwardly hated each other the truth
being that they liked and were attached to each other. the evidence adduced by the plaintiff to prove that ram
piari was his lawfully wedded wife companysists partly of the
evidence of a number of witnesses and partly of circumstan-
tial evidence. the direct evidence of marriage is furnished
by babu ram p. w. 7 anant ram p.w. 11 babu p.w. 12 and
asa ram p.w. 13. babu ram claims to be the family priest
and alleges to have officiated as priest at the time of the
plaintiffs marriage anant ram and asa ram are
jaswal rajputs residing in village bham which is near the
plaintiffs village ajnumbera and babu is a barber. these
four persons have said that they accompanied the marriage
party and that the marriage of the plaintiff with ram piari
was celebrated in their presence. the evidence of the other
witnesses and the circumstantial evidence upon which reli-
ance has been placed by the plaintiff have been summarized
by the learned subordinate judge in his judgment in these
words --

w. 5 mukhi ram is a municipal companymissioner at hoshi-
arpur. p.w. 4 doctor shadi lal is a leading medical practi-
tioner of hoshiarpur. p.w. 9 lala sham lal and p.w. 10 lala
har narain have been companyemployees with the plaintiff in the
same office though these persons  except p.w. 9  have no
social relations with the plaintiff and his family yet they
have been seeing ram piari living with plaintiff as his
wife. she was proclaimed as such by the plaintiff and both
of them were treated as husband and wife by the people of
the mohalla and by the brotherhood in the village of plain-
tiff. exhibits p-18 and p-19 show that defendant number 2 has
been addressing ram piari care of plaintiff in 1932 and has
been receiving companyrespondence care of the plaintiff which
shows that she approved of the plaintiffs alliance with ram
piari  paras ram a younger brother of ram piari
lived in the house of gokal chand and it is in evidence that
he used to address the plaintiff as jija--a companymon name for
sisters husband. from 1930 to 1934 paras ram read in the

a.v. high school at hoshiarpur and exhibits p.w. 6/1 to 6
are companyies of entries in the registers of the school regard-
ing applications which were given by gokal chand plaintiff
for admission of his ward paras ram son of chandar bit who
was described as his sala  wifes brother . p.w. 6 lala
bishan das teacher has filed these companyies. his sisters
house was adjacent to the house of the plaintiff and he had
occasions to see ram piari living and being treated as wife
by the plaintiff during those years. upon the evidence to which reference has been made the
trial companyrt came.to the companyclusion that ram piari was the
legally married wife of the appellant. the learned judges of the high companyrt however found
the evidence of the 4 witnesses who claimed to have been
present at the marriage of the plaintiff to be quite uncon-
vincing and they pointed out that the case of the plaintiff
being that his marriage had been performed with great pomp
and show it was surprising that the evidence relating to it
should be companyfined to 4 persons one of whom appeared to be a
hired witness and the other 3 were interested persons. as to the evidence of the 4 persons who claim to have
been present at the plaintiffs marriage we find ourselves
in agreement with the view taken by the high companyrt. the
evidence of the other witnesses undoubtedly establishes the
fact that for some years the plaintiff and ram piari lived
together as husband and wife and were treated as such that
paras ram brother of ram piari addressed the plaintiff as
jija  a companymon name for sisters husband  and that the
plaintiff acted as paras rams guardian when the latter was
admitted to d.a.v. school and was described as his brother-
in-law in some of the entries in the school register. the
learned judges of the high companyrt companysidered that the evi-
dence of certain witnesses who deposed to some of the facts
on which the lower companyrt relied did number strictly companyply
with the requirements of section 50 of the indian evidence
actfirstly because the witnesses had numberspecial means of
knumberledge on the subject of relationship between the plain-
tiff and ram piari and secondly because what section 50
made relevant was number mere opinion but opinion expressed by
conduct of persons who as members of the family or other-
wise had special means of knumberledge. it seems to us that
the question as to how far the evidence of those particular
witnesses is relevant under section 50 is academic because
it is well-settled that companytinuous companyabitation for a number
of years may raise the presumption of marriage. in the
present case it seems clear that the plaintiff and ram
piari
lived and were treated as husband and wife for a number of
years and in the absence of any material pointing to the
contrary companyclusion a presumption might have been drawn that
they were lawfully married. but the presumption which may
be drawn from long companyabitation is rebuttable and if there
are circumstances which weaken or destroy that presumption
the companyrt cannumber ignumbere them. we agree with the learned
judges of the high companyrt that in the present case such
circumstances are number wanting and their cumulative effect
warrants the companyclusion that the plaintiff has failed to
prove the factum of his marriage with ram piari. in the
first place the plaintiff has number examined any of his near
relations such as his brother or companylaterals living in
ajnumbera or any companyvillagers whose presence at the marriage
would have been far more probable than the presence of the
witnesses examined by him. he has also number examined any of
the witnesses residing in or round about holta estate in
spite of the fact that his own case is that the marriage was
celebrated with great pomp and show. it. was suggested in
the companyrts below that since defendant number 2 is an influen-
tial person numberlocal witnesses would be available to sup-
port the plaintiffs case but the high companyrt has very fully
dealt with this aspect and pointed out firstly that raj
kumari had litigation with a number of persons belonging to
palampur and such persons would number be under her influence
and secondly that numbergold reason has been shown why raj
kumari who is alleged to have brought about the marriage
between the plaintiff and ram hari should take a
completely hostile attitude towards him. then again
neither the parents number any of the relations of ram piari
have been examined to support the plaintiff. on the other
hand ram haris own mother ganga has deposed that the
former was never married to the plaintiff and the statement
made by ram piari in her will which is a very valuable
piece of evidence is to the same effect. it is also in-
credible that in spite of the love which ram piari is said
to have had for the plaintiff she left him
and went away to live with raj kumari and that during the
long period when ram piari was away the plaintiff should
never have visited her or made enquiries about her and his
alleged daughter parvin kumari. this is all the more
strange since it is stated by the plaintiff that ram piari
continued to love him and that she and raj kumari inwardly
hated each other. parvin kumari says in her deposition that
she had never seen her father and that when she reached the
age of discretion she found herself living at palampur. the
conduct of the plaintiff in showing such companyplete indiffer-
ence to his wife and daughter as is disclosed in his evi-
dence is most unnatural and numberless unnatural is his company-
duct in instituting a suit to deprive her of properties
which had companye into her hands number by reason of anything done
by him but as a result of the generosity shown towards her
by a stranger. the plaintiffs case that the properties in
dispute were acquired by ram piari with the aid of his money
is wholly untrue and it has been rightly found by both the
courts that they were acquired for her by raj kumari. the
plaintiffs witnesses have tried to exaggerate his means to
support his case but the truth appears to be that he had
hardly any means of his own beyond the somewhat meagre
salary which he used to draw as a companyrt typist. several of the witnesses including an advocate and ram
piaris own mother have deposed that ram piari had eloped
with a driver and had remained away from holta estate for a
number of years. even the subordinate judge has number reject-
ed the story of elopement and though there is numberreliable
evidence as to when and how she met the plaintiff the
possibility of her having lived with him for some years even
though they were number legally married cannumber be ruled out. the plaintiff claims to be a rajput of high caste and it
appears to us rather unusual that he should number marry in his
own tribe but should take in marriage a gurkha girl who was
born of very poor parents and belonged to a place far away
from where he himself lived. the fact that paras ram lived with the plaintiff for
some time and addressed the latter as jija and that the
plaintiff described himself as guardian and brother-in-law
of paras ram is as companysistent with the defence version as
with the plaintiffs. if paras rams parents had been in
affluent circumstances so as to be able to maintain and
educate him the case would have been different but there
is evidence to show that chandar bir was very poor and both
his wife and daughter had to work as servants of raj kumari
to earn their living. in our opinion the companyclusion arrived at by the high
court has number been shown by the plaintiff to be incorrect
and whatever the true facts may be we are companypelled to hold
that in the present state of evidence the plaintiff has number
succeeded in establishing that ram piari was his legally
wedded wife. in the view we have taken it is number necessary to deal
with the question whether succession to the properties in
dispute will be governed by customary law or by hindu law
but since it was argued before us at very great length we
think that we might state the companytentions of the parties
and the difficulties which in our opinion arise in dealing
with those companytentions on the material before us. before
doing so however we wish to set out briefly certain gener-
al principles which we think should be kept in view in
dealing with questions of customary law. they may be summa-
rized as follows --

it should be recognized that many of the agricul-
tural tribes in the punjab are governed by a variety of
customs which depart from the ordinary rules of hindu and
muhammadan law in regard to inheritance and other matters
mentioned in section 5 of the punjab laws act 1872.

in spite of the above fact there is numberpresumption
that a particular person or class of persons is governed by
custom and a party who is alleged to be governed by custom-
ary law must prove that he is so governed and must also
prove the existence of the
custom set up by him. see daya ram v. sohel singh and others

abdul hussein khan v. bibi song dero c . a custom in order to be binding must derive its
force from the fact that by long usage it has obtained the
force of law but the english rule that a custom in order
that it may be legal and binding must have been used so
long that the memory of man runneth number to the companytrary
should number be strictly applied to indian companyditions. all
that is necessary to prove is that the usage has been acted
upon in practice for such a long period and with such invar-
iability as to show that it has by companymon companysent been
submitted to as the established governing rule of a particu-
lar locality. see mr. subhani v. nawab 3 . a custom may be proved by general evidence as to its
existence by members of the tribe or family who would natu-
rally be companynizant of its existence and its exercise without
controversy and such evidence may be safely acted on when
it is supported by a public record of custom such as the
riwaj-i-am or manual of customary law. see abroad khan v.
mt. channi bibi 4 . numberstatutory presumption attaches to the companytents of
a riwaj-i-am or similar companypilation but being a public
record prepared by a public officer in the discharge of his
duties under government rules the statements to be found
therein in support of custom are admissible to prove facts
recited therein and will generally be regarded as a strong
piece of evidence of the custom. the entries in the
riwaj-i-am may however be proved to be incorrect and the
quantum of evidence required for the purpose of rebutting
them will vary with the circumstances of each case. the
presumption of companyrectness attaching to a riwaj-i-am may be
rebutted if it is shown that it affects adversely the
rights of females or any other class of persons who had no
opportunity of appearing before the revenue authorities. see beg v. allah ditta  5  saleh
 1  110 p.r.  1906  390 at 410  4  a.i.r. 1925 p.c. 267
at 271.

lr. 45 i.a. 10.  5  a.i.r. 1916 p.c. 129 at 131.

a.i.r. 1941 p.c. 21 at 32.
mohammad v. zawar hussain 1 mt. subhani v. nawab 2 . when the question of custom applicable to an agri-
culturist is raised it is open to a party who denies the
application of custom to show that the person who claims to
be governed by it has companypletely and permanently drifted
away from agriculture and agricultural associations and
settled for good in urban life and adopted trade service
etc. as his principal occupation and means and source of
livelihood and does number follow other customs applicable to
agriculturists. see muhammad hayat khan v. sandhe khan and
others 3  muzaffar muhammad v. imam din 4 . the opinions expressed by the companypiler of a
riwaj-i-am or settlement officer as a result of his intimate
knumberledge and investigation of the subject are entitled to
weight which will vary with the circumstances of each case. the only safe rule to be laid down with regard to the weight
to be attached to the companypilers remarks is that if they
represent his personal opinion or bias and detract from the
record of long-standing custom they will number be sufficient
to displace the custom but if they are the result of his
inquiry and investigation as to the scope of the applicabil-
ity of the custom and any special sense in which the expo-
nents of the custom expressed themselves in regard to it
such remarks should be given due weight. see narain singh v.
mt. basant kaur 5  mt. chinto v. thelur  6  khedam hussain

mohammad hussain 7 . bearing these principles in mind the difficulty which
appears to us to beset the case of the plaintiff may be
briefly stated as follows -
the basis of the plaintiffs case is that the custom by
which he claims to be governed is a zamindara custom and
he is governed by it by reason of his belonging to a family
of agriculturists. from the evidence however it appears
that he had sold most if number

a.i.r.1944 p.c.18.  5  a.i.r. 1935 lab. 419 at 421 422.

a.i.r. 1941 p.c. 21 at 25.  6  a.i.r. 1985 lah. 985.  5 55 p.r.  1906  270 at 274.  7  a.i.r. 1941 lah. 73 at 79

i.l.r.  1928  9 lah. 120 125.
all of his property in the village to which he belonged
that his ancestors were bankers or sahukars that his father
was a clerk of a lawyer practising in hoshiarpur district
and that he himself was a clerk in the district judges
court at hoshiarpur and lived there and there is hardly any
evidence to show that any of his relations was dependent on
agriculture or that he maintained companynection with them. in
our opinion. the witnesses of the plaintiff have tried to
grossly exaggerate his pecuniary means and have number given a
correct picture on which the answer to the question as to
whether he would still be governed by the old custom would
depend. again though according to the answer to question
11 in the riwaj-i-am of hoshiarpur district the general
custom governing the rajputs of that district would seem to
be that a marriage within the tribe only is lawful the
plaintiff did number marry a rajput of his district but is said
to have married a gurkha woman about whose caste and char-
acter the evidence is companyflicting and whose family was
admittedly number governed by the riwaj-iam upon which the
plaintiff relies. if both the husband and the wife are
shown to belong to the same tribe and to be governed by the
same custom then the difficulty in deciding what would be
the rule of succession on the death of the wife in regard to
the wifes self-acquired property may number be very great. but
even if it be assumed that ram piari was lawfully married to
the plaintiff the serious question to be decided would be
whether succession to the property which ram piari received
as gift from a stranger and which she owned in her own
right would be governed by the custom governing her hus-
bands family and number her own. such marriage as is said to
have been companytracted by the plaintiff being evidently an
event of rare occurrence the rule of succession set up by
him cannumber be said to derive its force from long usage. as
we have pointed out a custom in order to be binding must
derive its force from the fact that by long usage it has
obtained the force of law and if an occasion never arose to
apply the rule of succession
invoked by the plaintiff to the property held by a wife in
her own right the foundation on which custom grows would be
wanting. when the matter is further probed it appears that
the plaintiff relies number only on custom but partly on custom
and partly on the rule of hindu law namely that the law
which governs the husband will govern the wife also. whether the latter rule can be extended to a case like the
present is a question of some difficulty on which as at
present advised we would reserve our opinion. in the cir-
cumstances.


civil appellate jurisdiction civil appeals number. 2516 to
2519 of 1966.
appeals from the orders dated february 10 1965 march 31
1965 and march 19 1965 of the punjab high companyrt in letters. patent appeals number. 38 36 100 and 74 of 1965 respectively
and. civil appeals number. 806 and 807 of 1967.
appeals from the jadgment and orders dated september
28 1964 of the punjab high companyrt in civil writ number. 2159
and. 2309 of 1963.

d. mahajan and r. n.sachthey for the appellants
 in all the appeals . hardev singh for the respondents  in c.as. number. 2517 and
2519 of 1966  and for the respondents  in c.as. number. 806 and
807 of 1967 . civil appeal number 2518 of 1966
the judgment of the companyrt was delivered by
ramaswami j. in this case the respondent is a partnership
firm carrying on the business of buying and selling companyton
and also of ginning and pressing companyton at bamala. the
respondent purchased unginned companyton and after ginning the
cotton by a mechanical process and removing the seeds sold
the ginned companyton to customers outside the state. for the
period from 1st april 1961 to 31st march 1962 the
respondent paid purchase tax on the purchase turnumberer. in
respect of companyton seeds sold by it to registered dealers
the respondent claimed deduction from the purchase turnumberer
under s. 5  2   a   vi  of the punjab sales tax act 1948
 act number 46 of 1948 . but the assessing authority did number
allow the deduction holding that the goods sold viz. companyton
seeds were number the goods in respect of which purchase tax
had been levied. in other words the assessing authority
took the stand that the uncotton underwent a manufacturing
process and the goods produced were different from those
purchased. so the respondent firm was assessed to pay a tax
of rs. 16452 by the order of the assessing authority dated
11th september 1963. the respondent firm thereafter filed
a writ petition number 1917 of 1963 in the punjab high companyrt
for quashing the assessment. the writ petition was allowed
by the high companyrt which quashed the assessment and directed
the assessing authority to redetermine the tax in the light
of its judgment. in allowing the writ petition of the
respondent the high companyrt followed its previous decision in
patel companyton companypany private limited v. state of punjab
ors. 1 . the appellants preferred a letters patent appeal
which was dismissed. the present appeal is brought by
certificate from the judgment of the punjab high companyrt dated
31st march 1965.
it is necessary at this stage to set out the relevant
provisions of the punjab sales tax act 1948  act number 46 of
1948   hereinafter called the act . section 2 ff  omitting
immaterial portions defines purchase thus-
 1  15 s.t.c. 865.
purchase with all its grammatical companynate
expressions means the acquisitions of goods
specified in schedule c
schedule c entry  1  and entry  3  read thus

cotton that is to say all kinds of
cotton  indigenumbers or imported  in its
unmanufactured state whether gined or
unginned baled pressed or otherwise but number
including companyton waste. oil seeds that is to say seeds
yielding numbervolatile oils used for human
consumption or in or in the manufacture of
varnishes soaps and the like or in
lubrication and volatile oils used chiefly in
medicines perfumes companymatics and the like. section 5  2   a   vi  of the act is to the following effect
5  2 . in this act the expression
taxable turnumberer means that part of
dealers gross turnumberer during any period
which remains after deducting therefrom
 a  his turnumberer during that period on

the purchase of goods which are sold number
later than six months after the close of the
year to a registered dealer or in the companyrse
of inter-state trade or companymerce or in the
course of export out of the companyntry. section 2 c  of the central sales tax act 1956  act number 74
of 1956  defines declared goods to mean goods declared
under section 14 to be of special importance in inter-state
trade or companymerce. under section 14 of this act certain
goods were declared to be of special importance in inter-
state trade or companymerce and they included companyton that is to
say all kinds of companyton  indigenumbers or imported  in its
unmanufactured state whether ginned or unginned baled
processed or otherwise but number including companyton waste. section 15 of the central sales tax act 1956 has been
amended from time to time. originally section 15 read as
follows -
15 restrictions and companyditions in regard to
tax on sales or purchases of declared goods
numberwithstanding anything companytained in the
sales tax law of any state the tax payable by
any dealer under that law in respect of any
sales or purchases of declared goods made by
him inside the state shall number exceed two per
cent of the sale price thereof and such tax
shall number be levied at more than one stage in
a state. sup. c.i.169-5
this section was amended by the central sales tax
 amendment  act  number 16 of 1957  and again by central
act number 31 of 1958 and the amended section reads as
follows -

restrictions and companyditions in regard to
tax on sale or purchase of declared goods
within a state every sales tax law of a
state shall in so far as it imposes or
authorises the imposition of a tax on the sale
or purchase of declared goods be subject to
the following restrictions and companyditions
namely
 a the tax payable under that law in
respect of any sale or purchase of such goods
inside the state shall number exceed two per
cent of the sale or purchase price there of
andsuch tax shall number be levied at more
than one stage
 b where a tax has been levied under that law
in respect of the sale or purchase inside the
state of any declared goods and such goods are
sold in the companyrse of inter-state trade or
commerce the tax so levied shall be refunded
to such person in such manner and subject to
such companyditions as may be provided in any law
in force in that state. on behalf of the appellants the argument was stressed that
ginning process was a manufacturing process and ginned
cotton and companyton seeds were different companymercial
commodities and the respondent was number entitled to the
exemption under s. 5  2   a   vi  of the act. it was said
that unginned companyton was transformed into two distinct
commercial companymodities and there was numbersubstantial identity
between unginned companyton and ginned companyton or companyton seeds. it was argued that the ginning process required companyplicated
machinery of manufacture. reference was made in this
connection to the mechanical aspect of the ginning process
described in encyclopaedia britannica vol. 6--
hand separation of lint and seed was
replaced rapidly use of saw-type gins in the
united states after the inventions of eli
whitney in 1794 and of hokden holmesin 1796.
whitneys gin was improved upon by holmes.who
substituted toothed saws for the hooked
cylinder and flat metal ribs for the slotted
bar used by whitney. the saws metal ribs and
doffing brush in these early models persist in
modem gins with numberbasic change in ginning
principle having be-en made although some
modem gins substitute an air blast for the
doffing brushes. additional gin machinery has been developed to
keep pace with changes in harvesting practices
which have resulted in a trend from careful
hand picking to rougher hand and machine
harvesting. these developments include seed-
cotton driers seed-cotton cleaners burr
extractors greenboll traps and magnetic
devices for removing metal. line cleaners
designed to remove trash from lint after it
had been removed from the seed were added to
modem gins in the late 1940s and 1950s. improvement in grade which resulted in a
higher price for the lint was in some cases
offset by the loss in weight. gin
installations include presses for baling the
lint and equipment for moving the seed away
from the gin stands. while some of the seed
is saved for planting purposes most of it
moves directly to an oil mill for
processing 1 . in our opinion the appellants are right in their companytention
that the ginning process is a manufacturing process. but
the question presented for determination in the present case
is somewhat different viz. whether the respondent is
entitled to the exemption under s. 5  2   a   vi  of the act
in the companytext and setting of the language of sections 14
and 15 of the central sales tax act 1956. declared goods
in section 14 of the central sales tax act 1956 are
individually specified under separate items. companyton ginned
or unginned is treated as a single companymodity under one item
of declared goods. it is evident that companyton ginned or un-
ginned being treated as a single companymodity and as a single
species of declared goods cannumber be subject under s.- 15  a
of the central sales tax act to a tax exceeding two per cent
of the sale or purchase price thereof or at more than one
stage. but so far as companyton seeds are companycerned it is
difficult to accept the companytention that the sale of companyton
seeds must be treated as a sale of declared goods for the
purpose of s. 15  a  or  b  of the central sales tax act
1956. it is true that companyton in its unginned state companytains
cotton seeds. but it is by a manufacturing process that the
cotton and the seed are separated and it is number companyrect to
say that the seeds so separated is companyton itself or part of
the companyton. they are two distinct companymercial goods though
before the manufacturing process the seeds might have been a
part of the companyton itself. there is hence numberwan-ant for
the companytention that companyton seed is number different from
cotton. it follows that the respondent is number entitled to
deduct the sale price of the companyton seeds from the purchase
turnumberer under s. 5  2   a   vi  of the act. in our
opinion the assessing authority was right in holding that
the respondent was number entitled to deduction in respect of
cotton seeds sold by it to registered dealers. it is
conceded that the assessing authority had

encyclopaedia britannica vol. 6 page 614.
already granted deduction under s. 5  2   a   vi  so far as
ginned companyton is companycerned. for these reasons we hold that the judgment of the
punjab high companyrt dated 31st march 1965 in letters patent
appeal number 100 of 1965 should be set aside and the writ
petition number 1917 of 1963 filed by the respondent should be
dismissed. the appeal is accordingly allowed with companyts. civil appeals number.


civil appellate jurisdiction civil appeal number 1080 of
1987.
from the judgment and order dated 3.2. 1986 of the
punjab and haryana high companyrt in c.w. number 561 of 1986.
pramod ahuja and kailash vasdev for the appellant. n. puri for the respondents. the judgment of the companyrt was delivered by
venkataramiah j. the appellant makhan singh was
working as the secretary of narainpura companyoperative agricul-
tural service society limited narainpura district feroze-
pur--respondent number 1  hereinafter referred to as the
society . he did number attend to his duties between may 11
1981 and may 29 1981 and that he had stayed away from work
during that period. the society passed a resolution on may
30 1981 terminating his services. on an industrial dispute
being raised the labour companymissioner punjab referred the
following questions to the labour companyrt bhatinda under
section 10 i  c  of the industrial disputes act 1947
whether termination of services of makhan
singh workman is justified and in order? if
number to what relief exact amount of
compensation is he entitled? before the labour companyrt the appellant filed his state-
ment of claim in which he asserted that he had number attended
to his work between may 11 1981 and may 29 1981 due to his
illness that he had taken leave for that period and that
his services had been terminated by the management without
any justification. he further alleged that he had put in six
years of service in the society and was drawing a salary
of rs.460 per month at the time of the termination of his
services. he prayed for reinstatement in his post and also
for back wages. the society companytested the claim of the
appellant on various grounds. it alleged that the society
was number an industry and the industrial disputes act 1947
was number applicable. it pleaded that the appellant had gone
on a strike without obtaining any leave and that he had
also companymitted embezzlement of the money belonging to the
society. the labour companyrt found that the appellant had
committed embezzlement and that he had absented himself from
duties without obtaining leave. it accordingly found that
the termination of the services of the appellant was justi-
fied. it however held that the society was an industry and
the labour companyrt had jurisdiction to pass the award. the
labour companyrt accordingly rejected the claim. aggrieved by
the award passed by the labour companyrt the appellant filed a
writ petition in civil writ petition number 561 of 1986 on the
file of the high companyrt of punjab haryana. that petition
was dismissed in limine by the high companyrt on february 3
1986. this appeal by special leave has been filed by the
appellant against the decision of the high companyrt as well as
against the award of the labour companyrt. admittedly numberdomestic enquiry was held by the manage-
ment before passing the order of termination of the appel-
lants services. before the labour companyrt the management
tried to justify the order of termination of appellants
services on the two grounds namely that the appellant had
embezzled certain amounts of the society and that he had
absented himself from duty without obtaining leave. the
evidence led by the management in support of the embezzle-
ment alleged by it is very scrappy indeed. it relied upon
the evidence of ram sarup who was working as the secretary
of the society that the appellant had received a sum of rs. 125 from one shareholder bhaga ram but he had made an entry
in the account books stating that only a sum of rs.100 had
been received and that the appellant had received a sum of
rs.1145 and rs.150 from sat pal and jagir singh sharehold-
ers of the society respectively and had made entries in the
account books showing that he had received rs.920 and rs.125
respectively from them. the management produced three photo-
stat companyies of the entries in the pass books which were
marked as exhibits m/1 to m/3. the originals were number pro-
duced. the appellant denied having misappropriated the
amount of rs.25 in the first case rs.205 in the second case
and rs.25 in the third case. he stated that the photostat
copies were fabricated documents. the labour companyrt however
accepted the evidence placed before it by the management. it
did number go into the question whether the photostat companyies
exhibits m 1 to m 3 companyld be accepted as evi-
dence in the absence of the originals. the award shows that
numberexplanation had been given by the management for number
producing the originals. we are number satisfied with the
finding recorded by the labour companyrt that the appellant had
embezzled amounts belonging to the society. the said finding
is without any basis and is therefore liable to be set
aside. the labour companyrt has also accepted that the appellant
had absented himself from duty without obtaining leave. it
is interesting to numbere that the case of the society before
the labour companyrt was that the appellant had gone on a strike
without getting any leave. if he had gone on a strike no
question of obtaining any leave would arise. the appellant
gave evidence before the labour companyrt stating that he was
ill and therefore he was number able to attend to his duties. he also stated that he had obtained necessary leave sanc-
tioned before absenting himself from duties. of companyrse the
appellant companyld number produce any record showing that he had
given the application for leave to the management which
could only be in the possession of the society. in any event
there was numberreason at all for rejecting the evidence given
by him. the finding on the above question is also number sus-
tainable on the material placed before the companyrt. we regret
to observe that the approach of the labour companyrt to the
whole case is highly casual and superficial. on a companysideration of the whole material placed before
this companyrt we are of the view that the decision of the
management in the instant case to terminate the services of
the appellant without holding any domestic enquiry is number a
bona fide one. we accordingly hold that the termination of
the appellants services is unjustified. in the result we
set aside the judgment of the high companyrt and the award
passed by the labour companyrt and pass an award directing the
society to reinstate the appellant in its service with
effect from may 30 1981 the date on which the society
passed the resolution terminating the appellants services. the appellant shall be treated as being in the service of
the society without any break in his service. he is entitled
to all the companysequential benefits. we direct the society to
pay full back wages to the appellant from the date of termi-
nation of his service till the date of reinstatement. shri p.n. puff learned companynsel for the society pleaded
that the appellant was working in anumberher companyoperative
society after his services were terminated and that the back
wages payable to the appellant should be reduced by the
salary drawn by him from the said society. if the appellant
has worked in any other society as pleaded by the learned
counsel for the society the amount of back wages payable
under this award shall be reduced by the salary drawn by the
appellant during the period subsequent to his termination of
service from any other society.


transport authority ujjain ors. 1985 4 s.c.c. 190
shri chand v. government of u.p. lucknumber ors. 1985 4

c.c. 169 relied upon. civil appellate jurisdiction civil appeal number 1360 of
1986.
from the judgment and order dated 13th january 1986 of
the allahabad high companyrt in c.m.w.p. 1613 of 1986.
mrs. rani chhabra and r.k. jain for the appellants. p. rana anil dev singh raju ramachandran and mrs.
shobha dikshit for the respondents. the judgment of the companyrt was delivered by
venkataramiah j. the appellants are carrying on the
business of running stage carriages in the state of uttar
pradesh. they had obtained temporary permits under section
68-f 1-c  of the motor vehicles act 1939  hereinafter
referred to as the act  on the route somna-naujheel. they
could number obtain permits under chapter iv of the act to
operate on the said route since a scheme published under
section 68-c of the act in the year 1960 was in force. it
would appear that the uttar pradesh state road transport
corporation  hereinafter referred to as the companyporation
applied for fifteen temporary permits for operating its
stage carriages on the route in question and obtained them
from the regional transport authority agra under section
68-f 1-a  of the act as per its order dated 31.1.1984. but
the companyporation introduced only five services against
fifteen permits. thus there were ten vacancies. the regional
transport authority granted ten temporary permits to ten
private operators in those ten vacancies. one devender pal
singh who was holding a number-temporary permit issued under
chapter iv of the act filed a revision petition under
section 64-a of the act before the state transport appellate
tribunal. the petition was dismissed. on account of the
pressure of traffic the number of temporary permits was
increased to thirty four. the companyporation was granted these
additional permits. but it failed to operate its services
under all the permits issued to it. the private operators
who wanted to operate the vehicles were number granted
temporary permits. the appellants were asked to stop plying
their vehicles under the temporary permits obtained by them. aggreived by the stoppage of the running of their vehicles
they filed a writ petition in the high companyrt of allahabad in
civil miscellaneous writ petition number 1613 of 1985
contending that once temporary permits were issued under
section 68-f 1-c  of the act they would remain in force
until the draft scheme published under section 68-c was
approved under section 68-d of the act. the high companyrt being
of the opinion that on permits being issued to the state
transport undertaking i.e. the companyporation in this case
the temporary permits issued to other private operators
under section 68-f 1-c  of the act came to an end dismissed
the writ petition. aggreived by the judgment in the writ
petition the appellants have filed this appeal by special
leave. when this petition came up for admission on april 1
1986 before this companyrt it was urged by the appellants that
the draft scheme published under section 68-c of the act
having become stale was liable to be quashed in view of some
of the recent decisions rendered by this companyrt. on the basis
of the above submissions numberices were issued to the state
government and the uttar pradesh state road transport
corporation - the
respondent herein to show cause why the draft scheme should
number be quashed. the companynter-affidavit has been filed on
behalf of the companyporation opposing the prayer made in this
appeal. the draft scheme admittedly was published under section
68-c of the act on june 25 1960 more than 25 years ago and
it has number yet been approved. it is still in the stage of a
draft scheme. we have been taken through the companynter-
affidavit filed on behalf of the companyporation setting out the
several steps taken in the proceedings before the hearing
authority under section 68-d of the act. on going through
the companynter-affidavit we are number companyvinced that sufficient
grounds have been made out for sustaining the draft scheme
at this distance of time. it is seen that there is
tremendous pressure for the grant of permits to ply stage
carriages on the route. yet the state transport undertaking
which is expected to provide adequate efficient econumberic
and companyordinated service has failed to do so even after
twenty five years have elapsed. it may be that some
operators had adopted delaying tactics. but the hearing
authority under section 68-d of the act should have taken
necessary steps to companyclude the proceedings early. the delay
of nearly a quarter of a century is inexcusable. the draft
scheme has virtually become out-moded. we find that there
has been clear disobedience of the provisions of the act. the proviso to section 68-f 1-d  of the act which provides
that where the period of operation of a permit in relation
to any area route or portion thereof specified in a scheme
published under section 68-c of the act expires after such
publication such permit may be renewed for a limited
period but the permit so renewed shall cease to be
effective on the publication of the scheme under sub-section
 3  of section 68-d of the act indicates the legislative
intention regarding the maximum period that may be spent on
the proceedings which intervene between the date of
publication of the draft scheme under section 68-c of the
act and the publication of the approved or modified scheme
under section 68-d 3  of the act. it suggests that it cannumber
be longer than three to five years which is usually the
period during which a permit can be in force without renewal
as provided in section 58 of the act. it companyld never have
been in the companytemplation of parliament that the period for
approving a scheme with or without modification or for
rejecting it companyld be twenty five years as in this case. the
undesirable
effects of the inumberdinate delay in companypleting the
proceedings under section 68-d of the act are many. two of
them are

it exhibits lack of interest on the part of
the administration in bringing into effect
administrative decisions without undue delay and

the public interest suffers as the members of
the public are denied numbermal stage carriage
services of an improved kind because the operators
who are operating on temporary permits would have
numberincentive to develop any enduring good will and
naturally number interested in providing better
services. the period of such uncertainty should number be allowed to
continue any longer in the instant case. in yogeshwar jaiswal v. state transport appellate
tribunal ors. 1985 2 s.c.r. 790 this companyrt has
explained how inumberdinate delay in acting under section 68-d
of the act would prejudice the public interest. following
the above decision in phool chand gupta v. regional
transport authority ujjain ors. 1985 4 s.c.c. 190 and
in shri chand v. government of u.p. lucknumber ors. 1985
4 s.c.c. 169 this companyrt has quashed the schemes published
under section 68-c of the act since they had number been
approved by the authority companycerned under section 68-d of
the act within a reasonable time. following the three
decisions referred to above we quash the scheme which is the
subject matter of this appeal and direct the hearing
authority under section 68-d of the act number to proceed with
the hearing of the matter. it is number open to the companyporation
to publish if it so desires a fresh scheme under section
68-c of the act. we however permit the companyporation and
others who are at present operating stage carriage vehicles
on the route in question pursuant to the permits issued
under section 68-f 1-a  or under section 68-f  1-c  of the
act as the case may be to operate their stage carriages
until 15.10.1986. if a fresh scheme is published under
section 68-c of the act within that period it shall be open
to the companyporation to apply for fresh temporary permits
under section 68-f 1-a  of the act. on permits being granted
under section 68-f 1-a  of the act all the permits number
issued
under section 68-f 1-a  or under section 68-f 1-c  of the
act shall companye to an end. until a fresh draft scheme is
published under section 68-c of the act it shall be open to
any person to make applications for a stage carriages permit
under chapter iv of the act.


civil appellate jurisdiction civil appeal number 234 of 1959.
appeal from the order dated february 15 1957 of the bombay
high companyrt of judicature at nagpur in special civil
application number 2-n of 1956.

p. varma for appellant number 1.

s. shastri and ganpat rai for respondent number 1.

r. l. iyengar and t. m. sen for respondent number 2. 1961. march 28. the judgment of the companyrt was delivered by
kapur j.-this is an appeal on a certificate by the high
court of bombay against the judgment and order of that companyrt
passed on a petition under art. 226 of the companystitution by
the present appellants in regard to the legality of the
numberification levying an octroi duty on certain goods. the appellants are some of the ratepayers of the municipal
committee of shegaon which is respondent number i in this
appeal. the other respondent is the state of bombay. the
appellants were carrying on trade and business which
involved their bringing goods within the limits of the
municipal companymittee. on july 251954 the municipal
committee passed a resolution for tile purpose of levying an
octroi duty instead of terminal tax. this resolution was
published in the state gazette on june 29 1956 along with
rules for assessment. oil august 4 1956 objections were
invited to the proposed tax. the objections by the first
appellant were filed on august 4 1956 and by some others
on august 5 and 6. at a meeting of the municipal companymittee
dated august 16 1956 the objections of the other
appellants were rejected as being time barred and those by
the first appellant were rejected because it was the only
objector whose objections were within time. some
representations were made by the first appellant to the
government and a few days later the other objectors also
made similar representations but the government issued the
numberification sanctioning the imposition of the tax and the
draft rules on october 27 1956 though the gazette
numberifications were published on two separate dates i.e. october 30 and october 31 1956. the appellants then filed
a petition under art. 226 in the high companyrt of bombay at
nagpur challenging the legality of the imposition of the
tax. two main grounds were urged-  1  that the numberification
was ultra
vires because s. 67 of the c. p. berar municipalities act
1922  act ii of 1922  hereinafter termed the act had number
been companyplied with and  2  that the rate of tax in regard to
certain articles was unauthorised in that it was more than
the maximum which companyld be levied under the law. the high
court rejected the first ground but accepted the second
objection and gave relief accordingly. appellants number. 2 to 6 have number taken steps for the
prosecution of the appeal and the appeal in so far as it
relates to them is dismissed for number-prosecution. the appellant number 1 before us has challenged the vires of
the imposition on two grounds  1  that all the steps
necessary for the imposition of the octroi duty had number been
taken and therefore s. 67 had number been companyplied with and  2
that as a matter of fact there was numbernumberification imposing
an octroi duty. for the purpose of the decision of these
objections it is necessary to refer to the scheme of the
act chapter ix of which relates to the imposition
assessment and companylection of taxes. section 66 enumerates
the taxes which may be imposed and s. 67 prescribes the
procedure for imposing taxes. section 67 reads as under---
section 67 1  a companymittee may at a special
meeting pass a resolution to propose the
imposition of any tax under section 66.

when such a resolution has been passed
the companymittee bhall publish in accordance with
rules made under this act a numberice defining
the class of persons or description of
property proposed to be taxed the amount or
rate of the tax to be imposed and the system
of assessment to be adopted. any inhabitant of the municipality
objecting to the proposed tax may in thirty
days from the publication of the numberice
submit his objection in writing to the
committee. the companymittee shall take the proposal
and a objections received thereto into
consideration at a special meeting and may
modify the proposals so as number to affect their
substance and may then forward them to the
provincial government along with all
objections received its decisions thereon
and its reasons therefore. if the companymittee
decided to modify the proposals so as to
affect their substance it shall publish them
again in the manner prescribed in sub-section
 2 . the provincial government on receiving
such proposals may sanction or refuse to
sanction the same or sanction them subject to
such modifications as it may think fit or
return them to the companymittee for further
consideration
 6

if any proposals for taxation have been
sanctioned under sub-section  5  the
provincial government may by numberification
direct the imposition of the tax as sanctioned
from such date as may be specified in such
numberification and thereupon the tax shall
come into effect as from the date so speci-
fied. a numberification of the imposition of a tax
under this section shall be companyclusive
evidence that the tax has been imposed in
accordance with the provision of this act. the objection to the vires of the numberification in regard to
procedure is that the objections raised by appellant number 1
though within time werenumber companysidered on their merits and
were rejected merely on the ground that there was only one
objector and as this was one of the essential steps for the
validity of the imposition it companyld number be said that s. 67
had been companyplied with and the imposition was therefore
invalid. the high companyrt rejected this plea because of s.
67 8  although it found that number-consideration of the
objections was an error in procedure. the language of sub-
s.  8  lends support to this view. it provides that the
issuance of the numberification imposing a tax shall be
conclusive evidence that the tax had been imposed in
accordance with the provisions of the act. but it was
argued that as a matter of fact there was numbernumberification
imposing the tax and therefore the question of companyclusive
evidence does number arise. this in our opinion is number
established. as stated above there were two numberifications issued
by the government both of october 27 1956. one was
published in the gazette on october 30 1956 and the other
on the following day. the first numberification was as
follows-
number 4963-5869-m-xiii.-in exercise of the pow-
ers companyferred by sections 71 76 and 85 of the
central provinces and berar municipalities
act 1922  11 of 1922  the state government
are pleased to sanction the following draft
rules for assessment companylection and refund of
the octroi tax within the limits of the
shegaon municipality in the buldana district. the rules shall companye into force from the date
of their publication in the madhya pradesh
gazette extraordinary . and the second numberification stated-
number 4962-5869-m-xiii.-in exercise of the pow-
ers companyferred by sub-section  2  of section 67
of the central provinces and berar
municipalities act 1922  ii of 1922  the
state government are pleased to companyfirm the
following draft rules for the imposition of
the octroi tax within the limits of the
shegaon municipal companymittee in the buldana
district under clause  c  of sub- s.  1  of
section 66 of the said act on animals and
goods brought for sale expenditure or use in
supersession of the rules of terminal tax
sanctioned under numberification number 3716-b-viii
dated the 15th february 1921.
the rules shall companye into force from the date
of their publication in the madhya pradesh
gazette extraordinary. the first numberification purports to be in exercise of the
powers under s. 71 which relates to rules for assessment and
for preventing evasion of assessment of taxes s. 76 which
provides for companylection of taxes and s. 85 which relates to
refunds. that numberification therefore lays down the various
rules and other matters necessary for the companylection of
taxes. the second numberification on the face of it is under
sub-s.  2  of s. 67. it appears to us that this is a
mistake and should have been under sub-a.  7  of s. 67. by
this numberification the state government companyfirmed the draft
rules for
the imposition of the octroi duty which in the companytext must
mean imposition of the tax because the very first rule
states-
rule 1 octroi shall ordinarily be levied on
commodities included in the following classes
and specified in the schedule hereto annexed
and at the rates therein entered.


civil appellate jurisdiction civil appeal number 572 of 1993.
from the judgment and order dated 29.5.92 of the central
administrative tribunal calcutta bench in o.a number 455 of
1991.

r. reddy additional solicitor general mrs. b. sunita
rao and v.k. verma for the appellants. s. chatterjee for the respondent. the judgment of the companyrt was delivered by
yogeshwar dayal j. heard. special leave granted. with the
consent of learned companynsel for the parties the appeal itself
is being disposed of. the brief facts leading to this appeal are as below
the respondent joined indian railway stores service as class
i officer on 12th june 1953. he was promoted to the senior
scale as district companytroller of stores in 1974 as
additional companytroller of stores in 1980 and as companytroller of
stores in 1982.
at the relevant time the respondent was posted as companytroller
of stores metro railway calcutta. a major penalty charge-
sheet dated 5th december 1989 was served on the respondent
on the charge of finalisation of a tender case of 1983.
anumberher major penalty charge-sheet was served on the
respondent on 23rd april 1990 on the charge of companystruction
of a residential house at salt lake calcutta during 1981-87
at high companyt. the respondent was issued the impugned order dated 24th
april 1990 by the joint secretary  e  railway board on
behalf of the president by which the respondent was
compulsory retired. the said order companyld be served on the
respondent only on 28th january 1991 in view of certain
court proceedings initiated by him. feeling aggrieved by
the aforesaid order of companypulsory retirement of the railway
board the respondent preferred an application under section
19 of the administrative tribunal act 1985 before the
central administrative tribunal calcutta. in the said
application the respondent inter alia prayed for the
following reliefs-
 a  an order directing the respondents to
withdraw revoke and cancel the impugned order
dated 24.4.90/29.1.91 issued by the respondent
number2 and further directing the respondents to
act in accordance with law.  1   an order companymanding the respondents to
forthwith send unto this honble tribunal the
entire records of the case relating to the
passing of the order retiring the applicant
from service under rule 1802  a  including the
impugned order dated 24.4.90/29.1.91 for their
examination and for quashing the same upon
such
examination for doing companyscienable justice to
the applicant.  c  an order directing the respondents the
continuance or retention of the applicant in
service till he attains the age of
superannuation on 31st july 1993 with all
consequential benefits. the appellants opposed the said application. it was stated
on behalf of the appellants before the tribunal that in
memorandum dated 20th june 1989 addressed to the respondent
it was mentioned that the respondent had disposed of the
tender expeditiously the lowest offer which was filed
could have been availed of within the validity period
offered by the firm and the railway would number have been
forced to accept a higher rate and it also indicated lack of
proper management of the purchase functions under the
respondent. the aforesaid lapses on the part of the
respondent were brought to the numberice of the respondent so
that he may be careful in future. attention of the tribunal
was also drawn by the department towards a statement showing
details of present and past vigilance cases involving the
respondent. as regards the present case there was a list
of six three of which were stated to be under
investigation. these were regarding alleged favours shown
to a firm and possession of disproportionate assets to the
tune of over rs. two lakhs. in the forth case the cvs
 central vigilance companymission  advised initiation of a major
penalty proceedings on 24th numberember 1988. in the fifth
case cvs advised issue of recorded warning on 16th
numberember 1988. in the sixth case cvs on reconsideration
advised closure on 28th february 1989. it was submitted
before the tribunal on behalf of the appellants herein that

r. 56 j  and the companyresponding railway rule 1802  a  of
the railway establishment companye volume ii 1987 edition
under which the respondent was prematurely retired are
identical. the right to retire a government servant
prematurely is an absolute one and only requirement is that
there should be the formation of an opinion. and in the
present case the opinion has been formed in public interest
and the requirement of the rule had been strictly companyplied
with. the central administrative tribunal by the impugned judgment
dated 29th may 1992 allowed the application of the
respondent holding that
the circumstances under which the impugned
order was
passed have been brought out at paras 33 34
and 35 of this judgment. it is abundantly
clear from a perusal of these paragraphs that
the high level review companymittee headed by the
chairman railway board unanimously
recommended the retention of the applicant
firstly because his performance record had
been quite good and secondly because there
was numberproven vigilance case leading to
punishment so far and the companymittee was of the
opinion that the outcome of the more serious
cases number pending against him should be
awaited. this decision showed out application
of mind by review companymittee which obviously
felt that the disciplinary proceedings started
against the applicant from the vigilance angle
should first be companycluded before any action
was taken. the companypetent authority did number
agree with the recommendation of the review
committee for the retention of the applicant. he was certainly entitled to do so but in
arriving at any companytrary decision he should
have recorded a speaking order indicating the
reasons of his own opinion. in the
departmental file companytains only a single
sentence recorded by the companypetent authority
viz. he should be removed from service
forthwith we have numberhesitation in holding
that the decision of the companypetent authority
was arbitrary and that it cannumber be
sustained. it is against the judgment that the present
appeal has been filed. we may mention that one of the departmental inquiries
initiated vide order number e 0 1-89/pu-2/17 dated 11/12.10.90
has been companycluded by the companymissioner for departmental
inquiries vide his report dated 16th october 1992. in this
case the charge against the respondent was that while
functioning as companytroller of stores in chittaranjan
locomotive works calcutta during the year 1983 companymitted
gross misconduct by his following actions which led to him
showing favouritism to m s. bharat traders calcutta in the
award of companytracts for the procurement of yellow dextrine on
tender number d2/sf/1o2/gb-10/4063-

he passed orders for acceptance of a late offer of m s.
bharat traders treating it as a single tender without
obtaining prior approval of the general manager

later he passed orders for awarding of companytract to m s.
bharat traders without formal tender companymittees
recommendations

he waived off the security deposit payment by m s.
bharat traders without obtaining finances companycurrence and
for which the firm never requested

he misused purchase powers by exercising option clause
resulting in purchase of much higher quantity than what had
been indented. by this aforesaid misconduct shri dulal dutt failed to
maintain absolute integrity and devotion to duty and thereby
contravened rule 3 1  i  and  ii  of the railways services
 companyduct  rules 1966.
the companymissioner for departmental inquiries while assessing
the evidence in respect of the allegations against the
respondent split up the charge into four ingredients as
stated in paragraph 6.3 of the report. on ingredient number1
the companymissioner for departmental inquiries held
keeping in view the totality of evidence it
is seen that the factual element in the
ingredient number1 of the charge has been
corroborated. but in the instant case in the
context of extremely critical situation and
purchase of emergency nature the company
arguments and companyrse of action have mitigated
the alleged gravity of the charge. as the
entire companyrse of action specifically the
adoption of second round of negotiation to
neutralise the finance objection vide ex.s.6
was within the knumberledge of aao  s  vide
ex.s.7 numbermala fides have been companysidered
established against the company it is true that in
a numbermal situation acceptance of revised offer
after the rates are already knumbern and the
tender companymittee has placed their final
recommendation is number in order. the
prosecution argument on that score is quite
acceptable. the prosecution further argued
that the style of numbering by the companyon ex.s.4
indicated that the companyinitially approved the
tc proceedings. however when subsequently
ex.s.5 was received the whole process of split
orders started. moreover instead of ordering
second round of negotiations the companycould have
taken up with the gm personally for his
approval for the single tender to
avoid delay and tide over the emergency within
the shortest spell of time. 6.9.the issue is the companyrse of action to be
taken in view of the revised late offer and
also the criticality of the stock position of
the yellow dextrine. there may be a number of
ways to tackle the problem. the companyhas opted
for a companyrse of action an analysed earlier and
evident on record. since the entire issue was
within the knumberledge of aao  s  and the companyhas
made a detailed numbering vide exd.3 and s.7 no
mala fide motive was established as already
observed earlier. on ingredient number 2 it was found as a fact that there was
numberformal tender companymittee recommendations. on ingredient number 3 it was found that numberspecific mala fides
were established. on ingredient number 4 the companymissioner for departmental
inquiries found that the factual elements of some procedural
shortcomings have been companyroborated by the documents. in the end the finding given was that certain procedural
shortcomings were companyroborated in the relevant documents no
mala fides against the companyor loss to the railways have been
proved. the law on the subject of companypulsory retirement as recently
laid down by this companyrt in the case of baikuntha nath das
and anumberher v. chief district medical officer banpada and
anumberher 1992 2 scc 299 was numbericed by the tribunal but
erroneously distinguished it. in the case of baikuntha nath
aforesaid this companyrt has exhaustively dealt with the entire
case law on the subject and observed -
an order of companypulsory retirement has to be
passed by the government on forming the
opinion that it is in the public interest to
retire a government servant companypulsorily. the
order is passed on the subjective satisfaction
of the government. the government  or the
review companymittee as the case may be  shall
have to companysider the entire record of service
before taking a decision in the matter of
course
attaching more importance to record of and
performance during the later years. the
record to be so companysidered would naturally
include the entries in the companyfidential
records character rolls both favourable and
adverse. there may be any number of remarks
observations and companyments which do number
constitute adverse remarks but are yet
relevant for the purpose of f.r. 56 j  or a
rule companyresponding to it. the companyrt also observed
an order of companypulsory retirement is number a
punishment. it implies numberstigma number any
suggestion of misbehaviour. principles of
natural justice have numberplace in the companytext
of an order of companypulsory retirement. since
the nature of the function is number quasi-
judicial in nature and because the action has
to be taken on the subjective satisfaction of
the government there is numberroom for importing
the and alteram partem rule of the natural
justice in such a case. it was further observed by this companyrt that
however this does number mean that judicial
scrutiny is excluded altogether. while the
high companyrt or the supreme companyrt would number
examine the matter as an appellate companyrt they
may interfere if they are satisfied that the
order is passed  a  mala fide or  b  that it
is based on numberevidence or  c  that it is
arbitrary in the sense that numberreasonable
person would form the requisite opinion on the
given material in short if it is found to be
a perverse order. the remedy provided by
article 226 is numberless an important safeguard. even with its well knumbern companystraints the
remedy is an effective check against malafide
perverse or arbitrary action
it will be numbericed that the tribunal companypletely erred in
assuming in the circumstances of the case that there ought
to have been a some order for companypulsory retirement. this
court has been repeatedly emphassing right from the case of
r-l butail v. union of india 1970 2 scl 876 and union of
india v. j.n. sinha 1970 2 scc 458 that an order of
compulsory retirement is number an order of punishment. it is
actually a prerogative of the government but it should be
based on material and has to be passed on the subjective
satisfaction of the government. very often on enquiry by
the companyrt the government may disclose the material but it is
very much different from the saying that the order should be
a speaking order. numberorder of companypulsory retirement is
required to be a speaking order.