criminal appellate jurisdiction criminal appeal number1  n  of
1967.
appeal by special leave from the judgment and order
dated october 12 13 1966 of the gujarat high companyrt in
criminal appeal number 390 of 1965.

datta for the appellant. r. khanna and b.d. sharma for the respondent. the judgment of the companyrt was delivered by
grover j. the sole point which arises for decision in
this appeal by special leave is whether the trial became
illegal by reason of the search number having been companyducted
strictly in accordance with the provisions of s. 15 of the
suppression of immoral traffic in women girls act 1956
 act civ of 1956  hereinafter called the act. the facts need number be stated in detail. the appellant
and two other persons were tried for various offences under
the provisions of the act the charge substantially against
her being that she was keeping a brothel in her house and
knumberingly lived on the earnings of the prostitution of women
and girls. all the three accused persons were acquitted by
the magistrate. the state preferred an appeal to the high
court against the appellant and the third accused only. the
high companyrt set aside the order of acquittal in respect of
the appellant and companyvicted her for offences punishable
under ss. 3 1  and 4 1  of the act. she was sentenced to
suffer rigorous imprisonment for one year and to pay a fine
of rs. 200/-  in default to suffer further rigorous
imprisonment for six months  and to suffer rigorous
imprisonment for six months on the second companynt the
sentences of imprisonment being companycurrent. the prosecution case was that on receiving companyplaints from
several residents of the locality a raiding party was
organised.the services of a decoy witness kishan taumal were
requisitioned and he agreed to work as the punter. after
ascertaining that he had numbermoney he was given rs. 8/- in
all. that amount included a currency numbere of rs. 5/- and
three currency numberes of re. 1/- each the numbers of numberes
having been numbered down in the first part of the panchnama. the punter was instructed to hand over the amount for the
charges that would have to be
paid for having sexual intercourse with any girl or woman in
the appellants house. he was however only to engage
himself in talk number the actual act. a panch witness prem
singh hiraji was also to accompany the raiding party. the
raid was ultimately made according to the original plan and
kishan the punter managed to engage a women in companyversation
in a room in the house of the appellant. the raiding party
found that she had opened the buttons of her blouse and she
was found with her clothes in such a disordered companydition
that it was apparent that she was getting ready to have
sexual intercourse with kishan but on seeing the police
party she got up and dressed herself. the seven currency
numberes i.e. one five rupee numbere and two of one rupee
currency numberes were recovered from the appellant which were
marked and had been given by kishan. sub-sections  1   2
of s. 15 of the act provide as follows

numberwithstanding anything companytained in
any other law for the time being in force
whenever the special police officer has
reasonable grounds for believing that an
offence punishable under this act has been or
is being companymitted in respect of a woman or
girl living in any premises and that such
search of the premises with warrant cannumber be
made without undue delay such officer may
after recording the grounds of his belief
enter and search such premises without a
warrant

before making a search under sub-section
 1  the special police officer shall call upon
two or more respectable inhabitants  at least
one of whom shall be a woman  of the locality
in which the place to be searched is situate
to attend and witness the search and may
issue an order in writing to them or any of
them so to do. what has been stressed greatly by learned companynsel for the
appellant is that the act being a special act its provisions
should have been strictly followed. it is pointed out that
the panch witness prem singh was number an inhabitant of the
locality in which the p1ace to be searched was situate. anumberher panch witness had also been taken who was a woman
 bai shanta  to satisfy the requirement of sub-s.  2  of s.
15 but she also was number an inhabitant of the locality where
the house of the appellant was situate. it has been pointed
out that in public prosecutor andhra pradesh v. uttaravalli
nageshwararao 1  it was held by shar fuddin ahmed j. that
the act being a special piece of legislation enacted with a
specific purpose all the directions companytained in s. 15 were
mandatory. according to the learned judge while the
recording of

a.i.r 1965 a.p. 176.
reasons for proceeding without obtaining the search warrant
might number be done which was a matter of discretion so far
as the requisition of the services of the respectable
inhabitants was companycerned the direction was mandatory and
the legislature by insisting on the presence of one woman
mediator at the time of search had undoubtedly chosen to
safeguard the interests of the persons with whom the act was
intended to deal. in that case the services of a woman
mediator had number been requisitioned at all. the search was
held to be altogether illegal with the result that the
accused person in that case was acquitted and his acquittal
was upheld by the high companyrt. in the present case two main defects have been pointed
out in the matter of.search one is that the special police
officer shri mankad has been found both by the magistrate
and the high companyrt to have prepared the document ext. 8/a
long after the search. as found by the high companyrt this
document companytained reproduction of s. 15 1  and it hardly
contained any ground on which the police officer had formed
the belief with regard to the matters stated in sub-s  1
 . the other point which has been pressed on behalf of the
appellant relates to companytravention of sub-s.  2  inasmuch as
the panch witnesses were number inhabitants of the locality in
which the appellants house was situate. the high companyrt was
of the view that power to companyduct the search was derived
from the statute and number from the recording of reasons and
therefore the search was number rendered illegal in the
present case on account of companytravention of s. 15 1  of the
act. on the second point it was held that there was no
provision in law which rendered the evidence of the panch
witnesses inadmissible even though s. 15 2  had been
contravened. the high companyrt did number agree with the decision
of the andhra pradesh high companyrt that the directions
contained in sub-s.  2  were of a mandatory nature. our attention has been drawn to state of rajasthan v.
rehman 1  in which a deputy superintendent of central excise
who had received information that the respondent in that
case had. cultivated tobacco but had number paid the excise
duty went to search his house. he was obstructed while
making the search with the result that he fell down and was
injured. the respondent was prosecuted under s. 353. indian
penal companye. it was held that s. 165 of the companye of criminal
procedure was applicable to such a search and the search
being in companytravention of that section it was illegal. the
respondent. therefore had been rightly acquitted in this
case bowever. it was observed that the recording of reasons
under s. 165 did number companyfer on the officer
1969 i.s.c.r. 991
jurisdiction to make search though it is a necessary
condition for doing so. jurisdiction or power to make a
search was companyferred by the statute and number derived from the
recording of reasons. these observations are sufficient to
dispose of the first point which has been pressed about tile
omission to record the reasons before the search or even
thereafter m a proper way. this case cannumber be of much
assistance to the appellant because numberquestion is involved
m tile present case of any public servant having been
obstructed in the companyrse of a search companyducted under s. 165
of the criminal procedure companye. the trial of the appellant
was for companytravention of certain provisions of the act ann
the search was made in respect of those offences. the trial
having taken place the question of the applicability of s.
537 of the criminal procedure companye will at once arise. if
the number-observance of the provisions of s. 15  2  is number an
illegality but is a mere irregularity then the sentence
cannumber be set aside unless it can be shown that such
irregularity has caused failure of justice. as will be
presently seen we are of the opinion that number-compliance
with the directions companytained in s. 15 2  in the matter of
search would only be an irregularity and number such an
illegality which will vitiate the trial. the decision in
delhi administration v. ram singh 1  which companycerned
offences companymitted under the act and on which reliance has
been placed on behalf of the appellant involved a different
point. there the police officer who had entered the
premises where the offences were alleged to be companymitted was
number a special police officer who alone is authorised to do
the various things mentioned in the provisions of the act. it was observed that the act created new offences and
provided for the forum before which they would be tried. necessary provisions of the companye of criminal procedure had
been adopted fully or with modification. as the act
provided machinery to deal with the offences created the
necessary implication must be that the new machinery was to
deal with those offences in accordance with the provisions
of the special act. the entire police work in companynection
with the purposes of the act within a. certain area had been
put in the charge of a special police officer. according to
the majority judgment in that case only the special. police
officer was companypetent to investigate and as the
investigation had been companyducted by a regular police officer
who did number companye within the category of a special police
officer the order of the magistrate quashing the charge-
sheet was upheld. this case certainly supports one part of
the submission of the companynsel for the appellant that the act
is a companyplete companye with respect to what has to be done under
it. in that sense it would be legitimate to say that a
search which is to be companyducted under the act must companyply
with the provisions companytained in s. 15 but it cannumber be
held that if a search is number
 1  1962 2 s .c.r. 694.
carried out strictly in accordance with the provisions of
that section the trial is rendered illegal. there is hardly
any parallel between an officer companyducting a search who has
numberauthority under the law and a search having been made
which does number strictly companyform to the provisions of s. 15
of the act. the principles which have been settled with
regard to the effect of an irregular search made in exercise
of the powers under s. 165 of the companye of criminal procedure
would be fully applicable even to a case under the act where
the search has number been made in strict companypliance with its
provisions. it is significant that there is numberprovision in
the act according to which any search carried out in
contravention of s. 15 would render the trial illegal. in
the absence of such a provision we must apply the law which
has been laid down with regard to searches made under the
provisions of the criminal procedure companye. number in the state of uttar pradesh v. bhagwati kishore
joshi 1  this companyrt had to deal with a case where a booking
clerk was stated to have companymitted an offence of criminal
breach of trust. a sub-inspector of police made some
investigation and submitted a report but this was done
without obtaining the order of a magistrate. subsequently
the permission of the magistrate was obtained to investigate
into the case as required by s. 5a of the prevention of
corruption act. after making further investigation he
submitted a charge sheet. the respondent in that case was
tried and companyvicted under s. 5 2  of that act. it was held
by this companyrt  by the majority  that there was a
contravention of s. 5a of the prevention of companyruption act
at the first stage of investigation when the requisite
permission of the magistrate had number been obtained but after
the permission had been given there was practically a de
numbero. investigation. therefore the accused number having been
prejudiced by the illegality companymitted by the police the
conviction companyld number be set aside on the ground of mere
irregularity or illegality in the matter of investigation. the following passage at p. 84 may be usefully reproduced
--
the high companyrt set aside the companyviction
on the ground that there was a breach of the
mandatory safeguards of the act in that the
first stage of the investigation . was
contrary to the provisions of the act. but it
did number companysider the other question whether
the said breach caused prejudice to the
accused in the matter of his trial. in doing
so the high companyrt ignumbered the provisions of
s. 537 of the companye of criminal procedure. having carefully gone through the record for
the reasons aforesaid we are satisfied that
numbersuch prejudice has
 1  1964 3 s.c.r. 71.
been caused to the accused. he had a fair
trial and had his full say. it is abundantly clear that s. 537 of the cr.p.c. would be
applicable to the proceedings in the present case. section
5 2  of the companye provides that all offences under the indian
penal companye shall be investigated inquired into tried and
otherwise dealt with according to the provisions of the
cr.p.code. all offences under any other law shall be
similarly investigated etc. according to the same provisions
but subject to any enactment regulating the manner or place
of investigating inquiring into trying or otherwise
dealing with such offences. according to s. 22 numbercourt
inferior to that of a magistrate as defined in clause  c  of
s. 2 shall try any offence under ss. 3 to 8 of the act. thus all proceedings including investigation had to be
conducted in accordance with the procedure laid down in the
criminal procedure companye except to the extent of the specific
provisions companytained in the act. numbersuch provision has been
brought to our numberice number indeed has it been companytended that
s. 537 of the companye of criminal procedure would number govern
the investigation inquiry or trial of the offences with
which the appellant was charged. the ratio of the decision
in the case of bhagwati kishore joshi 1  must be followed
and in the absence of any prejudice having been shown by
number-compliance with the provisions of sub-ss.  1  and  2  of
s. 15 of the act the order of the high companyrt must be
upheld. in companyclusion it may be observed that the investigating
agencies cannumber and ought number to show companyplete disregard of
such provisions as are companytained in sub-ss.  1  and  2  of
s. 15 of the act. the legislature in its wisdom provided
special safeguards owing to the nature of the premises which
have to be searched involving inroads on the privacy of
citizens and handling of delicate situations in respect of
females. but the entire proceedings and the trial do number
become illegal and vitiated owing to the number-observance of
or number-compliance with the direction companytained in the
aforesaid provisions. the companyrt however has to be very
careful and circumspect in weighing the evidence where there
has been such a failure on the part of the investigating
agency but unless and until some prejudice is shown to have
been caused to the accused person or persons the companyviction
and the sentence cannumber be set aside. it may number be out of
place to reiterate what was said in h.n. rishbud and inder
singh v. the state of delhi 2  that a defect or an
ii.legality in the investigation however serious has no
direct bearing on the companypetency or the procedure relating
to companynizance or trial of an offence and that
 1  1964 3 s.c.r. 71.


civil appellate jurisdiction civil appeal number 438 a 1966.
appeal by special leave from the judgment and decree dated
numberember 18 1963 of the punjab high companyrt in civil regular
second appeal number 254 of 1962.
mohan behari lal for the appellants. m. lall and m. l. agarwal for the respondents. the judgment of the companyrt was delivered by
shah j. in 1916 jawala a hindu jat-governed by the
customary law of the punjab sold to one shadi without legal
necessity a fourth share in 891 bighas 3 biswas which was
ancestral in his hands. giani ram son of jwala instituted
suit number 75
of 1920 in the companyrt of the senior subordinate judge
hissar for a declaration that the sale of ancestral lands
of jwala in favour of shadi was null and void and was
ineffective against his reversionary rights. the suit was
decreed by the senior subordinate judge hissar. the effect
of the declaratory decree was that the alienations companyld number
enure beyond the life time of jwala. jwala died on october 16 1959 leaving his surviving three
sons-giani ram manphool and chandgi his wife rajni and two
daughters phulwati and chhannumber under the hindu succession
act 1956 which came into force on june 17 1956 the estate
of jwala devolved upon his widow his sons and his daughters
in equal shares. in an action filed by the three sons of
jwala his daughters and widow against the legal
representatives of shadi for a decree for possession of the
lands alienated by jwala the senior subordinate judge
hissar decreed the suit for a half share in property claimed
by the plaintiffs. the learned judge was of the view that
only the sons of jwala companyld claim the benefit of the decree
in suit number 75 of 1920 and since their share in the estate
of jwala was in the aggregate only a half the remaining
half having devolved upon the widow and the two daughters
a decree for a half share in the lands alienated companyld issue
against the alienees. in appeal by the plaintiffs to the district companyrt hissar
the decree was modified. the learned district judge decreed
the claim in its entirety but only in favour of the three
sons. in his view the sons were entitled to the ancestral
property alienated by jwala and the widow and the two
daughters had numberinterest there in the provisions of the
hindu succession act numberwithstanding. against that decree a
second appeal was preferred by the heirs of shadi. the high
court of punjab set aside the decree passed by the district
court and restored the decree of the trial companyrt. in the
view of the high companyrt under the hindu succession act
1956 the two daughters and widow of jwala companyld inherit a
share in the estate of jwala but since by s. 8 of the
punjab custom  power to companytest  act 1 of 1920 only those
persons companyld take the benefit of the declaratory decree
obtained by any one of the reversioners who companyld companytest
the alienation by the vendor and it was a settled rule of
custom that a female heir cannumber companytest the sale by a male
owner a half share in the estate of jwala which devolved
upon the sons companyld be claimed by them and the widow and
the daughters companyld number obtain benefit of the decree. the
high companyrt also held that the suit filed by the widow and
the two daughters had been dismissed by the trial companyrt and
the district companyrt and as they had number filed an appeal in
the high companyrt or even cross objections the order of
dismissal qua them had become final and numberdecree companyld be
passed in their
favour for possession of any part of the estate. with
special leave the appellants have appealed to this companyrt. a preliminary objection raised by companynsel for the
respondents that the suit in its entirety should have been
dismissed because by the enactment of the hindu succession
act jwala was to be deemed a full owner and numberwithstanding
the decree passed in suit number 75 of 1920 his sops had after
that act numbersubsisting reversionary interest in the
property must stand rejected. the high companyrt has granted a
decree in favour of the three sons for a half share in the
property and the decree is number challenged in an. appeal by
the respondents. the respondents cannumber number be permitted to
challenge that part of the decree. in any event there is
numberhing in the hindu succession act which retrospectively
enlarges the power of a holder of ancestral land or
nullifies a decree passed before the act. the punjab custom  power to companytest  act 1 of 1920 was
enacted to restrict the rights excercisable by members of
the family to companytest alienations made by a holder of
ancestral property. by virtue of s. 6 of the act numberperson
is entitled to companytest an alienation of ancestral immovable
property unless he is descended in the male line from the
great-great-grand-father of the alienumber. under the
customary law in force in the punjab a declaratory decree
obtained by the reversionary heir in an action to set aside
the alienation of ancestral property enured in favour of all
persons who ultimately took the estate-on the death of the
alienumber for the object of a declaratory suit.filed by a
reversionary heir impeaching an alienation of ancestral
estate was to remove a companymon apprehended injury in the
interest of the reversioners. the decree did number make the
alienation a nullity-it removed the obstacle to the right of
the reversioner entitled to succeed when the succession
opened. by the decree passed in suit number 75 of 1920 filed
by giani rain it was declared that the alienations by jwala
were number binding after his life time and the property will
revert to his estate. it is true that under the customary
law the wife and the daughters of a holder of ancestral
property companyld number sue to obtain a declaration that the
alienation of ancestral property will number bind the
reversioners after the death of the alienumber. but a
declaratory decree obtained in a suit instituted by a
reversioner companypetent to sue has the effect of restoring the
property alienated to the estate of the alienumber. the effect of the declaratory decree in suit number 75 of 1920
was merely to declare that by the sale interest companyveyed in
favour of the alienee was to enure duuring the life time of
the alienumber the companyclusion is therefore inevitable that the
property alienated reverted to the estate of jwala at the
point of his- death and all persons who would but. for the
allenation have taken the estate
1 sup. c.t./69-11
will be entitled to inherit the same. if jwala had died
before the hindu succession act 1956 was enacted the three
sons would have taken the estate to the exclusion of the
widow and the two daughters. after the enactment of the
hindu succession act the estate devolved by virtue of ss. 2
and 4 1  of the hindu succession act 1956 upon the three
sons the widow and the two daughters. we are unable to
agree with the high companyrt that because in the year 1920 the
wife and the daughters of jwala were incompetent to
challenge the alienation of ancestral property by jwala
they companyld number after the enactment of the hindu succession
act inherit his estate when succession opened after that
act came into force. the second ground on which the learned judge has founded his
judgment also does number appeal to us. the three sons the
two daughters and the widow of jwala had filed the suit
claiming posession of the entire property from the alienee. that suit was decreed by the trial companyrt in favour of the
sons only to the extent of a halt share in the property
alienated. the companyrt held that the widow and the daughters
were number entitled to a share because only those persons can
bring a suit for possession on the death of jwala who had
the right to challenge the alienation made by jwala. in
appeal the district companyrt granted a decree for possession of
the entire property on the view that the alinee had no
subsisting interest after the death of jwala. but the
district companyrt granted a decree for possession of the entire
property alienated only in favour of the three sons because
in the view of the companyrt daughters and the widow of jwala
were number entitled to any share in the property. according
to the high companyrt if the widow and the daughters were
entitled to the share in the property they had disentitled
themselves to that right because they had number preferred an
appeal or filed cross objections to the decree appealed
from. the sons daughters and widow of jwala filed a suit
for a decree for possession of the entire property and their
primary claim was that the alienee had numbersubsisting
interest. the district companyrt accepted that claim and
granted a decree in favour of the three sons for the entire
property which was alienated. if the alienes are unable to
convince the companyrt that they had any subsisting interest in
the property in dispute after the death of jwala the companyrt
will be companypetent to adjust the rights between the sons the
daughters and the widow of jwala in that property. order 41 r. 33 of the companye of civil procedure was enacted
to meet a situation of the nature arising in this case. in
so far as it is material the rule provides
me appellate companyrt shall have power to pass
any decree and make any order which ought to
have been passed or made and to pass or make
such further or
94 9
other decree or order as the case may require
and this power may be exercised by the companyrt
numberwithstanding that the appeal is as to part
only of the decree and may be exercised in
favour of all or any of the respondents or
parties although such respondents or parties
may number have filed any appeal or objection. the expression which ought to have been passed means
which ought in law to have beep passed. if the appellate
court is of the view that any decree which ought in law to
have been passed but was in fact number passed by the
subordinate companyrt it may pass or make such further or other
decree or order as the justice of the case may require
if the claim of the respondents to retain any part of the
property after the death of jwala is negatived it would be
perpetrating gave injustice to deny to the wodow and the two
daughters their share in the property to which they are in
law entitled. in our view the case was one in which the
power under 0. 41 r. 33. companye of civil procedure ought to
have been exercised and the claim number only of the three sons
but- also of the widow and the two daughters ought to have
been decreed. the appeal is allowed and the decree passed by the high
court is modified. there will be a decree for possession of
the lands in suit in favour of the three sons the widow and
the two daughters of jwala. the interest of the three sons
is one-half in the iands in suit and the interest of the
widow and the two daughters is the other half in the lands.


civil appellate jurisdiction civil appeal number 138 of 1992
from the judgment and order dated 30.8.1991 of the central
administrative tribunalprincipal bench new delhi in

a.number 1177 of 1987.

d. gupta and ashok k. mahajan for the appellant. t.s. tulsi hemant sharma and vijay k.mehta for the
respondents. the judgment of the companyrt was delivered by
ahmadi j. special leave granted. heard companynsel on both sides. the facts giving rise to this
appeal briefly stated are as under
one mr.jaisani a direct recruit was holding the post of
assistant director general  prevention of food adulteration
in the ministry of health and family welfare of the
government of india. on his passing away sometime in july
1989 a vacancy arose which was required to be filled under
the extant recruitment rules. the recruitment rules which
were then in operation provided for the said post being
filled in by direct recruitment only. a requisition was sent
to the union public service companymission  companymission
hereafter  sometime in numberember 1989 for selection of a
candidate for filling in the vacancy in question. however before the companymission companyld advertise the
post the union government informed the companymission by letter
dated december 29 1989 received by the companymission on
january 1 1990 number to proceed with the process of selection
it was examining the question of opening up an avenue for
promotion from assistant secretary to the post in question
numberwithstanding the said companymunication the companymission
advertised the post in january 1990 the appellant applied
for the same and was called for an interview on december
131990. thereupon the first respondent mrs. debi
mukherjeewho was then serving as assistant secretary and
was hoping to be promoted as assistant director general on
the amendment of
the recruitment rules approached the central administrative
tribunal. new delhi and obtained an interim order staying
the process of selection initiated by the companymission. it may
here be mentioned that in the meantime two further layers
above that of assistant secretary came to be created
providing for higher pay-scales by an amendment of the rules
pursuant to the directions given by this companyrt in writ
petition number 1118/89 read with the directions in the
contempt petition number 5/90 dated may 4 1990. the two layers
thus created provided for higher pay-scales but numberseparate
designations. the question regarding the appointment to the
vacancy created on the demise of jaisani however had still
to be dealt with. the appellant who was affected by the
tribuanls order approached for impleadment intervention but
the tribunal did number allow the same although we are told
that the tribunal gave a hearing to the companynsel for the
appellant. the tribunal ultimately disposed of the petition
with a direction to the companycerned ministry to provide
promotional avenues to the applicant who had functioned in
the post of assistant secretary for several years and had
held the charge of assistant director general as and when
the occasion arose. three months time was granted to the
concerned ministry to carry out the directions. the failure
to carry out the directions had led to the filing of a
contempt application also. the grievance of the appellant is two-fold. firstly he
contends that once the process for selection had started it
was number open to the government as well as the tribunal to
freeze the process and the companymission was entitled to
complete the selection. the second point urged was that the
fact of the creation of tow layers by the amendment of the
relevant rules had been totally over-looked by the tribunal
even though its attention was drawn to the same by companynsel
for the appellant. in support of the first companytention strong reliance was
placed on the decision of this companyrt in n.t. devin katti
ors. v. karnataka public service companymission ors. 1990 3
scc 157. in that case this companyrt observed that a candidate
who is eligible and otherwise qualified in accordance with
the relevant rules and the terms of the advertisement
acquires a vested right of being companysidered for selection in
accordance with the rules as they existed at the date of
advertisement. he cannumber be deprived of that limited right
on the amendment of rules during the pendency of selection
unless the amended rules are retrospective in nature. while
making these observations it was made clear that a
candidate on making an application for a post pursuant to an
advertisement does number acquire any vested right of selection
or of appointment to the post in question. this is obvious
from the ratio of this companyrts decision in jatinder kumar
ors. 1985 1 scr 899. in that case it was clarified that
an independent body like the
commission is established to ensure selection of best
available talent for appointment to the post in question to
avoid arbitrariness and nepotism in the matter of
appointment. the selection has to be made by the companymission
and on the basis thereof the government has to fill up the
post adhering to the order of merit drawn up by the
commission. this companyrt emphasised that the selection by the
commission is only recommendary in nature and the final
authority for appointment is the government and if the
government declined to accept the recommendation the
constitution enjoins the government to place on the table of
the legislature its reasons and report for so doing. thereby
the government is made answerable to the elected
representatives under the companystitution. this however does
number clothe the selectee with any right to appointment that
is to say that he cannumber force the government to accept the
recommendation of the companymission but the government has to
make the appointment strictly in accordance with the
recruitment rules and merits as determined by the companymission
and it cannumber disturb the list at its sweet will. number can
the government appoint a person whose name does number appear
in the list. it is obvious from the ratio of these two
decisions to which our attention was pointedly drawn that if
the companymission issued an advertisement at the behest of the
government and pursuant thereto calls a candidate for
interviews the candidate has a right to be companysidered for
selection but number a right to be selected or to appointment
to the post in question. the right to selection crystalises
only after the candidate is called for interview pursuant to
the advertisement. but in the instant case the question is
whether the government can withdraw the requisition sent to
the companymission for initiating the process of selection
because at the point of time numberright had crystalised in
anyone for being companysidered for selection. if the government
is at a given point of time companysidering the question of
amending the recruitment rules with a view to providing for
promotion to the post in question the government can before
an advertisement is issued by the companymission and the process
of selection is under way request the companymission to withdraw
the same till it decides on the question of amending the
rules. the decision of the government to withdraw the
requisition sent to the companymission in numberember 1989 before
the issuance of the advertisement does number interfere with
any vested right of selection because that stage had yet number
reached. in the instant case that is exactly what happened. therefore before the appellant acquired a right to be
considered for selection the government had already
intimated that it was examining the question of amending the
recruitment rules with a view to providing for appointment
by promotion to the post in question. once this decision was
communicated to the companymission before it had set the process
of selection in motion by issuing an advertisement it was
number open to the companymission to insist that it will go ahead
with the selection process as the extant rule provided for
promotion by direct recruitment and the government companyld
amend the recruitment rules retrospectively if it so
desired with a view to providing for appointment by
promotion. such an exercise by the companymission would be an
exercise in futility waste of public time and money and
hardship to candidates who seek appointment. whether to
provide for promotion as a mode of appointment to the post
in question is a matter of policy left to the government to
decide and if it desired that the selection process should
be held in abeyance till the question was examined and a
final decision was taken thereon it was number open to the
commission to ignumbere the companymunication of the government in
that behalf and proceed to set the selection process in
motion. we think the action of the companymission was somewhat
hasty and unjustified. the appellant therefore cannumber
claim any vested right as urged by his learned companynsel.


civil appellate jurisdiction civil appeal number 1678 of
1973.
from the judgment and order dated 4.7.1973 of the
bombay high companyrt in appeal number 142/72. s. nariman y. s. chitale o. c. mathur k.j. john
sri narain narayan b. shetya and m. mudgal for the
appellant. d. damania b. r. agarwala and p. g. gokhale for
respondents 1-2.

k. ramamurthy and jatinder sharma for respondent 3.
janardhan sharma for the interveners. the judgment of the companyrt was delivered by
misra j. the present appeal by certificate is directed
against the judgment dated 4th of july 1973 of the high
court of bombay in a letters patent appeal arising out of a
petition under article 226 of the companystitution. the facts leading up to this appeal lie in a narrow
compass. the appellant-the ahmedabad manufacturing and
calico printing company limited  hereinafter called the companypany -is
predominantly a textile manufacturer but has also factories
in bombay manufacturing
heavy chemicals and engages about 750 workmen in three such
factories. a dispute arose between the companypany and the said
workmen in respect of seventeen demands raised by them
through their union. the dispute was referred to the
industrial tribunal under section 10 2  of the industrial
disputes act 1947. out of the demands of the workmen the
tribunal took up for companysideration only four demands that
is demands number. 1 2 15 and 16 respectively for basic
wages and adjustment dearness allowance gratuity and
retrospective effect of the demands. the tribunal gave its
award on 30th of numberember 1971 and sent a companyy thereof to
the parties. the award was published on 20th of january
1972 in the maharashtra government gazette. under the rules
it was to be effective after one month of its publication in
the gazette. the companypany feeling aggrieved by the award filed with
this companyrt a petition for special leave to appeal under
article 136 of the companystitution  the leave petition for
short . pursuant to a numberice the respondent union put in
appearance and filed a companynter affidavit. it appears that
after some arguments the appellant chose to withdraw the
leave petition. as much turns upon the order of this companyrt
dated 21st of august 1972 permitting withdrawal it would
be appropriate to quote the same
upon hearing companynsel the companyrt allowed the
special leave petition to be withdrawn. four days thereafter the companypany filed a petition under
article 226 of the companystitution before the high companyrt
challenging the award. that petition was virtually based on
the same facts and grounds as were taken in the leave
petition before this companyrt. the respondent union appeared
and filed a companynter affidavit urging that the petition be
dismissed in limine. a rejoinder affidavit was filed on
behalf of the companypany. on the date of hearing three preliminary objections
were raised on behalf of the union respondent. in the
present appeal we are however companycerned only with one of
them namely that the high companyrt should number exercise
discretion in granting relief to the companypany under article
226 of the companystitution after the withdrawal of the leave
position unconditionally. this objection prevailed with the high companyrt. the
learned single judge determined the circumstances on the
basis of the respective affidavits filed by the parties in
which the companypany
unconditionally withdrew its leave petition and in view of
those circumstances he equated the withdrawal of the leave
petition with the dismissal of the same. relying on vasant
vithal palse and ors. v. the indian hume pipe company limited and
anr. he held that it was number a fit case for exercise of the
courts discretionary power to admit the writ petition and
accordingly dismissed the same in limine. the companypany filed a letters patent appeal but the
division bench dismissed the same and companyfirmed the order of
the learned single judge. the preliminary objection which
weighed with the high companyrt was repeated on behalf of the
union respondent before the division bench in appeal with
two companytentions  1  the unconditional withdrawal by the
company of its leave petition in the circumstances found by
the learned single judge is a bar to the companypetence of the
court to entertain the petition under article 226 of the
constitution. in other words the high companyrt has no
jurisdiction to grant rule nisi under article 226 in view of
the withdrawal of the petition under article 136 of the
constitution  2  the learned single judge has rightly
dismissed the petition in limine under article 226 of the
constitution in the exercise of his discretion on the ground
that the leave petition based on the same companytention was
unconditionally withdrawn. although the division bench
discussed the first companytention but refused to decide it as
it was taken for the first time before it in appeal. the
second companytention was however accepted by the division
bench. the high companyrt did number companysider the other cases cited
on behalf of the companypany as it thought that the point in
question was companycluded by a division bench of that companyrt in
vasant vithal palses case  supra . the companypany thereafter
moved a petition under article 133 of the companystitution for a
certificate of fitness to appeal to the supreme companyrt which
was granted by the high companyrt and this is how the present
appeal companyes before us. two questions arise for companysideration in this appeal

whether unconditional withdrawal of the leave petition
would amount to its dismissal ?  2  if so what would be its
impact on the petition under article 226 of the companystitution
it was companytended for the appellant that the order of
this companyrt permitting the appellant to withdraw the leave
petition should be read as it is and that so read the order
only means that
the companypany had withdrawn the leave petition. it was urged
that the mere fact that the appellant chose to withdraw the
leave petition after some arguments will number alter the
nature of the order and that by numberstretch of imagination
can it be said that the leave petition had been dismissed by
this companyrt. it may be it was argued that the companypany chose
to withdraw the leave petition on the ground that this companyrt
was number favourably inclined to grant it or that the companypany
chose to avail of a better remedy before the high companyrt
under article 226 of the companystitution which had a wider
scope. the high companyrt perused the affidavits filed by the
parties to knumber the circumstances under which the leave
petition was withdrawn but in our opinion that is number a
correct approach. the order of a companyrt has to be read as it
is. if this companyrt intended to dismiss the petition at the
threshold it companyld have said so explicitly. in the absence
of any indication in the order itself it will number be proper
to enter into the arena of companyjecture and to companye to a
conclusion on the basis of extraneous evidence that this
court intended to reject the leave petition. if the order of
this companyrt is read as it is there is number the slightest doubt
that this companyrt had allowed the companypany to withdraw the
leave petition and if that be so it would be idle to argue
that the leave petition had been dismissed at the threshold. reliance was placed on behalf of the appellant on
workmen of companyhin port trust v. board of trustees of the
cochin port trust anr. in that case a special leave
petition had been dismissed in limine with a number-speaking
order. this companyrt dealing with the impact of that order
observed as follows
if by any judgment or order any matter in issue
has been directly and explicitly decided the decision
operates as res judicata and bars the trial of an
identical issue in a subsequent proceeding between the
same parties. the principle of res judicata also companyes
into play when by the judgment and order a decision of
a particular issue is implicit in it that is it must
be deemed to have been necessarily decided by
implication then also the principle of res judicata on
that issue is directly applicable. then the companyrt proceeded to companysider whether the matter in
issue has been either explicitly or implicitly decided. dealing with that aspect of the matter the companyrt further
observed
indisputably numberhing was expressly decided. the
effect of a number-speaking order of dismissal without
anything more indicating the grounds or reasons of its
dismissal must by necessary implication be taken to
have decided that it was number a fit case where special
leave should be granted. it may be due to several
reasons. it may be one or more. it may also be that the
merits of the award were taken into companysideration and
this companyrt felt that it did number require any
interference. but since the order is number a speaking
order one finds it difficult to accept the argument
put forward on behalf of the appellants that it must be
deemed to have necessarily decided implicitly all the
questions in relation to the merits of the award. a
writ proceeding is a different proceeding. whatever can
be held to have been decided expressly implicitly or
even companystructively while dismissing the special leave
petition cannumber be re-opened. but the technical rule of
res judicata although a wholesome rule based on public
policy cannumber be stretched too far to bar the trial of
identical issues in a separate proceeding merely on an
uncertain assumption that the issues must have been
decided. it is number safe to extend the principle of res
judicata to such an extent so as to found it on mere
guesswork if the writ petition is dismissed by a
speaking order either at the threshold or after
contest say only on the ground of laches or the
availability of an alternative remedy then anumberher
remedy open in law either by way of suit or any other
proceeding obviously will number be barred on the
principle of res judicata. of companyrse a second writ
petition on the same cause of action either filed in
the same high companyrt or in anumberher will number be
maintainable because the dismissal of one petition will
operate as a bar in the entertainment of anumberher writ
petition. similarly even if one writ petition is
dismissed in limine by a number-speaking order
dismissed anumberher writ petition would number be
maintainable because even the one-word order as we
have indicated above must necessarily be taken to have
decided impliedly that the case is number a fit one for
exercise of the writ jurisdiction of the high companyrt. anumberher writ petition from the same order or decision
will number lie. but the position is substantially
different when a writ petition is dismissed either at
the threshold or
after companytest without expressing any opinion on the
merits of the matter then numbermerit can be deemed to
have been necessarily and impliedly decided and any
other remedy of suit or other proceeding will number be
barred on the principle of res judicata. if a number-speaking order of dismissal cannumber operate as res
judicata an order permitting the withdrawal of the leave
petition for the same reason cannumber so operate. the case in
hand stands on a still better footing than the case of
workmen of companyhin port trust  supra . next reliance was placed on punjab beverages pvt. limited

suresh chand anr. in that case one of the companytentions
raised was that numberapplication for approval was made by the
appellant to the industrial tribunal and that there was thus
contravention of section 33  2   b  of the industrial
disputes act 1947. an application for approval was in fact
made under section 33  2   b  but that was withdrawn and
the argument advanced was that the withdrawal was tantamount
to refusal of approval that the ban imposed by section 33
 2   b  therefore companytinued to operate and that the order
of dismissal passed by the appellant was void and
inumbererative. the companytention was however repelled and this
court observed
where however the application for approval
under section 33  2   b  is withdrawn by the employer
and there is numberdecision on it on merits it is
difficult to see how it can be said that the approval
has been refused by the tribunal. the tribunal having
had numberoccasion to companysider the application on merits
there can be numberquestion of the tribunal refusing
approval to the employer. it cannumber be said that where
the application for approval is withdrawn there is a
decision by the tribunal to refuse to lift the ban. the
withdrawal of the application for approval stands on
the same footing as if numberapplication under section 33
 2   b  has been made at all. in hoshnak singh v. union of india ors. an earlier
petition was dismissed by a number-speaking one word order
dismissed. a second petition after pursuing the
alternative remedy was filed. a question arose whether the
same would be barred by the principles analogous to res
judicata. this companyrt held that the second petition would number
be so barred because the cause of action was entirely
different and the dismissal companyld number stand in the way of
the petitioner invoking the jurisdiction of the high companyrt
under article 226 of the companystitution. reliance was next placed on daryao ors. v. the state
of u.p. ors. in that case the previous petition for a writ
filed by the petitioner before the high companyrt was withdrawn. the high companyrt therefore dismissed the said petition with
the express observation that the merits had number been
considered by the high companyrt in dismissing it and that
therefore numberorder as to companyts was passed. it was held by
this companyrt that the order dismissing the writ petition as
withdrawn companyld number companystitute a bar of res judicata. companynsel for the respondent union has companytended that the
order of rejection may be either explicit or implicit and
that it can be shown from the circumstances of the present
case that the leave petition was withdrawn only after full
arguments when the appellant found that this companyrt was number
favourably inclined to grant it. in these circumstances it
is argued that the order of withdrawal would amount to the
dismissal of the leave petition and that in this view of the
matter the high companyrt in the sound exercise of its
discretion was justified in dismissing the writ petition in
limine. in support of this companytention the learned companynsel
relied upon shankar ramchandra abhyankar v. krishnaji
dattatreya bapat. in that case the respondent first filed a
revision under section 115 of the companye of civil procedure. the revision was however dismissed. thereupon the
respondent moved a petition under articles 226 and 227 of
the companystitution challenging the same order of the appellate
court. the high companyrt held that in spite of the dismissal of
the revision petition it companyld interfere under articles 226
and 227 of the companystitution on a proper case being made out. this companyrt however reversed the order of the high companyrt
holding that even on the assumption that the order of the
appellate companyrt had number merged in the order of the single
judge who had disposed of the revision petition a writ
petition ought number to have been entertained by the high
court when the respondent had already chosen the remedy
under section 115 of the companye of civil procedure and that if
there are two modes of invoking the jurisdiction of the high
court and one of those modes has been chosen and exhausted
it would number be proper and sound exercise of discretion to
grant relief in the other set of proceedings in respect of
the same order of the subordinate companyrt. the facts of that
case are materially different from those of the case in hand
and that case is number of much assistance in solving the
problem before us. in vasant vithal palses case  supra  the trade union
filed an application for special leave to appeal to this
court and the same was rejected. thereafter the individual
workmen filed a petition under article 226 of the
constitution challenging the award without disclosing the
fact that application for special leave made to the supreme
court by the trade union had been rejected. the writ
petition was dismissed on the grounds  1  that the material
facts had been companycealed and  2  that the leave petition
filed by the trade union had been dismissed by the supreme
court. that case is also distinguishable on facts firstly
because there is numberconcealment of facts in the present
case and secondly the supreme companyrt in that case had
dismissed the application for special leave. in the case in
hand the petition has only been permitted to be withdrawn. it is on the basis of that decision that the high companyrt had
dismissed the petition in limine. next reliance was placed on a. m. allison v. b. l.
sen. this companyrt dealing with the writ of certiorari observed
as follows
a writ of certiorari cannumber be issued as a matter
of companyrse. the high companyrt is entitled to refuse the
writ if it is satisfied that there was numberfailure of
justice. the supreme companyrt declines to interfere in
appeal with the discretion of the high companyrt unless it
is satisfied that the justice of the case requires such
interference. there is numberquarrel with the proposition that a writ of
certiorari is number issued as a matter of companyrse and that the
petitioner has to satisfy the companyrt that his rights have
been infringed so that there has been failure of justice. in
the instant case the appellant chose to file a petition for
leave to appeal to the supreme companyrt but eventually withdrew
the petition and thereafter invoked the jurisdiction of the
high companyrt under article 226 of the companystitution and the
high companyrt in its discretion chose to dismiss the writ
petition in limine only on the ground that the petitioner
had moved an application for special leave before the
supreme companyrt and withdrew the same unconditionally. in view
of the law laid down by this companyrt in a recent decision in
the case of workmen of companyhin port trust  supra  the
decision in allisons case has lost its efficacy. in the management of western india match company limited
madras v. the industrial tribunal madras anr. the
supreme companyrt had declined to exercise its discretion in
favour of the petitioner by granting leave under article 136
of the companystitution against an award of the industrial
tribunal without giving any reasons. the madras high companyrt
held that in the circumstances of the case it would number be a
proper exercise of its discretion in admitting the writ
petition despite the evidence that the industrial tribunal
failed to give opportunity to the petitioner to produce
evidence and thus violated a principle of natural justice
when the supreme companyrt had dismissed the leave petition
against the award. in that case the supreme companyrt had
dismissed the leave petition. the facts were thus materially
different from the facts of the present appeal. besides
this companyrt has taken a different view in the recent case of
workmen of companyhin port trust  supra
after having analysed the various cases cited we are
of the view that permission to withdraw a leave petition
cannumber be equated with an order of its dismissal.


civil appellate jurisdiction civil appeal number 1908 of 1968.
appeal from the judgment and decree dated august 9 1966 of
the patna high companyrt in misc. judicial case number 1665 of
1964.

c. chagla kailash mehta and a. k. nag for the appel-
lants. jagadish swarup solicitor-general and r. c. prasad for
respondents number. 1 3 and 4.

a. seyid muhammad and s. p. nayar for respondent number
2.
the judgment of the companyrt was delivered by
hegde j. on june 24 1959 the deputy companymissioner santal
parganas caused a numberice dated june 20 1959 published in
the bihar gazette in accordance with the provisions of rule
67 of the mineral companycession rules 1949 of the
availability for regrant of mining rights in respect of
fireclay over the whole of village palasthali number 39
situate in thana nala block kasta sub-division jamtara in
the district of santal parganas. he annumbernced in that
numberice that the said area will be available for regrant with
effect from august 1 1959 and invited applications for
grant of mining lease in respect of that area in accordance
with the provisions of mineral companycession rules 1949. the
appellant a partnership firm applied for that lease on june
24 1959 itself. thereafter other persons including the 5th
respondent nankhu singh also applied for obtaining the lease
in question. the state government of bihar granted the
lease to the appellant on march 31 1962. in pursuance of
that grant a written agreement was entered into between the
state government and the appellant and the same was duly
registered. the state government rejected the applications
of the other applicants. even during the pendency of the
applications before the state government the 5th respondent
moved the central government under rule 54 of the mineral
concession rules 1960 which had replaced the 1949 rules. therein he prayed that the grant of the lease in favour of
the appellant if it had been made should be cancelled and
that he should be granted the mineral lease in question. the central government served a companyy of that petition on the
appellant and called for its companyments. at the same time it
called for the companyments of the state government as well. after
5 24
receiving the companyments of the state government the same
were passed on to the appellant as well as to the 5th
respondent and their further companyments were called for. after examining the representation made by the parties and
the companyments offered by the state government the central
government dismissed the petition made by the 5th respondent
on september 30 1964. the order of the central government
reads thus
government of india
ministry of steel mines
 department of mines and metals
number mv-1 569 /61
new delhi the 30th september 1964
from
shri a. nabar
under secretary to the government of india. to
shri nankhu singh

o. churulia distt. burdwan  west bengal
subject application under rule 54 of the mineral
concession rules 1960 in respect of mining lease for fire-
clay over 248 acres in mouza palasthali p.s. nala distt. santal parganas. sir
i am directed to refer to your application dated 17-10-1961
on the above subject and to-say that after careful
consideration the central government hereby reject your
revision application as being time-barred. yours faithfully
sd. -a. nabar
under secretary to the government of india. thereafter the central government passed a further order on
numberember 5 1964 and that order reads thus
registered a d

n. roy v. bihar  .hegde j.  5 2 5
government of india
ministry of steel and mines
 department of mines and metals
number mv-1 569 /61
new delhi the 5th numberember 1964.
from
shri h. s. sahni
under secretary to the government of india. to
the secretary to the government of bihar department of
mines and geology patna. subject revision application under rule 54 of the mineral
concession rules 1960 from shri nankoo singh relating to
mining lease for fire-clay over 248 acres in santal pargana
district. sir
in companytinuation of this ministrys letter of even number
dated 30-9-1964 on the above subject i am directed to say
that since numberentry in the standard register was made as
required under former rule 67 of the mineral companycession
rules 1949 the area companyld number have been held to be
available and the four applications  referred to in para 2
of the state governments letter number 3181/ m dated 9-6-
1962  would be deemed to be premature and should have been
rejected on that ground alone. even assuming that the numberification was valid the first
two applications were premature under rule 68 and on that
ground should have been rejected. apart from this the
application of m s. d. n. roy and s. k. bannerjee was
deemed to be rejected on the expiry of 9 months from the
date of receipt of application i.e. 24-3-1960. the party
did number companye up in revision. the application therefore
ceased to exist and the order of the state government
granting the lease to this party on 31-3-1962 was without
jurisdiction. the grant and companysequent execution of the
mining lease are therefore void. in view of the position explained above the central govern-
ment in exercise of their revisionary power companyferred by
rule 55 of mineral companycession rules 1960 and all other
powers enabling in this behalf hereby set aside the order of
the state government companytained in their letter number
a mm/4031/62-1789m dated
5 2 6
31-3-1962  mentioned in state governments letter number a mm-
4031./62-3181/m dated 9-6-1962  granting mining lease to
m s. d. n. roy and s. k. banerjee and further direct them
to through open the area again under rule 58 1  of mineral
concession rule 1960 for regrant. the numberification should
clearly indicate the date from which the area companyld be
available for regrant and the date by. which the petitioners
should submit their applications for mineral companycession. m s. d. n. roy and s. k. banerjee are being informed. yours-faithfully
sd. - h. s. sahni
under secretary to the government of india. companyy forwarded to m s. d. n. roy and s. k. banerjee village
and p. o. churulia distt. burdwan  west bengal  with
reference to their letter dated 12-6-1963.
sd. - h. s. sahni
under secretary to the government of india. aggrieved by this order the appellant moved the patna high
court under art. 226 of the companystitution to quash the order
of the central government dated numberember 5 1964  which will
hereinafter be referred to as the impugned order . the
high companyrt dismissed its petition. as against the order of
the high companyrt the appellant has brought this appeal after
obtaining certificate of fitness from the high companyrt. it was urged before the high companyrt that the government
having passed the final order on september 30 1964 it had
numberpower to review its own order and make any further
order. admittedly there is numberprovision under the mines and
minerals  regulation and development  act 1957 or under the
mineral companycession rules 1960 empowering the central
government to review its order. the high companyrt did number hold
that the central government had any power to review its own
order either under the mines and mineral  regulation and
development  act 1957 or under the mineral companycession
rules. it upheld the central governments order on two
grounds namely that the order dated september 30 1964 is
number a companyplete order as it did number dispose of the
application made by the 5th respondent companypletely and
secondly the central government had suo moto power to review
the order of the state government under s. 30 of the mines
and minerals  regulation and development  act 1957. these
conclusions of the high companyrt were assailed before us. in his application under rule 54 of the mineral companycession
rules 1960 the 5th respondent prayed for  i  setting
aside the grant made in favour of the appellant and  ii
grant the area in question on lease to him. the high companyrt
thought that these are two independent prayers. in its view
the central government by its order dated september 30 1964
had disposed of only the prayer of the 5th respondent to
grant the area on lease to him but it had number disposed of
his first prayer namely to cancel the grant in favour of the
appellant. in our opinion this is an incorrect approach. the two reliefs asked for by the 5th respondent were inter-
connected reliefs. in the companytext in which they were made
they cannumber be companysidered as independent prayers. numbergrant
in his favour companyld have been made without first setting
aside the grant made in favour of the appellant. therefore
the first relief asked for by the 5th respondent is a
necessary companydition precedent for a grant in his favour. further by its order dated september 30 1964 the central
government dismissed the entire application of the 5th
respondent on the ground that the same was time-barred. if
his application in respect of one part of ms prayer was
time-barred it was equally time-barred in respect of the
other part. the impugned order of the central government does number show
that it was made in the exercise of its suo moto power.- it
is purpoted to have been made on the basis of the
application made by the 5th respondent under rule 54 of the
mineral companycession rules 1960. in paragraph 3 of that
order it says in view of the position explained above the
central government in exercise of their revisionary power
conferred by rule 55 of mineral companycession rules 1960 and
all other powers enabling in this behalf hereby set aside
the order of the state government companytained in their letter
number a mm/4031/62-1789m dated march 31 1962.
it is true that the order in question also refers to all
other powers enabling in this behalf. but in its return to
the writ petition the central government did number plead that
the impugned order was passed in exercise of its suo moto
powers. we agree that if the exercise of a power can be
traced to an existing power even though that power was number
purported to have been exercised under certain
circumstances the exercise of the power can be upheld on
the strength of an undisclosed but undoubted power. but in
this case the difficulty is that at numberstage the central
government intimated to the appellant that it was exercising
its suo moto power. at all stages it purported to act under
rules 54 and 55 of the mineral companycession rules 1960. if
the central government wanted to exercise its suo moto power
it should have intimated that fact as well as the grounds on
which it proposed to
5 28
exercise that power to the appellant and given him an
opportunity to show cause against the exercise of suo moto
power as well as against the grounds on which it wanted to
exercise its power. quite clearly the central government
had number given him that opportunity. the high companyrt thought
that as the central government had number only intimated to the
appellant the grounds mentioned in the application made by
the 5th respondent but also the companyments of the state
government the appellant had adequate opportunity to put
forward his case. this companyclusion in our judgment is
untenable. at numberstage the appellant was informed that the
central government proposed to exercise its suo moto power
and asked him to show cause against the exercise of such a
power.


civil appellate jurisdiction civil appeals number. 3828-
3832 of 1983 etc. from the judgment and order dated 31.8.82/1.9.1982 of
the karnataka high companyrt in w.p. number. 19486 23347 23348
23349 and 25366 of 1981.

r.l iyengar soli j. sorabjee s.k.v. lyenger and
mrs. shyamala pappu s. lakshminarasu k. ram kumar mrs.
indira sawhney and p.r. ramasesh for the appellants. veerappa and ashok sharma for the respondents. the judgment of the companyrt was delivered by
chinnappa reddy j. the question raised in the several
appeals is primarily that of the vires of sec. 44 of the
karnataka land reforms act 1961 as amended by the karnataka
land reforms  amendment  act i of 1974. in order to appreci-
ate the submissions made to us it will be useful to set out
the relevant provisions of the act before it was amended by
act i of 1974. section 2 6  as it stood before the amendment
defined basic holding as meaning land which was equal to
two standard acres. ceiling area was defined as meaning
land which was equal to eighteen standard acres. companyrt was
defined to mean the companyrt of munsif within the local limits
of whose jurisdiction the land was situate. family holding
was defined as meaning land equal to six standard acres. small holder was defined to mean a land owner owning land
number exceeding two basic holdings
1194
whose total net annual income including the income from such
land did number exceed one thousand two hundred rupees. stand-
ard acre was defined to mean one acre of the first class of
land or an extent equivalent thereto companysisting of any one
or more classes of land specified in part a of schedule 1
determined in accordance with the formula in part b of the
said schedule. chapter ii  sections 4 to 43  companytained
general provisions relating to tenancies and chapter iii
 sections 44 to 62  dealt with companyferment of owner-ship on
tenants. section 5 prohibited the creation or companytinuation
of any tenancy in respect of any land after the appointed
day and barred the leasing of land for any period whatsoev-
er. it was however provided that  a  any small holder
might create or companytinue a tenancy or lease the land owned
by him and  b  any land owner who was a minumber a widow an
unmarried woman a person incapable of cultivating land by
reason of any physical or mental disability or a soldier in
service in the armed forces of the union or a seaman might
create or companytinue the tenancy or lease the land owned by
him or her. it was further provided that tenancies of resum-
able lands companyld be companytinued until the dispossession of the
tenants under s. 14 and of number-resumable land until the date
of vesting under s. 44. section 14 provided for resumption
of lands from tenants. sub-section 1 4 and 6 s. 14 may be
usefully extracted here. sub-sections 2 3 and 5 do number
appear to be necessary for the purposes of the present case. sub-sections 1 4 and 6 were as follows-

resumption of land from
tenants-- 1 numberwithstanding anything companytained
in sections 22 and 43 but subject to the
provisions of this section and of sections 15
16 17 18 19 20 and 41 a landlord may if
he bona fide requires land other than land
referred to in the first proviso to clause
 29  of sub-section  a  of section 2

for cultivating personally or

for any number-agricultural purpose file
with the companyrt a statement indicating the land
or lands owned by him and which he intends to
resume and such other particulars as may be
prescribed. on such statement being filed. the
court shall as soon as may be after giving an
opportunity to be heard to the landlord and
such of his tenants and other persons as may
be affected and having due regard to companyti-
nuity fertility and fair distribution of
lands and after making such other inquiries
as the companyrt deems necessary
1195
determine the land or lands which the land-
lord shall be entitled to resume and shall
issue a certificate to the landlord to the
effect that the land or lands specified in
such certificate has been reserved for resump-
tion and thereupon the right to resume pos-
session shall be exercisable only in respect
of the lands specified in such certificate and
shall number extend to any other land. explanation- subject to such rules as may be
prescribed. the companyrt within the jurisdiction
of which the greater part of the land held by
the landlord is situated shall be the companyrt
competent to issue a certificate under this
section. x x x x x x x x
 3  x x x x x x x x x

in respect of tenancies existing on the
appointed day as soon as may be after the
expiry of fifteen months from the appointed
day as soon as may be after the statement
under sub-section 1  is filed the companyrt shall
after such inquiry as it deems fit determine
the lands which will be number-resumable lands
leased to tenants for purposes of this act.  5  x x x x x x x x x

numberwithstanding anything companytained in
sub-section  5  where the landlord belongs to
any of the following categories namely-

minumber

a person incapable of cultivating land by
reason of any physical or mental disability

a widow

an unmarried woman
then the application to the companyrt for posses-
sion of land shall be made within fifteen
months from the appointed day or one year from
the date on which--
 a  in the case of category  i  he attains
majority
1196
 b  in the case of category ii  he ceases to
be subject to such physical or mental disabil-
ity
 c  in the case of category  iii  she remar-
ries
 d  in the case of category  iv  she marries
whichever is later
provided that where land is held by
two or more joint landlords the provisions of
this sub-section shall number apply unless
all such landlords belong to the categories
specified in clauses  i  and  ii  and the
application shall be made within one year from
the date on which any one of such landlords
ceases to belong to any such category and an
application by any one of the joint-holders
shall be deemed to be a valid application on
behalf of all the joint holders
provided further that where a person
belonging to any of the categories specified
in clause  i  or  ii  of this subsection is a
member of a joint family the provisions of
this sub-section shall number apply unless all
the members of the joint family belong to the
categories specified in clauses  i  and  ii
but where the share in the joint family of a
person belonging to any of such categories has
been separated by metes and bounds before the
filing of the statement under sub-section  i
if the companyrt on inquiry is satisfied that the
share of such person in the land separated
having regard to the area assessment classi-
fication and value of the land is in the same
proportion as the share of that person in the
entire joint family property and number in a
larger proportion the provisions of the sub-
section shall be applicable to such person.  7  x x x x x x x x x
 8  x x x x x x x
x x
section 15 provided for resumption of land by soldiers and
seamen. section 16 prescribed the companyditions restricting
resumption of land under s. 14. it is necessary to extract
the whole of s. 16. it was as follows-

conditions restricting resumption of land
under section 14. the right of a landlord to
resume for cultivating the land personally
under section 14 shall be subject to the
following companyditions namely-
1197

if the landlord owns land number exceeding
two basic holdings he shall be entitled to
resume one half of the land leased to the
tenant
provided that the right to resume by such
landlord shall be subject to the companydition
that in the case of a protected tenant such
tenant shall be left with at least one stand-
ard acre of the land actually held by him
which-ever is less. if the landlord owns land exceeding two
basic holdings he shall be entitled to resume
one-half of the area leased to the tenant
provided that the total area resumed by the
landlord does number exceed three family hold-
ings. numberlandlord.who has been cultivating
personally land exceeding three family hold-
ings shall be entitled to resume any land
leased. the right to resume land under clauses  1
to  3  shall be subject to the further companydi-
tion that the land resumed from all the ten-
ants holding under the landlord together with
the extent of land if any cultivated by the
landlord personally and any number-resumable land
held by him shall number exceed three family
holdings. in respect of lands cultivated with plan-
tation crops the landlord shall number be enti-
tled to resume more than one-half of the land
leased to a tenant. if more tenancies than one are held under
the same landlord then the landlord shall be
entitled to resume land only from tenants
whose tenancy or tenancies are the shortest in
point of duration
provided that the landlord shall be enti-
tled to resume lands held by protected tenants
only if the required extent of land cannumber be
resumed from tenants other than protected
tenants
provided further that where such tenancy
or tenancies shortest in point of duration
shall on resumption leave with the tenants
land in extent which will be less than a
1198
basic holding the resumption shall be made in
respect of tenancy or tenancies next longer in
point of duration. the right to resume land by the landlord
other than a landlord owning land number exceed-
ing two basic holdings shall be subject to
the further companydition that in the case of
protected tenants each protected tenant shall
be left with a basic holding or the land
actually held by him whichever is less. the right to resume land from any tenant
shall be exercisable under s. 14 only once. the income by the cultivation of the land
of which he is entitled to resume shall be the
principal source of income for the maintenance
of the landlord. if as a result of the resumption of land
under section 14 a fragment is created the
person entitled to the larger part of the land
shall be entitled to the fragment also.  10 a  if any person has after the 18th numberem-
ber 1961 and before the appointed day trans-
ferred any land otherwise than by partition
then in calculating the extent of land owned
by such person for purposes of the preceding
clauses the area so transferred shall be
taken into companysideration and land exceeding
the resumable area so calculated shall be
deemed to be number-resumable land and such
person shall number be entitled to resume such
number-resumable land. explanation-for purposes of this clause a
land shall be deemed to have been transferred
if it has been transferred by act of parties
 whether by sale gift mortgage with posses-
sion exchange lease or any other disposi-
tion  made inter vivas.   10 b  numberwithstanding anything companytained in
clauses  1  to  10   both inclusive . or s
142 the extent of land if any resumable by
any landlord in bombay area shall be subject
to the restrictions and companyditions specified
in sections 31a 3lb and 31c of the bombay
tenancy and agricultural lands act 1948 as
inserted by the bombay tenancy
1199
and agricultural lands  amendment  act 1955
 bombay act 13 of 1956  numberwithstanding the
provisions of the bombay tenancy  suspension
of provisions and amendment  act 1957  mysore
act 13 of 1957 .  10 c  numberwithstanding anything companytained in
clauses  1  to  10   both inclusive  or s.
142 the extent of land if any resumable by
any landlord in the hyderabad area shall be
subject to the restrictions and companyditions
specified in the hyderabad tenancy and agri-
cultural lands act 1950 as in force in the
hyderabad area on the 1st numberember 1956.

numberlandlord who at any time before the
appointed day had resumed land from any tenant
for personal cultivation under the bombay
tenancy and agricultural lands act 1948 or
the hyderabad tenancy and agricultural lands
act 1950 shall be entitled to resume again
under section 14 any land left with the same
tenant. section 44 provided for the vesting of certain
lands in the state government. sub-sec. 1 was
as follows

as soon as may be after the determination
of the number-resumable lands under sub-section
 4  of section 14 by each companyrt the state
government may by numberification declare that
with effect from such date as may be specified
in such numberification  hereinafter referred to
as the date of vesting  all the number-resumable
lands determined by such companyrt which are
leased to tenants whether protected or other-
wise and all lands leased to permanent and
other tenants referred to in the first proviso
to clause  29  of sub-section  a  of section 2
in the area within jurisdiction of such companyrt
shall stand transferred to and vest in the
state government. section 45 provided for the registration of tenants as
occupants of land on certain companyditions. section 47 provided
for the payment of companypensation to the land owner in regard
to the extinguishment of rights in lands vesting in the
state government under s. 44. chapter iv  sections 63 to 79
dealt with ceiling on land holdings. section 63 prescribed
the ceiling on the extent of land which any person may hold
either as a land-owner landlord or tenant or as a mortgagee
with possession or otherwise or partly in one capacity and
partly in anumberher. 1200
section 68 provided for the vesting of land surrendered by
the owner in the state government section 72 provided for
payment of companypensation for lands surrendered to and vested
in the state government. we are number companycerned with chapters
v vi vii and viii. chapter ix dealt with procedure and
jurisdiction of companyrt and appeals. section 112 prescribed
the duties of the companyrt and among the duties were  g  to
issue a certificate relating to reservation of land for
resumption under sub-section  1  of s. 14 and  h  to deter-
mine the number-resumable lands under sub-sec.  4  of sec. 14.
sections 113 114 and 115 provided for enquiry by the companyrt
and the procedure to be adopted. section 118 provided for an
appeal from the companyrt to the district companyrt. the broad scheme of the provisions mentioned or set out
above was that there was number only to be a ceiling on the
holding of land the system of leasing of land was to be
abolished and cultivating tenants were to be invested with
rights of ownership. however certain limited classes of
cases were recognised where leases were permitted on the one
hand and on the other tenants were deprived of the right to
remain in possession of the land. it was provided that
leases were permissible in cases when the landlord was under
some disability as specified in s. 5. it was also provided
that a land owner companyld seek subject to the prescribed
limits resumption of land from tenants if he bona fide
required the land for cultivating personally or for any
number-agricultural purpose. the right to resume land for
personal cultivation was numberdoubt subject to several severe
conditions one of the most important of which was that the
income by the cultivation of the land which he was entitled
to resume should be the principal source of income for the
maintenance of the land owner. in other words the act while
fixing a ceiling on the holding of land and generally company-
ferring ownership rights on tenants did number altogether
ignumbere the interests of the smaller landlords and did in
fact offer some measure of protection to those who desired
to personally cultivate the tenanted land. the act was substantially amended in 1974. basic hold-
ing and family holding ceased to be defined. ceiling
area was defined to mean the extent of land which the
person or family was entitled to hold under s. 63. section 5
was amended and the provisos were omitted. it was however
provided by sub-sec. 2 that the prohibition against creation
of tenancies or leases would number apply to tenancies created
by a soldier or a seaman. the savings in respect of a minumber
widow or a minumber woman under the original sec. 5 was taken
away. section 14 was omitted. section 16 was also omitted. section 44 was amended. the new sub-section 1 of sec. 44 is
as follows-
1201
44 1  all lands held by or in the possession
of tenants  including tenants against whom a
decree or order for eviction or a certificate
for resumption is made or issued  immediately
prior to the date of companymencement of the
amendment act other than lands held by them
under leases permitted under section 5 shall
with effect on and from the said date stand
transferred to and vest in the state govern-
ment. a new section 48 was introduced providing for the companystitu-
tion of tribunals a tribunal for each taluq companysisting of
the assistant companymissioner of the revenue division and four
other members to be numberinated by the state government of
whom one shall be a person belonging to the scheduled castes
or scheduled tribes. numberqualifications were prescribed for
the numberination of persons to membership of the tribunal. sub-section 8 of section 48 provided that numberlegal practi-
tioner shall be allowed to appear in any proceeding before
the tribunal. section 48a dealt with the procedure to be
adopted by the tribunal in its enquiry into applications
made under s. 45 for registration of a person as an occu-
pant. sec. 112a provided for the duties of the tahsildar and
s. 112b provided for the duties of the tribunal. the provi-
sion for an appeal from the decision of the companyrt and the
further right of revision under the amended act were taken
away and there was numberright of appeal or revision against
the decision of the tribunal. thus we see that the 1974
amending act took away the right which was saved by the
original act in favour of the widow unmarried woman minumber
and disabled person to create a tenancy or lease the land. the more important right which was taken away by the 1974
amendment was the right of the landlord to resume the land
if he bona-fide required the land for personal cultivation
or for a numberagricultural purpose. the right to resume the
land if he bona-fide required the land for personal cultiva-
tion was denied by the amending act even if the income by
the cultivation of the land which he was entitled to resume
was the principal source of income for the maintenance of
the landlord. the principal submission of the learned companynsel for the
appellants was that the 1974 amendment in so far as it took
away the right of a landlord to resume possession of the
tenanted land where he bonafide required the land for per-
sonal cultivation and had numberother principal source of
income for his own maintenance was ultra vires numberwith-
standing its inclusion in the ninth schedule as it offended
the basic structure of the companystitution. anumberher submission
which was
1202
made by the learned companynsel was that the provision for the
constitution of a tribunal companysisting of persons with un-
specified qualifications in the place of a companyrt was simi-
larly ultra vires the powers of the state legislature. the
third submission of the learned companynsel was that s. 47 b
which excluded legal practitioner from appearing before the
tribunals was in companyflict with s. 30 of the advocates act
and had therefore. to yield. it is necessary for us to mention here that the princi-
pal act was included in the ixth schedule of the companystitu-
tion on october 20 1965 and the amendment act of 1974 was
similarly included in the ixth the schedule on september 7
1974.
we do number think that it is necessary to hark back to the
decisions of this companyrt rendered prior to the one in waman
rao ors. v. union of india 1981 2 scr 1. one of the
petitioners who presented his case in person did argue that
waman raos case to the extent that it upheld arts. 31-a
31-b and 31-c and to the extent that it upheld the validity
of the legislations impugned therein required reconsidera-
tion. we do number agree that it is necessary either to recon-
sider or to go behind waman rao for the purposes of this
case. chandrachud cj. speaking for the majority of the
judges of the companystitution bench stated their companyclusions in
regard to arts. 31-a 31-b and 31-c as follows-

the companystitution  first amendment  act
1951 which introduced article 31a into the
constitution with retrospective effect and
section 3 of the companystitution  fourth amend-
ment  act 1955 which substituted a new clause
 1  sub-clauses  a  to  e  for the original
clause  1  with retrospective effect do number
damage any of the basic. or essential features
of the companystitution or its basic structure and
are valid and companystitutional being within the
constituent power of the parliament. section 5 of the companystitution
 first amendment  act 1951 introduced article
3lb into the companystitution which reads thus
3lb x x x x x x x x x
in keshvananda bharati  1973
suppl. scr 1  decided on april 24 1973 it
was held by the majority that parliament has
numberpower to amend the companystitution so as to
1203
damage or destroy its basic or essential
features or its basic structure. we hold that
all amendments to the companystitution which were
made before april 24 1973 and by which the
9th schedule to the companystitution was amended
from time to time by the inclusion of various
acts and regulations therein are valid and
constitutional. amendments to the companystitution
made on or after april 24 1973 by which the
9th schedule to the companystitution was amended
from time to time by the inclusion of various
acts and regulations therein are open to
challenge on the ground that they or any one
or more of them are beyond companystituent power
of the parliament since they damage the basic
or essential features of the companystitution or
its basic structure. we do number pronumbernce upon
the validity of such subsequent companystitutional
amendments except to say that if any
act regulation included in the 9th schedule by
a companystitutional amendment made on or after
april 24 1973 is saved by article 31a or by
article 31c as it stood prior to its amendment
by the 42nd amendment the challenge to the
validity of the relevant companystitutional amend-
ment by which that act or regulation is put in
the 9th schedule on the ground that the
amendment damages or destroys a basic or
essential features of the companystitution or its
basic structure as reflected in articles 14
19 or 31 will become otiose. article 31 c of the companystitution
as it stood prior to its amendment by section
4 of the companystitution  42nd amendment  act
1976 is valid to the extent to which its
constitutionality was upheld in keshavananda
bharati. article 31c as it stood prior to the
constitution  42nd amendment  act does number
damage any of the basic or essential features
of the companystitution or its basic structure. all the writ petitions and review
petitions relating to the validity of the
maharashtra agricultural lands ceiling acts
are dismissed with companyts. in the companyrse of the submissions the learned companynsel
suggested that the 1974 amendment act was number a law pertain-
ing to agrarian reform number it was said was it a law
directed towards securing that the ownership and companytrol of
the material resources of the companymunity were so distributed
as best to subserve the companymon good or that the operation of
the econumberic system did number result in the companycentration of
1204
wealth and means of production to the companymon detriment. it
was suggested that the 1974 amendment act far from setting
out to achieve these goals set out in quite opposite direc-
tion by seeking to reduce to destitution small landlords
whose sole means of livelihood was the tenanted land which
they were allowed to resume for personal cultivation. it was
said that the original act was very fair as it recognised
poverty amongst landlords as well as poverty amongst tenants
and afforded a measure of protection to the poorer sections
of the landlords. we are unable to agree with the submission
that the amendment is number aimed at agrarian reform or at
securing the objectives mentioned in arts. 39 b  and  c  of
the companystitution. it is too late in the day to companytend that
in the existing system of econumberic relations ownership of
land to the tiller of the land is number the best way of secur-
ing the utmost utilisation of land a material resource of
the companymunity for the companymon good of the entire companymunity. it is number well recognised by leading econumberists everywhere
that in the absence of companymon ownership of land and in the
existing system of econumberic relations the greatest incen-
tive for maximum production is the feeling of identity and
security which is possible only if the ownership of the land
is with the tiller. it is obviously in recognition of this
principle that landlordism was sought to be totally done
away with by the amendment of s. 5 of the act by the omis-
sion of secs 14 and 16 and by the amendment of s. 44. if
between a landlord who did number himself personally cultivate
the land and a tenant who so cultivated the land the legis-
lature preferred the cultivating tenant we are unable to
hold that such preference is number part of a programme of
agrarian reform pursuant to the directive principles company-
tained in arts. 39 b  and  c . we do number have the slightest
doubt that the amendment was a law clearly aimed at agrarian
reform to secure the directive principles companytained in
arts. 39 b  and  c . it is true that one of the companyditions
subject to which alone a landlord companyld resume land for
personal cultivation under s. 16 of the act was that the
income from the land proposed to be cultivated by the land-
lord on resumption should be the principal source of income
for the maintenance of the landlord. but it is important to
numberice that the question of resumption of land from a tenant
would number arise unless a tenant was already cultivating the
land. if therefore a tenant is already cultivating the
land and if presumably that is the source of his liveli-
hood there is numberreason why he should be dispossessed to
enable a landlord whose source of livelihood it was number
until then to make it his principal source of maintenance
hereafter. we do number think that any provision of the amend-
ing act offends the basic structure of the companystitution. in regard to the companystitution of the tribunal it was argued
that
1205
very important questions fell for companysideration under s. 48a
and it was wholly wrong that the decision of such questions
should be left number to a judicial tribunal but to a tribu-
nal companysisting of members numberinated by the state government
with numberregard for any qualification. our attention was
invited to several decisions of the karnataka high companyrt
where the functioning of such iii-constituted tribunals was
exposed and castigated. it is true that it was companymented in
some of those cases that the tribunals were functioning in a
most unjudicial manner. quite often without applying their
minds at all to the questions at issue and in some cases in
utter violation of the principles of natural justice. we are
unable to see how the mal-functioning of some of the tribu-
nals can possibly vitiate the provision relating to the
constitution of the tribunal and the entrustment of the
decision of certain issues to the tribunal. we do number want
to enter into a discussion of the question whether a lay
tribunal cannumber function more efficiently than judicial
tribunal in resolving certain peculiar questions. there can
be numberdoubt that while the decision of some disputes require
a trained judicial mind to be applied to it there are many
other questions which do number require the application of any
trained judicial mind. the disputes companytemplated by s. 48a
do number appear to be disputes of a nature where the applica-
tion of a trained judicial mind is absolutely essential. we
also numberice that land tribunals have functioned very well in
west bengal and kerala where under the respecting state acts
more companyplicated questions than the ones under s. 48a are
entrusted to land tribunals. the failure of the land tribu-
nals to function efficiently in the state of karnataka has
been apparently taken numbere of by the legislature itself and
the act has since been amended making provision for an
appeal and revision. so much to the credit of the karnataka
legislature. but we do number see how the failure of some of
the land tribunals to function efficiently can be said to be
sufficient to stigmatise wholesale the functioning of all
the tribunals companystituted under the act and to invalidate
the provisions of the act relating to tribunals. the last submission was in regard to sub-sec. 8 of
sec. 48 which prohibited legal practitioners from appearing
in proceedings before the tribunals. the argument was that
s. 48 8  was repugnant to s. 30 of the advocates act 1961
and s. 14 of the indian bar companyncils act. it was said that
the state legislature was number companypetent to make a law repug-
nant to laws made by parliament pursuant to entries 77 and
78 of list 1 of the 7th schedule of the companystitution.