civil appellate jurisdiction civil appeal number 3382 of
1991.
from the judgment and order dated 19.5. 1989/24.5. 1989
of delhi high companyrt in w.p. number 2915 of 1988.

d. thakur v.c. mahajan n.s. das bahl d.n. puri
mukul mudgal ms. a. subhashini k. vasudev s. mathur syed
ali ahmad syed tanweer ahmed s. balakrishnan m.k.d. nambodiri p.p. tripathi and ms. sangita garg for the ap-
pearing parties. the judgment of the companyrt was delivered by
ojha j. special leave granted. this civil appeal by special leave is directed against
the order of the delhi high companyrt dated 19th may 1989 as
clarified by order dated 24th may 1989 in writ petition number
29 15 of 1988.
the facts in brief necessary for the decision of this
appeal are that some land was proposed by the central
government to be allotted for the resettlement of displaced
persons. in october 1959 the rehabilitation ministry employ-
ees companyperative house building society limited new delhi
respondent number 1  hereinafter referred to as the society
was formed and incorporated. after companypleting necessary
formalities an allotment of 60 acres of land was made by the
central government in favour of the society which however
was subsequently cancelled on 7th may 1979. the society
challenged the aforesaid order of cancellation before the
delhi high companyrt in writ petition number 654 of 1979 which was
allowed by a single judge of that companyrt on 1st september
1980. this judgment was challenged by the delhi-development
authority before the high companyrt in letters patent appeal number
254 of 1980 which was dismissed by a division bench of the
high companyrt on 5th january 1981. aggrieved by these orders
the delhi development authority filed special leave petition
 civil  number 3762 of 1981 before this companyrt in which the
parties entered into a companypromise inter alia providing that
an area of 45 acres of land in
place of 60 was to be allotted to the society and that
membership of the society was to be restricted to persons
who were members as on 1st september 1980 in accordance
with the bye-laws of the society as then prevailing. 1st
september 1980 was the date on which writ petition number 654
of 1979 giving rise to special leave petition  civil  number
3762 of 1981 had been allowed by the high companyrt. in pursu-
ance of the companypromise learned companynsel for the delhi devel-
opment authority prayed for and was granted leave on 6th
may 1982 to withdraw the said special leave petition. in
consequence the order of the high companyrt stood modified in
the light of the companypromise entered into between the par-
ties. the society thereafter proceeded to make allotment of
land to its members and draw of lots was held by the society
on 14th december 1988. this draw of lots was challenged by
the appellants before the delhi high companyrt in writ petition
number 29 15 of 1988 in which the orders appealed against were
passed. in order to appreciate the nature of dispute which
was raised in this writ petition with reference to the draw
of lots it is necessary to advert to some more facts. appellants 1 and 2 even though employees of rehabilita-
tion ministry stood posted in its subordinate offices out-
side delhi. it appears that even though only such persons
who were employed and posted in the rehabilitation ministry
in delhi itself were intended to be eligible for membership
of the society appellants 1 and 2 were enrolled as members
of the society on 22nd numberember 1972 and 11th january 1974
respectively. likewise certain other persons who were number
employees of rehabilitation ministry but were employees of
departments which were under the charge of the
minister minister of state of the rehabilitation ministry
were also enrolled as its members by the society. with regard to such members who even though employees of
the rehabilitation ministry were posted outside delhi the
union cabinet in 1977 accepted a suggestion to enable cen-
tral government employees serving outside delhi to become
members of companyperative housing societies in delhi. in pursu-
ance thereof the lt. governumber of delhi passed a companysequen-
tial general order on 9th june 1977 directing that the
condition with regard to bona fide residents of delhi will
stand relaxed to the extent that in case the government
servant during the term of employment and with a view to
settle in delhi after retirement has become a member of a
cooperative house building society he will number be debarred
from the membership of the society simply on the
ground that he was number a resident of delhi at the time of
enrolment. in pursuance of this general order the appellants
and some other similar persons who had been enrolled as
members by the society became eligible to be members of the
society and subsequently their membership was approved. as
regards those persons who were employed in other departments
under the charge of minister minister of state of the reha-
bilitation ministry the society by its resolution dated 14th
december 1980 proposed an amendment of the bye-laws so as
to enable such persons also to become eligible for member-
ship of the society. the proposed amendment which was to be
inserted as bye-law 5 1  a   iii  was sent by the society to
the registrar for approval. the registrar however refused
to approve and register the proposed amendment. aggrieved
the society preferred an appeal before the lt. governumber of
delhi which was allowed on 19th august 1985. the lt.
governumber directed the bye-laws to be so amended as to pro-
vide for eligibility of employees of a ministry of which
department of rehabilitation had been a part. in pursuance
of the aforesaid direction the amended bye-law 5 1  a  iii
was registered and incorporated into the bye-laws by the
registrar on 10th march 1986.
at this place section 12 of the delhi companyperative socie-
ties act 1972  hereinafter referred to as the act  may be
referred to which provides that an amendment of the bye-laws
of a companyperative society shall unless it is expressed to
come into operation on a particular day companye into force on
the day on which it is registered. numberhing to the companytrary
having been provided in this behalf the amended bye-law
5 1  a  iii  was in view of section 12 of the act to companye
into operation from both march 1986 on which date the said
amended bye-law was registered as stated above. it appears
that realising this difficulty the society wrote to the
registrar on 3rd february 1987 to move the lt. governumber for
relaxing the provisions of section 12 of the act. a reminder
was sent by the society on 26th march 1987 to approve the
aforesaid amended bye-law with retrospective effect. the
registrar seems to have moved the government accordingly and
necessary order in this behalf appears to have been passed
by the lt. governumber the terms whereof are to be found in a
numberification dated 27th october 1987 issued by the office
of the registrar companyperative societies which reads as
hereunder
office of the registrar companyperative
societies
new delhi the 27th october 1987
notification
number f. 46/2007/115/85/bye-
laws companyp/5398- in exercise of the powers
conferred under section 88 of the delhi companyp-
erative societies act 1972 the lt. governumber
delhi has been pleased to exempt the rehabili-
tation min. emp. companyp. house building society
ltd. new delhi from the provision of section
12 of the said act in respect of the amended
bye-laws number5 1  a   iii  of the said socie-
ty as registered on 10.3.86 will have retro-
spective effect from 10.1.1968 instead of
10.2.1986.
by order on behalf of l.g. delhi. p. sewallia spl. secy.  companyp
the effect of the order of the lt. governumber indicated in
the aforesaid numberification was that employees of other
departments under the charge of minister minister of state
of rehabilitation ministry became eligible to the membership
of the society with effect from 10th january 1968. there
was a third category of members which too had given rise to
the disputes raised in writ petition number 29 15 of 1988. one
of the companyditions for being eligible to be a member of the
society was that the person sought to be enrolled as a
member of the society had to file an affidavit that he or
she did number own a residential house or plot either in his or
her name or in the name of his or her spouse parents or
dependent relations. 15 persons had number in their affidavits
filed along with their applications for membership given
full particulars in this behalf. it appears that subsequent-
ly this lacuna having companye to its numberice the society kept
their membership in abeyance and gave them an opportunity to
file fresh affidavits giving full particulars which they did
and on that basis their membership was regularised. in the writ petition giving rise to this appeal shri

c. saxena secretary of the society had filed an affidavit
which companytained three lists. list a companytained the names of
572 persons whose membership had been cleared both by the
registrar of companyperative societies and the ministry of home
affairs  department of rehabilitation  in accordance with
the dates of their enrolment. list b companytained the names
of 26 members who were employees of the ministries in delhi/
new delhi which were under the charge of the minister minis-
ter of state of rehabilitation ministry. list c on the
other hand companytained the names of such persons who were
employees in the subordinate
offices of the ministry department of rehabilitation and
were posted outside delhi but wanted to settle in delhi new
delhi after retirement. the appellants as numbericed earlier
fell in the category of members shown in list c. their
membership had in pursuance of the order of the lt. gover-
number dated 9th june 1977 referred to above been approved by
the society in the meeting of its managing companymittee held on
17th numberember 1979. in the same meeting by anumberher resolu-
tion the membership of the 15 persons referred to above as
persons falling in the third category was also regularised
on the basis of the fresh affidavits filed by them. as
regards those members whose names were mentioned in list b
aforesaid it has been pointed out by the high companyrt in the
judgment appealed against that there is numberdispute that the
membership of these 26 persons mentioned in list b was
either approved by the general body in the meeting held on
8th july 1970 or approved by the managing companymittee on 22nd
march 1974 or by the administrator on or before 9th june
1976.
as regards members mentioned in list b the grievance
of the appellants before the high companyrt was that the order
of the lt. governumber expressed in the numberification dated 27th
october 1987 was ultra vires his powers in so far as it
made the amended bye-law 5 1  a  iii  effective retrospec-
tively from 10th january 1968. as regards 15 persons of the
third category referred to above the grievance of the appel-
lants before the high companyrt on the other hand was that they
having filed fresh affidavits after the appellants had been
enrolled as members companyld number be given seniority over the
appellants in the matter of drawing of lots. these companyten-
tions having been repelled by the high companyrt by the orders
appealed against the appellants have preferred this civil
appeal in which subsequently various interlocutory applica-
tions for impleadment and other directions were made which
too are being companysidered hereinafter along with the appeal. in the appeal the real question which arises for companysid-
eration is about the seniority of the members of the society
which companystitutes the basis for allotment of plots at the
time of drawing of lots. as regards the seniority of the 15
members who have been referred to above as members falling
in third category namely those who had been accepted as
members of the society but subsequently whose membership was
kept in abeyance on some defects being numberices in their
affidavits and who on an opportunity being given in this
behalf filed fresh affidavits giving full particulars and
were on the basis of such affidavits treated as regular
members the appellants grievance has been as numbericed
earlier that they having filed fresh affidavits after the
appellants had
been enrolled as members companyld number be given seniority over
the appellants. the high companyrt in the orders appealed
against has pointed out that the cases of these 15 persons
were scrutinised by the screening companymittee who recommended
that they should be treated as regular member of the society
and share certificates be issued to them. it has further
been found by the high companyrt that these 15 persons were
admitted as members of the society either by the managing
committee or the general body or the administrator prior to
17th numberember 1979 and that the record indicated that their
membership was kept in abeyance because of full information
number being furnished in their affidavits. it has held that
since the membership of 26 persons falling in category c
including the appellants was for the first time approved by
the managing companymittee in its meeting held on 17th numberember
1979 and the 15 persons referred to above had been admitted
as members prior to 17th numberember 1979 and in the meeting
held on 17th numberember 1979 their membership was only regu-
larised the 26 persons of category c including the appel-
lants would obviously be junior to the 15 members referred
to above. in our opinion the view taken by the high companyrt
in this behalf does number suffer from any such error which may
justify interference under article 136 of the companystitution. indeed numberserious argument was addressed on this point on
behalf of the appellants. number we advert to the main submission made on behalf of
the appellants with regard to the validity of the order of
the lt. governumber indicated in the numberification dated 27th
october 1987 giving the amended bye-law number 5 1  a  iii
retrospective effect from 10th january 1968. before dealing
with this plea however it is necessary to point out that
during the pendency of the special leave petition giving
rise to this appeal the lt. governumber issued anumberher numberifi-
cation dated 29th august 1990 the relevant portion of
which reads as hereunder
delhi administration delhi  companyperative department
old companyrts building parliament street
new delhi
dated the 29th august 1990
notification
number f. 46/2007/115/85/bye-laws companyp. the lt. governumber of the
union territory of delhi is pleased to rescind his numberifica-
tion number
f. 46/2007/115/86/bye-laws companyp dated 27th october 1987
issued under section 88-of the delhi companyperative societies
act 1972 by which the rehabilitation ministry employees
cooperative house building society limited was exempted from
the provisions of section 12 of the said act in respect of
the amended bye-law number 5 1  a  iii  of the said society. with retrospective effect from 10.1.1968 instead of
18.2.1986.
by order and in the name of
the lt. governumber of the
union territory of delhi. c. kher
spl. secy.  companyperation
delhi administration delhi. by order dated 30th august 1990 and a subsequent order
dated 7th april 1991 passed by this companyrt the parties were
permitted to challenge the validity of this numberification and
ia number 13/1991 has been filed by shri b.r. puri and six
others in this behalf. it has been urged by learned companynsel for the appellants
that if the subsequent numberification dated 29th august 1990
is held to be valid the orders appealed against passed by
the high companyrt deserve to be set aside on that ground alone
inasmuch as they are based on the earlier numberification dated
27th october 1987 which has been rescinded. in the alterna-
tive it has been urged that if the numberification dated 29th
august 1990 is held to be invalid the orders appealed
against yet deserve to be set aside inasmuch as the earlier
numberification dated 27th october 1987 which forms the basis
of these orders is ultra vires. since the validity of the numberification dated 29th au-
gust 1990 would to a large extent depend upon the true
nature and import of the earlier numberification dated 27th
october 1987 we propose to companysider the question of the
validity of the numberification dated 27th october 1987 first. as numbericed earlier it was in pursuance of the order passed
by the lt. governumber on 19th august 1985 that the amended
bye-law 5 1  a  iii  was registered and incorporated in the
bye-laws by the registrar on 10th march 1986. this order had
been passed by lt. governumber in an appeal filed by the socie-
ty against the order of the registrar refusing to register
the aforesaid amendment and rejecting the proposal made in
this behalf by the society. this appeal had obviously been
filed under section 76 1  b  of the act and was entertained
and decided by the lt. governumber in view of the provision
contained in this behalf in section 76 2  c  of the act. it
cannumber be disputed that the jurisdiction which the lt.
governumber exercised in entertaining and deciding the appeal
was of a quasi-judicial character. for allowing the appeal
the lt. governumber in his order dated 19th august 1985 gave
the following reasons
the rest of the proposed amendments which
are based on model bye-laws with certain
modifications are designed to regularise such
of the members as were number the employees of
the department of rehabilitation but were
employees of the ministries of which the
department of rehabilitation had been a part
from time to time under one minister minister
of state. as these persons whose number is
stated to be number large became members of the
society many years ago and their names also
figured as has been stated by the companynsel for
the appellant in the list of members which
was supplied by the society to the department
of rehabilitation and which formed the basis
for the allotment of land to the society by
the ministry of rehabilitation it would be
neither fair number just to leave them in the
lurch number by depriving them of their member-
ship when they cannumber become members of any
other society. it would thus appear that what weighed with the lt.
governumber apart from the other companysiderations stated in his
order was that the proposed amendment to the bye-laws was
designed to regularise such of the members
whose number is stated to be number large and who became
members of the society many years ago and that it would
neither be fair number just to leave them in the lurch number by
depriving them of their membership when they cannumber become
members of any other society. if these were the companysidra-
tions which weighed with the lt. governumber in allowing the
proposed amendment it can hardly be denied that the purpose
of the order was number to give effect to the amended bye-law
from the date on which it was registered as companytemplated by
section 12 of the act which date in the instant case came
to be 10th march 1986 but from the date on which the first
person under this category was enrolled as a member for
otherwise the purpose of the order was bound to be frustrat-
ed and the order would in that event be hit by the doctrine
of brutum fulmen. this quasi-judicial order passed by the
lt. governumber has become final and
it was really to give effect to this order that the order of
the lt. governumber referred to in the numberification dated 27th
october 1987 was passed. in the numbermal companyrse it would number
be just and proper to interfere with such an order under
article 136 of the companystitution. learned companynsel for the appellants has however strenu-
ously urged that the numberification dated 27th october 1987
is ultra vires the powers of the lt. governumber. he pointed
out that section 88 of the act under which the said numberifi-
cation was issued does number authorise the issue of a numberifi-
cation such as the numberification dated 27th october 1987.
having given our anxious companysideration to the submissions
made by learned companynsel in this behalf we find it difficult
to agree with them. section 88 of the act may usefully be
reproduced here. it reads

power to extempt companyperative societies
from provisions of the act.--the lt. governumber
may by general order to be published in the. delhi gazette exempt any companyperative society
or any class of companyperative societies from any
of the provisions of this act or may direct
that such provisions shall apply to such
societies or class of societies with such
modifications as may be specified in the
order. the numberification dated 27th october 1987 has already
been quoted above. its perusal indicates that by its earlier
part the lt. governumber has exempted the society from the
provision of section 12 of the act. this was clearly permis-
sible on a plain reading of section 88. by its later part
the numberification provides that the amended bye-law
5 1  a  iii  will have retrospective effect with effect
from 10.1. 1968. the word which seems to have been omit-
ted after as registered on 10.3.86 and before will have
retrospective effect. it is clear number only from the companytext
of the numberification but also from its hindi version a photo-
stat companyy whereof has been produced before us. transliterat-
ed in roman script it reads
dilli ke up rajyapal dilli sahkari samitiyan
adhiniyam 1972 ki dhara 88 ke antargat pradatt
shaktiyon ka prayog karte hue the rehabilita-
tion ministry employees companyperative society
ltd. naee dilli ko ukta adhiniyam ki dhara 12
me diye gaye pravidhan. ke anusar ukta samiti
ko bye-laws me dhara 5 1  a  tatha  iii  me
sanshodhan dinank 10.3.86 ki apeksha 10.1.68
se lagu hone ki chhut dete hain. according to the hindi version the society has been permit-
ted
to enforce the amended bye-law 5 1  a  iii  with effect from
10.1.68. section 12 companytemplates unless it is expressed to
come into operation on a particular day. the numberification
really permits to express 10.1.68 as the particular day on
which the amended bye-law aforesaid is to companye into opera-
tion. suppose the numberification dated 27th october 1987 had
said at the end of section 12 of the act add-provided that
the amendement of the bye-law made by the rehabilitation
ministry. employees companyperative house building society
ltd new delhi shall companye into force on 10.1.68.
could it be said that this would be beyond the power company-
ferred by section 88 of the act? the answer would have to be
in the negative on a plain reading of section 88. except for
the unhappy language used therein the numberification dated
27th october 1987 does number seem to have been issued by the
lt. governumber in excess of the powers companyferred on him by
section 88 of the act. in such matters substance has to
prevail over the form. we have been informed by learned
counsel for the appplicants in ia number 13 of 1991 that 10th
january 1968 mentioned in the numberification dated 27th
october 1987 is the date on which the first member failing
in category b referred to above had applied for enrolment. as indicated above this was really the purpose of the
quasi-judicial order dated 19th august 1985 passed by the
lt. governumber in the appeal filed by the society and the
numberification has obviously been issued to subserve that
purpose. in so far as we have taken the view that the word
which seems to have been omitted in the numberification dated
27th october 1987 and it has to be read there we may point
out that in surjit singh v. kalra 1991 2 scc 87 it has
been held in paragraph 19 of the report
true it is number permissible to read words in a
statute which are number there but where the
alternative lies between either supplying by
implication words which appear to have been
accidentally omitted or adopting a companystruc-
tion which deprives certain existing words of
all meaning it is permissible to supply the
words  craies statute law 7th edn. p. 109 . similar are the observations in hameedia
hardware stores v.b. mohan lal sowcar 1988
2 scc 513 where it was observed that the companyrt
construing a provision should number easily read
into it words which have number been expressly
enacted but having regard to the companytext in
which a provision appears and the object of
the statute in which the said provision is
enacted the companyrt should companystrue it in a
harmonious way to make it meaningful. an
attempt must always be made so to reconcile
the relevant provisions as to advance the
remedy intended by the
statute.  see sirajul haq khan v. sunni
central board of waqf 1959 scr 1287.
learned companynsel for.the appellants then urged that a
delegated legislation companyld number be given retrospective
effect unless it was specifically provided for. he relied on
the following passages from wade on administrative law
 fifth edition
it follows likewise that the companyrts must
determine the validity of delegated legisla-
tion by applying the test of ultra vires just
as they do in other companytexts. delegated legis-
lation in numberway partakes of the immunity
which acts of parliament enjoy from challenge
in the companyrts for there is a fundamental
difference between a sovereign and a subordi-
nate law making power. acts of parliament have
sovereign force but legislation made under
delegated power can be valid only if it company-
forms exactly to the power granted.  page
748 . whether delegated legislation can
have retrospective operation without express
parliamentary sanction is a question upon
which there is scant authority. it is natural
to presume that parliament is unlikely to
confer a power which it uses only most spar-
ingly itself.  page 751 . just as with other kinds of admin-
istrative action the companyrts must sometimes
condemn rules or regulations for unreasonable-
ness. in interpreting statutes it is natural
to make the assumption that parliament companyld
number have intended powers of delegated legisla-
tion to be exercised unreasonably so that the
legality of the regulations becomes dependent
upon their companytent.  page 752 . reference was made to similar passages even from maxwell
on the interpretation of statutes and vepa p. sarthis
interpretation of statutes. certain decisions of this companyrt
were. also cited in support of the above propositions-
relying on partap singh v. state of punjab air 1964 sc 72
it was further urged that mala fides vitiates an order. even though there can be numberdispute with the legal
propositions enunciated above we find it difficult to apply
them in the instant case to nullify the numberification dated
27th october 1987. firstly the power exercised by the lt.
governumber as indicated earlier was within the ambit
of and permissible under section 88 of the act secondly
keeping in view the facts of the instant case and the pur-
pose of amending bye law 5 1  a  iii  we find that the
numberification is neither unreasonable number can any mala fide
be attributed in issuing the same. in kruse v. johnson 1898 2 q.b. 91 it was held that
in determining the validity of bye-laws made by public
representative bodies such as companynty companyncils the companyrt
ought to be slow to hold that a bye-law is void for unrea-
sonableness. a bye-law so made ought to be supported unless
it is manifestly partial and unequal in its operation be-
tween different classes or unjust or made in bad faith or
clearly involving an unjustifiable interference with the
liberty of those subject to it. in view of this legal posi-
tion the numberification dated 27th october 1987 deserves to
be upheld as in our opinion it does number fall within any of
the exceptions referred to in the case of kurse v. johnson
 supra . learned companynsel for the appellants further submitted
that the numberification dated 27th october 1987 had the
effect of defeating the purpose of the act and was companyse-
quently bad. reliance was placed on registrar of companyperative
societies trivandrum and anr. v. k. kunhambu ors. 1980 2 scr 260 at p. 267 where with reference to section 60
of the madras companyperative societies act 1932 it was held
section 60 empowers the state government to
exempt a registered society from any of the
provisions of the act or to direct that such
provision shall apply to such society with
specified modifications. the power given-to
the government under section 60 of the act is
to be exercised so as to advance the policy
and objects of the act according to the
guidelines as may be gleaned from the preamble
and other provisions which we have already
pointed out are clear. we are of the view that the said numberification cannumber be held
to be bad on this score as well for the simple reason that
the bye-law 5 1  a  iii  introduced by amendment companysequent
upon the quasijudicial order of the lt. governumber passed in
appeal on 19th august 1985 has number been challenged on the
ground that it was beyond the power companyferred by the act. what has been challenged is the retrospective operation
thereof. as seen above if the amended bye-law was number made
retrospective its very purpose was to stand defeated. so far
as the numberification dated 27th october 1987 is companycerned
it really subserves the purpose of the amended bye-law made
under the act
and does number defeat it. lastly it was urged by learned companynsel for the appel-
lants that at worst the effect of the numberification is that
the amended bye-law 5 1  a  iii  would be deemed to be there
with effect from 10.1.68 but from that fact alone the re-
spondents companyld number become members unless their membership
was approved as companytemplated by rule 24 of the delhi company
operative societies rules 1973. suffice it to point out so
far as this submission is companycerned that with regard to
members whose names were mentioned in list b of the affi-
davit.filed by shri s.c. saxena before it the high companyrt
as already numbericed earlier has held in the judgment ap-
pealed against that there is numberdispute that the membership
of these 26 persons mentioned in list b was either ap-
proved by the general body in the meeting held on 8th july
1970 or approved by the managing companymittee on 22nd march
1974 or by the administrator on or before 9th june 1976.
if the numberification dated 27th october 1987 is valid it
had by legal fiction the effect of making persons mentioned
in list b aforesaid eligible for membership of the society
with effect from 10th january 1968 and the approval of the
membership of these persons on various dates as pointed out
by the high companyrt companyld number be held to be invalid simply
because those dates happened to be prior to the date on
which bye-law 5 1  a  iii  was actually incorporated in the
bye-laws of the society. as pointed out by lord asquith in
east end dwellings company limited v. finisbury borough companyncil
1952 appeal cases 109 at p. 132 if you are bidden to
treat an imaginary state of affairs as real you must sure-
ly unless prohibited from doing so also imagine as real
the companysequences and incidents which if the putative state
of affairs had in fact existed must inevitably have fol-
lowed from or accompanied it and that when the statute says
that you must imagine a certain state of affairs it does
number say that having done so you must cause or permit your
imagination to boggle when it companyes to the inevitable companyol-
laries of that state of affairs. learned companynsel for the appellants however urged that
the aforesaid principle of legal faction cannumber be invoked
to put life in a still-born action and relied on the deci-
sion of this companyrt in b. shama rao v. the union territory of
pondicherry 1967 2 scr 650. having gone through the
decision we are of the view that it is clearly distinugisha-
ble. the facts of that case were that the legislative assem-
bly for the union territory of pondicherry passed the pondi-
cherry general sales tax act  10 of 1965  which was pub-
lished on june 30
1965. section 1  2  of the act provided that it would companye
into force on such date as the pondicherry government may
by numberification appoint and s. 2 1  provided that the
madras general sales tax act 1959 as in force in the state
of madras immediately before the companymencement of the pondi-
cherry act shall be extended to pondicherry subject to
certain modifications one of which related to the companystitu-
tion of the appellate tribunal. the act also enacted a
schedule giving the description of goods the point of levy
and the rates of tax. the pondicherry government issued a
numberification on march 1 1966 appointing april 1. 1966 as
the date of companymencement. prior to the issue of the numberifi-
cation the madras legislature had amended the madras act
and companysequently it was the madras act as amended up to
april 1 1966 which was brought into force in pondicherry. when the act had companye into force the petitioner was
served with a numberice to register himself as a dealer and he
thereupon filed a writ petition challenging the validity of
the act. after the petition was filed the pondicherry legisla-
ture passed the pondicherry general sales tax  amendment
act 13 of 1966 whereby s. 1 2  of the principal act was
amended to read that the latter act shall companye into force
on the 1st day of april 1980 it was also provided that all
taxes levied or companylected and all proceedings taken and
things done were to be deemed valid as if the principal act
as amended had been in force in all material times. on these facts it was held that the act of 1965 was void
and still-born and companyld number be revived by the amendment act
of 1966. in this companynection it was pointed out at page 660-
in the present case it is clear that the
pondicherry legislature number only adopted the
madras act as it stood at the date when it
passed the principal act but also enacted that
if the madras legislature were to amend its
act prior to the date when the pondicherry
government would issue its numberification it
would be the amended act which would apply. the legislature at that stage companyld number antic-
ipate that the madras act would number be amended
number companyld it predicate what amendment
or amendments would be carried out or whether
they would be of a sweeping character or
whether they would be suitable in pondicherry. in point of fact the madras act was amended
and by reason of section 2 1  read with sec-
tion 1 2  of the principal act it was the
amended act which was brought into operation
in pondicherry. the result was that the pondi-
cherry legislature accepted the amended act
though it was number and companyld number be aware what
the provisions of the amended act would be. there was in these circumstances a total
surrender in the matter of sales tax legisla-
tion by the pondicherry assembly in favour of
the madras legislature and for that reason we
must agree with mr. desai that the act was
void or as is often said still-born. such is obviously number the position in the instant case. in view of what has been discussed above numberexception can be
taken to the view of the high companyrt holding the said numberifi-
cation to be valid. the question of validity of the subsequent numberification
dated 29th august 1990 whereby the earlier numberification
dated 27th october 1987 was rescinded may number be companysid-
ered. as numbericed earlier the lt. governumber had passed the
quasi judicial order on 19th august 1985 in an appeal flied
by the society against the order of the registrar declining
amendment of the bye-law companycerned. relevant findings of the
lt. governumber along with the reasons there for have already
been extracted above. we have already pointed out that what
weighed with the lt. governumber in passing that order was that
persons for whose benefit the bye-law was sought to be
amended had become members of the society many years ago
that their names figured even in the list of members which
was supplied by the society to the department of rehabilita-
tion and which formed the basis for allotment of land to the
society and that it would be neither fair number just to leave
them in the lurch number by depriving them of their membership
when they cannumber become members of any other society. it was
pointed out by the lt. governumber that the proposed amendment
in the bye-law was designed to regularise such of the
members. from the tenumber of this order there can be no
manner of doubt that the order was passed with a view to
ensure that the persons who had become members of the socie-
ty many years ago should get the benefit of the amended
bye-law by having their membership regularised. such members
could obviously get the benefit of the bye-law only if it
was made retrospectively effective. the order of the lt.
governumber did number companytemplate fresh enrolment of those per-
sons as members after the passing of that order and the
bye-law being amended in companysequence thereof but it companytem-
plated regularisation of their membership. this clearly
indicated that those persons were sought to be treated as
members as from the dates on which they had factually become
members
of the society. we have also pointed out above that in our
opinion in having the numberification dated 27th october 1987
issued the lt governumber only took steps to give effect to
the quasi judicial order companyld be achieved. this being the
true nature of the numberification dated 27th october 1987
the lt. governumber cannumber be said to have in any manner re-
viewed the quasi-judicial order dated 19th august 1985. on
the other hand the subsequent numberification dated 29th
august 1990 even though purported to rescind that earlier
numberification dated 27th october 1987 only it had keeping in
view the nature and purpose of the numberification dated 27th
october 1987 really the effect of reviewing and nullifying
the quasi-judicial order passed by the lt. governumber on 19th
august 1985. in a matter such as this it is the substance
and the companysequence of the numberification dated 29th august
1990 which has to be kept in mind while companysidering the true
import of that numberification. it is settled law that a
quasi-judicial order once passed and having become final
cannumber be reviewed by the authority passing that order
unless power of review has been specifically companyferred. the
qausijudical order dated 19th august 1985 as seen above
had been passed by the lt. governumber under section 76 of the
act. numberpower to review such an order has been companyferred by
the act. in g.v. rao v. govt. of andhra pradesh and ors. 1966 2 scr p. 172 an order had been passed by the gov-
ernment under section 62 of the andhra pradesh panchayat
samithies and zila parishads act. 1959 it was subsequently
reviewed. the validity of this order of review was in ques-
tion in that case. numberpower of review had been companyferred for
review of an order passed under section 62. what was howev-
er argued was that the government was companypetent to review
that order in exercise of power companyferred by section 13 of
the madras general clauses act 1891. repelling this argu-
ment it was held
the learned companynsel for the state then company-
tended that the order dated april 18 1963
could itself be sustained under s. 62 of the
act. reliance is placed upon s. 13 of the
madras general clauses act 1891 whereunder
if any power is companyferred on the government
that power may be exercised from time to time
as occasion requires. but that section cannumber
apply to an order made in exercise of a quasi-
judicial power. section 62 of the act companyfers
a power on the government to cancel or suspend
the resolution of a panchayat samithi in the
circumstances mentioned therein after giving
an opportunity for explanation to the panchay-
at samithi. if the government in exercise of
that power cancels or companyfirms a resolution to
the panchayat
samithi qua that order it becomes functus
officio. section 62 unlike s. 72 of the act
does number companyfer a power on the government to
review its orders. therefore there are no
merits in this companytention. we are aware that the numberification dated 29th august
1990 purports to rescind the earlier numberification dated 27th
october 1987 only and does number speak in clear terms that
the quasi-judicial order dated 19th august 1985 was also
being rescinded. on the facts and circumstances of this
case as emphasised above we are of the opinion that this
circumstance hardly makes any difference inasmuch as even
though the quasi-judicial order dated 19th august 1985 has
number been expressly nullified it has certainly for all
practical purposes been nullified by necessary implication. this in our opinion companyld number be done and the numberification
dated 29th august 1990 is ultra vires on this ground alone. the matter can be looked at from anumberher angle also. it
cannumber be disputed that as a companysequence of the quasi-judi-
cial order of the lt. governumber dated 19th august 1985 and
the numberification dated 27th october 1987 a substantive
right was created in favour of the 26 persons whose names
had been mentioned in list b of the affidavit by shri s.c.
saxena filed in the high companyrt. the challenge to that numberi-
fication had already failed before the high companyrt and the
matter was subjudice before this companyrt in special leave
petition giving rise to this civil appeal when the numberifica-
tion dated 29th august 1990 was issued. the numberification
dated 27th october 1987 had specifically been issued under
s. 88 of the act. even though the subsequent numberification
dated 29th august 1990 does number disclose the source of the
power under which it had been issued learned companynsel for
the appellants traced its source to s. 88 itself read with
the powers to add to amend vary or rescind numberifications
orders rules or bye-laws companytained in s. 21 of the general
clauses act 1897. in state of kerala and ors. v. k.g. madhavan pillai and ors. 1988 4 scr p. 669 it was held
by the high companyrt that if in pursuance of an earlier order
passed by the government some person acquires a right en-
forceable in law the said right cannumber be taken away by a
subsequent order under general power of rescindment avail-
able to the government under the general clauses act and
that the said power of rescindment had to be determined in
the light of the subject matter companytext and the effect of
the relevant provisions of the statute. the view taken by
the high companyrt was upheld by this companyrt in paragraph 27 of
the report. the numberification dated 29th august 1990 would
therefore be invalid on this ground also. in view of the
foregoing discussion the civil appeal deserves to be dis-
missed. at this place we companysider it proper to make a numbere that
learned companynsel for the applicants in ia 13 of 1991 had
attacked the numberification dated 29th august 1990 on two
other grounds also. one was that the said numberification was
vitiated for breach of principles of natural justice it
having taken away vested rights of the applicants created by
the quasi-judicial order of the lt. governumber dated 19th
august 1985 and the numberification dated 27th october 1987
and the other that the effect of dismissal of an earlier
special leave petition by this companyrt on 19th march 1990
could number be nullified by the numberification dated 29th au-
gust 1990 in the view we have taken we have number found it
necessary to go into these questions. we number take up interlocutory applications made in the
appeal. some of these applications have already been dis-
posed of by various orders passed from time to time. the
only applications which are surviving are ia number 1/89 ia
number. 4 and 5/89 ia number. 6 and 8/89 and ia number 13/91. the
nature and purpose of ia number 13/91 has already been indicat-
ed above since the numberification dated 29th august 1990 has
been found by us to be ultra vires and the civil appeal is
being dismissed this application deserves to be allowed. so
does ia number 1/89 also which has been made by the same cate-
gory of members who have made ia number 13/91. the applicants
in ia number. 6 and 8/89 have taken the same stand as the
appellants and their learned companynsel has before us also
adopted the arguments made by learned companynsel for the appel-
lants. since the appeal is being dismissed numberfurther order
on ia number. 6 and 8/89 is necessary. the appellant in ia number. 4 and 5/89 was really aggrieved by the interim order passed
by this companyrt in the special leave petition on 19th july
1989 and since with the dismissal of the appeal the said
interim order will automatically stand vacated numberfurther
order in these applications also is necessary. in the result the appeal fails and is dismissed.


civil appellate jurisdiction civil appeal number 2286 of
1987.
from the judgment and order dated 17.12.1986 of the
madhya pradesh high companyrt in s.a. number 536 of 1985.

m. tarkunde k.m.k. nair for the appellants. mukul mudgal for the respondents. the judgment of the companyrt was delivered by
sabyasachi mukharji j. special leave granted. this is an appeal from the judgment and order of the
high companyrt of madhya pradesh dated 17th of december 1986.
the appeal was
filed by the plaintiff whose suit for a declaration that the
eight agreements companytracts executed between it and the
defendant number 1 m s. jayabharat credit and investment
company limited were number hire purchase agreements but were
agreements relating to transaction of loan and for
injunction restraining the defendant number 1. from enforcing
them until the decision of the suit had been dismissed on
the ground that the suit was number maintainable in view of the
provisions of section 32 of the arbitration act 1940
 hereinafter called the act . section 32 of the act
stipulates that numberwithstanding any law for the time being
in force numbersuit shall lie on any ground whatsoever for a
decision upon the existence effect or validity of an
arbitration agreement or award number shall any arbitration
agreement or award be enforced set aside amended modified
or in any way affected otherwise than as provided in the
said act. the execution of documents companytaining the alleged
arbitration clause was number disputed in this case. the clause
was as follows
all disputes differences or claims arising out
of this agreement shall be settled by arbitration
in accordance with the provisions of the
arbitration act 1940 or any statutory amendments
thereof and shall be referred to the sole
arbitration of a person to be numberinated by the
owners. in the event of death refusal neglect
inability or incapability of the person so
appointed to act as arbitrator the owners may
appoint a new arbitrator. the award of the
arbitrator shall be final and binding on all the
parties companycerned. various issues were framed by the trial companyrt. the
appellate companyrt companyfirmed the said decision. there was a
second appeal to the high companyrt. the high companyrt framed the
question of law in the impugned judgment as follows
whether the companyrts below were right in holding
that section 32 of the arbitration act barred the
suit and in dismissing the same on that ground? it was companytended before the high companyrt by the appellant that
the so-called hire purchase agreements were numberhing else
than agreements entered into by the plaintiff and the
defendant number 1 with respect to transaction of loan. it was
the case of the appellant that the alleged arbitration
agreement was number entered into as such in the sense though
certain documents were executed these were number properly
understood as hire purchase agreements. therefore the main
ques-
tion was whether the existence of the agreement as hire
purchase agreement was denied by the appellant and put in
issue before the companyrt. specific case of the appellant was
that this was a transaction of loan and there was in fact no
agreement of arbitration. it appears from the perusal of the
plaint as well as the issues framed that the very existence
of the agreement described as hire purchase agreements was
put in issue. the execution of the documents was number denied
but it was alleged that these were manipulated documents in
other words fraudulent documents and it was further the case
of the appellant that there were in fact numberagreements which
contained the arbitration agreement. the case of the
appellant was that there was numberdocument companytaining any
valid arbitration agreement in existence. this fact was
raised in the plaint and issue to that effect was raised in
other words that the appellant plaintiff in this case was
contended that the agreement described as hire purchase
agreements were untrue and void procured fraudulently. the
issues framed by the learned trial judge also included this
specific point. section 32 of the act does number companytemplate
the case suits challenging the validity of a companytract
because it companytains an arbitration clause. if the intention
of the legislature were that all documents companytaining an
arbitration clause should companye within the purview of
sections 32 and 33 the legislature would have said so in
appropriate words. these sections have a very limited
application namely where the existence of validity of an
arbitration agreement and number the companytract companytaining the
arbitration agreement is challenged. every person it has to
be borne in mind has a right to bring a suit which was of a
civil nature and the companyrt had jurisdiction to try all suits
of civil nature under section 9 of the companye of civil
procedure. that right has number been taken away by section 32
of the act. such a right can only be taken away by express
terms or by necessary implication. section 32 of the act
does number have that effect. we have perused the plaint in
this case one of the issues namely issue number 4 was
whether the defendant number 1 obtained disputed hire purchase
agreements from the plaintiffs in pursuance of its money
lending business? the existence of the disputed hire
purchase agreements were put in issue. it was suggested that
these were obtained by dubious method or that these were
fraudulently procured. it is true that the execution of an
alleged document was number in issue but the existence of that
document as an arbitration agreement was in issue. sections
32 and 33 of the act on the true companystruction do number purport
to deal with suits for declaration that there was never any
contract or that companytract is void. this principle is well-
settled. the division bench of the calcutta high companyrt
consisting of harries c.j. and banerjee j. in state of
bombay v. adamjee hajee dawood and company a.i.r. 1951 calcutta
147 held that
section 32 of the act does number companytemplate the case of a
suit challenging the validity of a companytract merely because
it companytains an arbitration clause. this is the companyrect
position in law. if that is the law then in the facts and
circumstances of the case the learned trial companyrt the
learned appellate companyrt and the high companyrt were in error in
this case in dismissing the suit and the appeals
respectively.


civil appeal number 1326 of 1967 appeal by special leave
under article 136 of the companystitution of india from the
judgment and decree dated the 31-3-1963 of the allahabad
high companyrt in first appeal number 92 of 1955.

t. desai m. natesan a.t.m. sampath and e.c. agarwala
for the appellant. c. cliagla lalit kumar gupta and a.-g. ratnaparkhi for
the respondent number 1  a . the judgment of the companyrt was delivered by
palekar j. the appellant is the son and legal
representative of the original defendants to the suit
kedarnath and chanda devi. the respondents are the legal
representatives of the deceased plaintiff dhannumberdevi. on january 2 1948 bhannumberdevi presented an application
under order 33 rules 2 and 3 of the companye of civil procedure
for permission to sue as a pauper in the companyrt of the first
civil judge kanpur. tic plaint part of the application
prayed for the relief of possession of a house situated in
the city of kanpur on the allegation that the house was of
the ownership of one budhu lal-her father. budhu lai died
in 1918 and on his death his widow jumma devi inherited the
property. on jumna devis death on december 26 1935 dhanno
devi as the daughter was entitled to succeed to the
property. the defendants were in possession and were
falsely refusing to yield up their possession to dhannumberdevi
and hence she was required to file the suit. a very large
amount had to be paid as companyrt fee which dhannumberdevi was number
in a position to pay and hence she prayed that permission
may be given to her to sue as a pauper. the last date for
filing the suit was december 26 1947 but as the companyrts were
closed for x mas vacation the application had been
presented to the companyrt on january 2 1948 i.e. on the re-
opening of the companyrt and thus it was claimed the suit was
within limitation. the defendants disputed the plaintiff dhannumberevis
titlecontending that she was number the daughter of budhu lal. they alsocontend ed that the suit was barred by
limitation. the trial companyrt negatived the companytentions of the defendants
and decreed the suit. that decree was companyfirmed by the high
court of allahabad by its judgment dated march 31 1965 in
first appeal number 292/1955. the present appeal by special
leave is directed against the judgment of the high companyrt. since both the companyrts held that dhannumberdevi had title to the
house and the defendants had numbere learned companynsel for the
appellant did number rightly press the companytention with regard
to dhannumberdevis title to the property in suit. the only
point pressed before us was with regard to limitation. the point of limitation arises in this way. as already
stated the suit had been instituted on january 2 1948 by an
application for permission to sue as a pauper under order 33

p.c. if that date is regarded as the date on which the
suit was properly instituted then there is numberdispute that
the plaintiffs suit is in time. but what happened was that
on february 26 1949 before the question of pauperism was
formally decided by the companyrt the plaintiffs pleader asked
for three months time to pay the companyrt fee on the
application by treating it as a plaint. the companyrt granted
this prayer and adjourned the case from time to time to
enable her to pay the companyrt fee. the last date so fixed was
july 15 1949. on that day the plaintiff did number appear
number did she pay the companyrt fee and companysequently on july 18
1949 the following order was passed by the companyrt
court fee still unpaid. the applicant did
number press his application to sue in forma
pauperis but offered to pay companyrt fee. he did
number do so till number. order
the application to sue as a pauper is
dismissed with companyts. on august 13 1949 the plaintiff filed an application for
restoration of the case under order 9 rule 9 c.p.c. after
hearing the defendants the companyrt passed an order that the
plaintiff should first pay the companyrt fee and the companyts of
the defendants whereupon the application for restoration
would be companysidered. ace ordingly on numberember 12 1949 the
plaintiff paid the companyrt fee and the defendants companyts. by
his order dated april 15 1950 the learned judge held that
the plaintiff had sufficient cause for number paying the companyrt
fee in time and restored the proceeding to the file after
setting. aside the order referred to above. when the companyrt fee was paid on the application i.e. on
numberember 12 1949 the suit would have been barred by time
because as already stated the last date for filing the
suit was january 2 1948. it is companytended on behalf of the
appellant that on the application to sue as a pauper being
dismissed on january 18 1949 there was numberproceeding
pending before the companyrt thereafter and therefore the
restoration of the proceeding and the payment of companyrt fee
were without authority of law and hence the suit was barred
by limitation. assuming it was companytended that the companyrt
had authority to treat the application to sue as a pauper as
a plaint the application had been companyverted into a plaint
on numberember 12 1949 and on that date the suit would be
barred by time. section 26 of the civil procedure companye provides how a suit
is to be instituted in a civil companyrt. every suit as stated
in that section hall be instituted by the presentation of
a plaint or in such other manner as may be prescribed. on
january 2 1948 the plaintiff had presented an application
for permission to sue under order 33 c.p.c. it was number a
suit instituted by the presentation of a plaint. but the
suit was obviously instituted in a manner prescribed by
order 33. rule 1 of order 33 provides-
subject to the following provisions any suit may be
instituted by a pauper
the manner of such institution is provided in rules 2 and 3
which are as follows

every application for permission to sue
as a pauper shall companytain the particulars
required in regard to plaints in suits a
schedule of any movable or immovable property
belonging to the applicant with the estimated
value thereof shall be annexed thereto and
it shall be signed and verified in the manner
prescribed for the signing and verification of
pleadings. numberwithstanding anything companytained in
these rules the application shall be
presented to the companyrt by the applicant in
person unless he is exempted from appearing
in companyrt in which case the application may be
presented by an authorised agent who can
answer all material questions relating to the
application and who may be examined in the
same manner as the party represented by him
might have been examined had such party
attended in persons
in short according to rules 1 2 and 3 a suit by a pauper
is instituted when the application for permission to sue as
a pauper companytaining the necessary particulars of a plaint is
presented to the companyrt by the applicant in person or by his
authorized agent. in the present case it is number disputed
that this was done on january 2 1948.
there has been a companyflict of judicial opinion on the
question whether a suit companyld be held to have been
instituted when a petition to sue as a pauper was presented. one view is that until permission is granted under rule 7 of
order 33 there is numbersuit instituted. the other view is
that since a suit under section 26 may be instituted number
merely by the presentation of a plaint but also in such
manner as may be prescribed the presentation of the
application by the pauper under order 33 would amount to
institution of the suit. this latter view is accepted by
this companyrt in vijay pratap singh v. dukh haran nath singh
and anumberher. 1 . in that case vijay pratap singh filed a
petition for leave to sue in forma pauperis for the
declaration of his title to ayodhya raj. he claimed that on
the death of the widows of maharaja man singh the estate
devolved on his grand father ganga dutt who died in 1942.
the estate was thus ancestral property in the hands of
ramjivan the father of the plaintiff who thus got interest
in the same by reason of his birth. ramjivan was made one
of the defendants to the suit. the plaintiffs petition to
sue as a pauper was rejected by the subordinate judge under
order 33 rule 5 d  on the ground that the allegations in the
application did number show a cause of action. it is to be
numbered that the companyrt had number decided the issue about his
pauperism because that companyld be done only under rule 7 3
after trial of the issue under rule 6. on such rejection
ramjivan-the father applied to the companyrt to be transposed as
the petitioner but that application was also rejected. this
court held that the rejection of both these applications was
improper because in the first case the
 1 1962  2  suppl s c. r. 675.
court had to see under rule 5  d  whether the allegations
made in the petition showed a cause of action and the companyrt
had numberpower to enter upon a trial of the issues affecting
the merits of the claim at that stage. as regards
ramjivans application for transposition under order 1 rule
10 it was held that the application was wrongly rejected
because such an application. companyld have been legally
entertained by the companyrt because the suit had already been
instituted. it was pointed out that an application to sue
in forma pauperis is but a method prescribed by the companye for
institution of a suit without payment of companyrt fee and
therefore the suit companymences from the moment the
application for permission to sue in forma pauperis as
required by order 33 of the companye is presented. dealing
with the point the companyrt observed at page 685.
we are also of the view that the high companyrt
was in error in holding that by an application
to sue in forma pauperis the applicant prays
for relief personal to himself. an appli-
cation to sue in forma pauperis is but a
method prescribed by the companye for institution
of a suit by a pauper without payment of fee
prescribed by the companyrt fees act if the claim
made by the applicant that he is a pauper is
number established the application may fail. but
there is numberhing personal in such an
application. the suit companymences from the
moment an application for permission to sue in
forma pauperis as required by 0.33 of the companye
of civil procedure is presented and o. 1 r.
10 of the companye of civil procedure would be as
much applicable in such a suit as in a suit in
which companyrt fee had been duly paid. this companyrt has therefore finally resolved the companyflict by
declaring that the suit by a pauper or a person claiming to
be a pauper must be regarded as instituted on the date of
the presentation of the application for- permission to sue
in forma pauperis as required by rules 2 and 3 of order 33
civil procedure companye. as regards limitation for such a suit instituted by a
pauper. the provisions of rule 8 of order 33 are relevant. that rule provides
where the application is granted it shall be
numbered and registered and shall be deemed
to be the plaint in the suit and the suit
shall proceed in all other respects as a suit
instituted in the ordinary manner except that
the plaintiff shall number be liable to pay any
court-fee  other than fees payable for service
of process  in respect of any petition
appointment of a pleader or other proceeding
connected with the suit. in view of this provision there is numberdispute that when
permission to sue as a pauper is granted by the companyrt under
rule 7 of that order the petition or application must be
regarded as a plaint filed on the day when the application
was presented to the companyrt. there is however divergence of opinion with regard to the
legal position arising out of an order passed under rule
7 3  refusing to
3 6 5
allow the applicant to sue as a pauper one view is that on
such a refusal the suit which was already instituted. does number companye to an end because the application by which
the suit was companymenced is a companyposite document companyprising a
plaint and a prayer to sue in forma pauperis and therefore
when the latter alone is refused the suit does number companye
automatically to an end. the proceedings can still companytinue
if companyrt fee is paid on the application treated as a plaint
in which case the date for limitation would be the date on
which the application was presented to the companyrt. see for
example bhanu v. dalmia and company 1  the other view is that
when the application to sue as a pauper is refused that
puts an end to the application which is number a companyposite
document and the companyrt has numberpower thereafter to permit
the defunct application to be revived as a plaint by
accepting companyrt fee. see for example chunna mal v.
bhagwant kishore. 2 . how far this view can be sustained
after this companyrts decision in vijay pratap singh v. dukh
haran nath singh referred to above is a matter which we
are number called upon to decide in the present appeal. nevertheless it must be numbered that there is almost a
concensus of opinion that where before the formal disposal
of the application to sue as a pauper the plaintiff offers
to pay the companyrt fee treating the application as his plaint
or the companyrt agreeing to treat it as a plaint enlarges
the time for payment of the companyrt fee the application must
be regarded as a plaint instituted on the day when the
application was presented. see stuart skinner v. william
orde 3  devender kumar pharti v. mahanta raghuraj
bharti 4 . this proceeds on the view that the companyrt has
power to permit the application to sue in forma pauperis to
be treated as plaint and to extend the time if necessary
for payment of companyrt fee on the document in view of the
fact that it companytains all the necessary particulars for the
purpose of a plaint. in the appeal before us the plaintiff had offered to pay
court fee on the application regarded as a plaint and the
court had agreed that this may be done. there is numberhing in
order 33 civil procedure companye which prevents an applicant
from telling the companyrt that though he had prayed for
permission to sue in forma pauperis he is number in possession
of funds and would like to pay the companyrt fee on the
application treating it as a plaint. thereby in effect the
applicant withdraws his prayer for permission to sue as a
pauper and requests the companyrt number to apply the provisions of
order 33 to him. if the companyrt agrees and generally in
practice the companyrt does agree to treat the application as
a plaint in view of the fact that it companytains all the
necessary particulars required in a plaint there companyld be
numberobjection to the suit being treated as one instituted by
the presentation of a plaint. in the present case as
already stated. even before the issue regarding pauperism
came for trial and decision the plaintiff offered to pay the
requisite fee on the application treating it as a plaint and
the companyrt agreed to that companyrse. the plaintiff prayed for
three months time to pay the companyrt fee by her application
dated february 26 1949 and the companyrt acceded to that
request and adjourned the proceedings from time to time on
several

a.i.r. 1959 m. p. 169.

a.i.r. 1936 allahabad 584.  3  2 allahabad 241  p. c.

a. i.r. 1955 allahabad 154  f. b.  occasions. the plaintiff was finally granted time to pay
the companyrt fee until july 15 1949 but unfortunately the
plaintiff did number attend the companyrt on that day number was the
court fee paid. hence the companyrt passed the order dated july
18 1949 expressly saying that the application to sue as a
pauper is dismissed with companyts. number the above order dismissing the application to sue as a
pauper was to say the least otiose. the plaintiff had
already withdrawn his prayer for permission to sue as a
pauper and the companyrt had agreed to the withdrawal of that
prayer and to treat his application as a plaint. from that
time onward the suit which had been properly instituted
could only proceed on the basis that the suit was as good as
a suit filed on a plaint. and in such a case it was open to
the companyrt under section 149 c.p.c. to order the plaintiff to
pay the deficit companyrt fee and enlarge the period to pay such
court fee. if the companyrt fee is number paid the only order
that the companyrt companyld have passed was to reject the. plaint
under order 7 rule 1 1  c  c.p.c. the rejection of a plaint
is a decree and appealable as. such. the question
therefore is whether in this case there was any rejection
of the plaint for number-payment of the deficit companyrt fee. the actual order passed by the companyrt on july 18 1949 does
number show that the plaint had been rejected. what the companyrt
did was to reject the plaintiffs application to sue as a
pauper which was a redundant order because the prayer to sue
as a pauper had been withdrawn much earlier and the
application to sue as a pauper as such did number survive for
being dismissed on july 18 1949. in law therefore there
was numberrejection of the plaint in the suit and therefore
the suit companytinued to remain on the file. while it
continued on the file the plaintiff applied to the companyrt and
paid the companyrt fee as ordered. on the acceptance of the
court fee by the companyrt the document namely the plaint
would by virtue of section 149 c.p.c. have the same force
and effect as if such fee had been paid in the first
instance viz.


criminal original jurisdiction transfer petition number
96 of 1978.
madan bhatia and d. gobardhan for the petitioner. m. tarkunde and mrs. k. hingorani for the
respondent. the judgment of the companyrt was delivered by
krishna iyer j.- mrs. maneka gandhi figures as an
accused a prosecution launched against her and others by
miss. rani jethmalani for an offence of defamation in the
court of the metropolitan magistrate bombay. the former is
the editor of a monthly called surya and is the wife of
shri sanjay gandhi and daughter-in-law of smt. indira
gandhi former prime minister. the latter is a young
advocate and is the daughter of a leading advocate and
currently an important member of parliament. the present
petition has been made for a transfer of the criminal case
from bombay to delhi and a string of grounds has been set
out to validate the prayer. we decline the transfer and
proceed to give our reasons without making the least
reflection on the merits of the case. assurance of a fair trial is the first imperative of
the dispensation of justice and the central criterion for
the companyrt to companysider when a motion for transfer is made is
number the hypersensitivity or relative companyvenience of a party
or easy availability of legal services or like
minigrievances. something more substantial more companypelling
more imperilling from the point of view of public justice
and its attendant environment is necessitous if the companyrt
is to exercise its power of transfer. this is the cardinal
principle although the circumstances may. be myriad and vary
from case to case. we have to test the petitioners grounds
on this touch-stone bearing in mind the rule that numbermally
the companyplainant has the right to choose any companyrt having
jurisdiction and the accused cannumber dictate where the case
against him should be tried. even so the process of justice
should number harass the parties and from that angle the companyrt
may weigh the circumstances. one of the companymon circumstances alleged in applications
for transfer is the avoidance of substantial prejudice to a
party or witnesses on account of logistics or like factors
especially when an alternative venue will number seriously
handicap the companyplaint and will mitigate the serious
difficulties of the accused. in the present case the
petitioner claims that both the parties reside in delhi and
some formal witnesses belong to delhi but the meat of the
matter in a case of defamation is something different. the
main witnesses are those who speak to having read the
offending matter and other relevant circumstances flowing
therefrom. they belong to bombay in this case and the
suggestion of the petitioners companynsel that delhi readers
may be substitute witness and the companyplainant may companytent
herself with examining such persons is too presumptuous for
serious companysideration. number to the next ground. the sophisticated processes of
a criminal trial certainly require companypetent legal service
to present a partys case. if an accused person for any
particular reason is virtually deprived of this facility
an essential aid to fair trial fails. if in a certain companyrt
the whole bar for reasons of hostility or otherwise
refuses to defend an accused person-an extra-ordinary
situation difficult to imagine having regard to the ethics
of the profession-it may well be put forward as a ground
which merits this companyrts attention. popular frenzy or
official wrath shall number deter a member of the bar from
offering his services to those who wear unpopular names or
unpalatable causes and the indian advocate may number fail this
standard. companynsel has narrated some equivocal episodes which
seem to suggest that the services of an efficient advocate
may number be easy to procure to defend mrs. maneka gandhi. such glib allegations which involve a reflection on the
members of the bar in bombay may number be easily accepted
without incontestible testimony in that behalf apart from
the ipse dixit of the party. that is absent here. it is
difficult to believe that a person of the position of the
petitioner who is the daughter-in-law of the former prime. minister wife of a companysequential person and in her own
right an editor of a popular magazine is unable to engage
a lawyer to defend her while as a fact she is apparently
represented in many legal proceedings quite companypetently. a more serious ground which disturbs us in more ways
than one is the alleged absence of companygenial atmosphere for
a fair and impartial trial. it is becoming a frequent
phenumberenumber in our companyntry that companyrt proceedings are being
disturbed by rude hoodlums and unruly crowds jostling
jeering or cheering and disrupting the judicial hearing with
menaces numberses and worse. this tendency of toughs and
street roughs to violate the serenity of companyrt is
obstructive of the companyrse of justice
and must surely be stamped out. likewise the safety of the
person of an accused or companyplainant is an essential
condition for participation in a trial and where that is put
in peril by companymotion tumult or threat on account of
pathological companyditions prevalent in a particular venue the
request for a transfer may number be dismissed summarily. it
causes disquiet and companycern to a companyrt of justice if a
person seeking justice is unable to appear present ones
case bring ones witnesses or adduce evidence. indeed it
is the duty of the companyrt to assure propitious companyditions
which companyduce to companyparative tranquillity at the trial. turbulent companyditions putting the accuseds life in danger
or creating chaos inside the companyrt hall may jettison public
justice. if this vice is peculiar to a particular place and
is persistent the transfer of the case from that place may
become necessary. likewise if there is general
consternation or atmosphere of tension or raging masses of
people in the entire region taking sides and polluting the
climate vitiating the necessary neutrality to hold a
detached judicial trial the situation may be said to have
deteriorated to such an extent as to warrant transfer. in a
decision cited by the companynsel for the petitioner bose j.
observed
 but we do feel that good grounds for
transfer from jashpurnagar are made out because of the
bitterness of local companymunal feeling and the tenseness
of the atmosphere there. public companyfidence in the
fairness of a trial held in such an atmosphere would be
seriously undermined particularly among reasonable
christians all over india number because the judge was
unfair or biassed but because the machinery of justice
is number geared to work in the midst of such companyditions. the calm detached atmosphere of a fair and impartial
judicial trial would be wanting and even if justice
were done it would number be seen to be done.  1
accepting this perspective we must approach the facts
of the pre sent case without excitement exaggeration or
eclipse of a sense of pro portion. it may be true that the
petitioner attracts a crowd in bombay. indeed it is true of
many companytroversial figures in public life that their
presence in a public place gathers partisans for and
against leading to cries and catcalls or jais or
zindabads. number is it unnatural that some persons may have
acquired for a time a certain quality of reputation
sometimes numberoriety sometimes glory which may make them
the cynumberure of popular attention when they appear in cities
even in a companyrt. and when unkempt crowds press into a companyrt
hall it is possible that some pushing some nudging some
brash ogling or angry starting may occur in the rough and
rumble resulting in ruffled feelings

g.x. francis v. banke bihari singh a.i.r. 1958

c. 809 at 810.
for the victim. this is a far cry from saying that the peace
inside the companyrt has broken down that calm inside the
court is beyond restoration that a tranquil atmosphere for
holding the trial is beyond accomplishment or that
operational freedom for the judge parties advocates and
witnesses has ceased to exist. numbere of the allegations made
by the petitioner read in the pragmatic light of the
counter-averments of the respondent and understood
realistically makes the companytention of the companynsel credible
that a fair trial is impossible. perhaps there was some
rough weather but it subsided and it was a storm in the tea
cup or transcient tension to exaggerate which is
unwarranted. the petitioners case of great insecurity or
molestation to the point of threat to life is so far as the
record bears out difficult to accept. the mere word of an
interested party is insufficient to companyvince us that she is
in jeopardy or the companyrt may number be able to companyduct the case
under companyditions of detachment neutrality or uninterrupted
progress. we are disinclined to stampede ourselves into
conceding a transfer of the case on this score as things
stand number. nevertheless we cannumber view with unconcern the
potentiality of a flare-up and the challenge to a fair
trial in the sense of a satisfactory participation by the
accused in the proceedings against her. mob action may throw
out of gear the wheels of the judicial process. engineered
fury may paralyse a partys ability to present his case or
participate in the trial. if the justice system grinds to a
halt through physical manumberuvres or sound and fury of the
senseless populace the rule of e law runs aground. even the
most hated human anathema has a right to be heard without
the rage of ruffians or huff or toughs being turned against
him to unnerve him as party or witness or advocate. physical
violence to a party actual or imminent is reprehensible
when he seeks justice before a tribual. manageable solutions
must number sweep this companyrt off its feet into granting an easy
transfer but uncontrollable or perilous deterioration will
surely persuade us to shift the venue. it depends. the
frequency of mobbing manumbervres in companyrt precincts is a bad
omen for social justice in its wider companynumberation. we
therefore think it necessary to make a few cautionary
observations which will be sufficient as we see at present
to protect the petitioner and ensure for her a fair trial. the trial companyrt should readily companysider the liberal
exercise of its power to grant for the accused exemption
from personal appearance save on crucial occasions. shri
tarkunde for the respondent fairly agreed that it was the
right thing to do and explained the special reason for its
first rejection. if the application is again made the
magistrate will deal with it as we have indicated. this will
remove much of the unsavoury sensationalism which the
hearing may suffer from
the magistrate is the master of the orderly companyduct of
court proceedings and his authority shall number hang limp if
his business is stalled by brow-beating. it is his duty to
clear the companyrt of companyfusion yelling and nerve-racking
gestures which mar the serious tone of judicial hearing. the
officials whose duty is to keep the public peace shall on
requisition be at the companymand of the companyrt to help it run
its process smoothly. when the situation gets out of hand
the remedy of transfer surgery may be prescribed. every
fleeting rumpus should number lead. to a removal of the case as
it may prove to be a frequent surrender of justice to
commotion. the magistrate shall take measures to enforce
conditions where the companyrt function free and fair and
agitational or muscle tactics yield numberdividends.


civil appellate jurisdiction civil appeal number 708 to 1964.
appeal by special leave from the judgment and order dated
april 3 1962 of the punjab high companyrt in civil writ number 394
of 1962.
bhawani lal and mohan lal agarwal for the appellant gopal
singh for respondent number 3.
the judgment of the companyrt was delivered by
subba rao c.j. this appeal by special leave raises the
question of the true scope of the expression selected area
within the meaning of s. 5-b of the punjab security of land
tenures act 1953  act number 10 of 1953  as amended by act
number 46 of 1957 hereinafter called the act. the facts are number in dispute and they are as follows the
appellant is a tenant under respondent number 3 since the year
1950 in respect of 49 bighas of land. as he was in
continuous occupation of the said land for a period of 6
years he applied under s. 18 of the act and r. 23 of the
rules made thereunder in the prescribed form to the
assistant companylector 1st grade fazilka for the purchase of
the said land. the assistant companylector held-it does number
appear that the 3rd respondent questioned the right of the
appellant to purchase the said land-that the appellant was
entitled to purchase the land and determined the price
payable by the appellant to the 3rd respondent in a sum of
rs. 20630/ and ordered that the said amount was payable in
10 equal six-monthly instalments. on appeal to the
collector ferozepure the order of the assistant companylector
was companyfirmed. on a revision petition filed by the 3rd
respondent before the additional companymissioner jullunder
the said companymissioner took the view that the said area was
selected by the
3rd respondent under s. 5-b of the act and therefore the
appellant had numberright to purchase the same under s. 18 of
the act. on that view he submitted the case to the
financial companymissioner punjab who agreeing with the view
expressed by the additional companymissioner jullunder held
that the 3rd respondent did number reserve the said area under
s. 5 1  of the act and therefore he was entitled to select
the same under s. 5-b of the act and that the appellant had
numberright to purchase the same under s. 18 thereof. in the
result he accepted the revision. the appellant filed a
petition under art. 226 of the companystitution in the high
court of punjab at chandigarh for quashing the order of the
financial companymissioner punjab but the said petition
was dismissed in limine. hence the present appeal. the
scope of this appeal should necessarily be companyfined to the
ambit of the writ petition in the high companyrt. it is
therefore necessary for the appellant to establish that the
order of the financial companymissioner was without jurisdiction
or was vitiated by an error of law apparent on the record. as there was numberquestion of want of jurisdiction in the
financial companymissioner to dispose of the revision it was
contended that the said order was vitiated by two errors of
law on the face of the record firstly it was argued
that the companymissioner companymitted an obvious error in
holding that the 3rd respondent had number reserved the said land
under s. 5 1  of the act when as a matter of fact he had
done so and secondly it was said that a landlord who did
number reserve any area under s. 5 1  of the act but selected
the area under s. 5-b of the act companyld number evict the tenant
under s. 9 a  of the act and therefore the tenant had the
right under s. 18 to purchase the said land in his
possession for the prescribed period. the first question therefore is whether the 3rd respondent
reserved the disputed land under s. 5 1  of the act. the
material parts of the relevant provisions of the act and the
rules made thereunder read thus
section 2 4  reserved area means the area
lawfully reserved under the punjab tenants
 security of tenures  act 1950  act xxii of
1950  as amended by presidents act of 1951
hereinafter referred to as the 1950 act or
under this act. section 5 1  any reservation before the
commencement of this act shall cease to have
effect and subject to the provisions of
sections 3 and 4 any land-owner who owns land
in excess of the permissible area may reserve
out of the entire land held by him in the
state of punjab as landowner any parcel or
parcels number exceeding the permissible area by
intimating his selection in the prescribed
form and manner to the patwari of the estate
in which the land reser-
ved is situate or to such other authority as
may be prescribed. the land under this sub-section can only be reserved by the
land-owner by intimating his selection in the prescribed
form and--manner to the patwari of the estate companycerned. rule 3-intimation for reservation--a land-
owner having land in excess of the permissible
area and intending to make a reservation in
pursuance of the provisions of sections 3 4
or sub-section  1  of section 5 of the act
shall numberify in duplicate his reservation to
the patwari of the estate in which the land is
situated in the form in annexure b to these
rules. rule 5. the reservation by the landowner shall
be deemed to have been effected as soon as the
application is received by the patwari subject
to the verification of all details as
hereinafter provided. rule 6--procedure for dealing with reservation
forms.the patwari shall after verifying all
the particulars given in the formsretain one
copy and forward the other companyy to the
tehsildar with his report as to the
correctness of the particulars referred
to
it will be seen from the said provisions that a valid
reservation can only be made by the land-owner under s. 5 1
of the act read with the rules made thereunder when the
particulars companytained in the application sent by him to the
patwari were verified by the latter. in this case the land-
owner sent an application to the patwari in the prescribed
form but there is numberhing on the record to show that the
patwari verified the companyrectness of the said particulars. the financial companymissioner in his order observed
having examined the case carefully i find
that the exhibit p.x. on which the learned
advocate for the respondent has relied is
really numberproper form as was required under
section 5 of the punjab security of land
tenures act. on the other hand it is only a
mere report. the proper forms in this case
were filed in only in accordance with the
provisions of section 5-b and they are on the
file. it has number been shown that the finding is vitiated by any
error of law indeed as we have indicated earlier there is
numberreport by the patwari verifying the particulars given by
the appellant. the second companytention turns upon the relevant provisions of
the act. it would be companyvenient at the outset to companylect
the said provisions at one place. .lm15
section 2 3  permissible area in relation to a landowner
or a tenant means thirty standard acres and where such
thirty standard acres on being companyverted into ordinary acres
exceed sixty acres such sixty acres
section 4 reserved area means the area lawfully reserved
under the punjab tenants  security of tenures  act 1950
 act xxii of 1950  as amended by the presidents act of
1951 hereinafter referred to as the 1950 act or under
this act. section 2  5-a  surplus area means the area other than
the reserved area and where numberarea has been reserved
the area in excess of the permissible area selected under
section 5-b or the area which is deemed to be surplus area
under sub-section  1  of section 5-c and includes the area
in excess of the permissible area selected under section 19-
b but it will number include a tenants permissible area
section 5.  1  any reservation before the companymencement of
this act shall cease to have effect and subject to the
provisions of sections 3 and 4 any land-owner who owns land
in excess of the permissible area may reserve out of the
entire land held by him in the state of punjab as land-
owner any parcel or parcels number exceeding the permissible
area by intimating his selection in the prescribed form and
manner to the patwari of the estate in which the land
reserved is situate or to such other authority as may be
prescribed
section 5-b.  1  a land-owner who has number exercised his
right of reservation under this act may select his
permissible area and intimate the selection to the pres-
cribed authority within the period specified in section 5-a
and in such form and manner as may be prescribed
provided that a land-owner who is required to furnish a
declaration under section 5-a shall intimate his selection
along with that declaration. section 9.  1  numberwithstanding anything companytained in any
other law for the time being in force numberland-owner shall
be companypetent to eject a tenant except when such tenant-
 1  is a tenant on the area reserved under this act or is a
tenant of a small land-owner. section 18 1  numberwithstanding anything to the companytrary
contained in any law usage or companytract a tenant of a land-
owner other than a small land-owner--
 1  who has been in companytinuous occupation of the land
comprised in his tenancy for a minimum period of six years
or
the gist of the provisions may be stated thus permissible
area is defined and the landlord is empowered to demarcate
a reserved area for his self-cultivation out of the
permissible area and intimate his selection in the
prescribed manner to the patwari of the estate the area
other than the reserved area is defined as is surplus area. numberland-owner is companypetent to eject a tenant unless he is a
tenant in the reserved area and if he has made one or other
of the defaults mentioned in s. 9 of the act. the state
government shall be companypetent to utilize the surplus area in
the re-settlement of the tenants ejected. the tenant who
has been in companytinuous occupation of the land companyprised in
his tenancy for a minimum period of 6 years shall be
entitled to purchase from the land-owner the land so held by
him but number included in the reserved area. but for one
reason or other some of the landowners did number make the
reservation in the manner prescribed under s. 5 of the act
and the rules made thereunder. presumably to give relief to
such land-owners s. 5-b which was inserted by the 1957 act
enabled them to intimate the selection to the prescribed
authority within the period prescribed therein i.e. within
a period of six months from the companymencement of the amending
act. if the area selected under s. 5-b companyld be equated
with the reserved area the land-owner companyld evict the
tenant from that area for the purpose of his self-
cultivation. in that event it would number be a surplus land
which companyld be allotted for the evicted tenants and it
could number also be purchased by the tenants at their option. we are number companycerned in this case with small holders. on this analysis the short question that falls to be decided
is whether a reserved area can be equated with an area
selected by the landowner under s. 5-b of the act. to answer the said question it is necessary to knumber briefly
the scope and purpose of the act. the purpose of the act
has been neatly summarized by the financial companymissioner of
punjab in karam singh v. angrez singh   thus
the main purpose of that act seems to be to

provide a permissible area of 30
standard acres to a land-owner tenant which
he can retain for self-cultivation.  1   1960  39 lah. l.t. 57.

provide security of tenure to tenants by
reducing their liability to ejectment as
specified in section 9

ascertain surplus areas and ensure re-
settlement of ejected tenants on those areas

fix maximum rent payable by tenants and

confer rights on tenants to pre-empt and
purchase their tenancies in certain
circumstances. these purposes must be borne in mind in companystruing the
relevant provisions of the act. the two companycepts on which
the entire act revolves are the permissible area and the
surplus area. out of the permissible area the landowner
is empowered to reserve land number exceeding the said area and
the balance is defined as the surplus area. this
reservation is to enable the landowner to sustain himself by
self-cultivation. the object of the surplus area is to
confer rights in respect thereof on the tenants. this two-
fold object of the act cannumber be achieved unless the land-
lord has reserved some land in the manner prescribed under
s. 5 of the act. but for one reason or other if the
reservation was number made by the land-owner s. 5-b gives him
anumberher opportunity to do so. but it is said that if that
be the intention of the act there was numberreason why the
same phraseology used in s. 5 1  was number used in s. 5-b. though reserved area has been defined there is no
definition of selected area. this indicates that the
legislature did number introduce a new companycept of selected
area in the act. even a companyparison of ss. 5 and 5-b shows
that the process of reservation and selection are almost the
same. under s. 5 1  the land-owner after making the
reservation intimates his selection in the prescribed form
to the patwari. it is therefore manifest that the
reservation is made by the process of selection. so too
under s. 5-b a land-owner who has number exercised the right
of reservation under the act may select his reserved area
and intimate his selection. the wording of s. 5-b indicates
that the selection therein is a selection similar to that in
s. 5 1  and the selection in
s. 5-b is because of default made in reserving by
selection under s. 5 1 . in terms s. 5-b gives the land-
owner anumberher chance
because he has number exercised his right of reservation
earlier under s. 5 1 . the expressions reservation and
selection involve the same process and indeed to some
extent they are companyvertible for one can reserve land by
selection and anumberher can select land by reservation. the
argument based on s. 9 is also without force. it is true
that under s. 9 1   1  a tenant of the area reserved under
the act can be evicted and there is numberother clause enabling
the land-owner to evict a tenant from the selected area. it
is said that reserved area is defined and that selected
area does number fall under that definition and that
therefore the effect of s. 9 is that a tenant in the
selected area cannumber be evicted. but it may be
numbericed that under s. 9 1   1  the expression reserved
area is number used but instead the expression the area
reserved under the act is mentioned. as we have said
earlier the land selected by the land-owner out of the
permissible area can legitimately be described as the area
reserved under the act. if that be the interpretation of s.
5 1  s. 5-b and s. 9 1  it follows that under s. 18 the
tenants cannumber claim to purchase the land from the land-
owner for it is included in the reserved area of the land-
owner. if the companytrary interpretation be accepted it defeats the
purpose of the act. tenants companyld be induced and they would
be permitted to purchase permissible area to the grave
detriment of the land-owners. the entire companycept of surplus
area would be eroded. when asked what purpose ss. 5-b 1
and 5-b 2  would serve the learned companynsel said that in the
case of selected area the landowner can enjoy the land
through the tenant for six years. that would be an
insignificant benefit for the landowner and it companyld number
have possibly been the reason for introducing voluntary and
compulsory selection of land out of the permissible area
under s. 5 1  and 5 2  of the act. it is true that under s.
5 1  the landowner has to include in his reserved area
certain specified categories of land but under s. 5-b his
selection is number subject to any such restrictions. it may
be that one of the objects of the amendment was to enlarge
the discretion of the land-owner in the matter of
reservation or it may be that in the matter of selection the
landowner has to companyform to the provisions of s. 5 1 . we
leave open that question for future decision.