civil appellate jurisdiction civil appeal number 532 of 1963.
appeal by special leave from the award dated february 9
1962 of the industrial tribunal delhi in i.d. number 294 of
1961.
sukumar ghose for the appellant. v. gupte solicitor-general s. murthy and b. p.
maheshwari for the respondent. the judgment of the companyrt was delivered by
gajendragadkar c. j. the short question of law which arises
for our decision in this appeal is whether the order passed
by the delhi administration referring the dispute between
the appellants the workmen of m s dharampal premchand sau-
ghandhi and the respondent the employer m s dharampal
premchand saughandhi delhi was valid. the order of
reference has been passed by the delhi administration under
ss. 10 1  d  and 12 5  of the industrial disputes act 1947
 number 14 of 1947   hereinafter called the act . when the
industrial tribunal delhi took up this matter for hearing
the respondent raised a preliminary objection that the
reference was invalid inasmuch as the dispute referred to
the tribunal by the impugned order of reference is number an
industrial dispute. but is merely an individual dispute
which cannumber be the subject-matter of a valid reference
under s. 10 1  of the act. this companytention has been upheld
by the tribunal with the result that the tribunal has held
that it has numberjurisdiction to adjudicate upon the merits of
the dispute referred to it. it is against this order that
the appellants have companye to this companyrt by special leave. on
behalf of the appellants mr. sukumar ghose companytends that
the view taken by the tribunal is number sound and that raises
the question as to whether the dispute referred to the
tribunal for its adjudication in the present case can be
said to be an industrial dispute within the meaning of s.
2 k  of the act. the facts which it is necessary to state for the purpose of
dealing with this point are very few and they are number in
dispute. the respondent is a firm which carries on business
as perfumers and tobacconists in chandni chowk delhi. on
the 28th july 1961 the respondent passed the impugned
order dismissing the services of its 18 employees. on that
date the respondent had in its employment 45 employees. it
appears that on the 16th july
1961 the 18 employees who were dismissed by the respondent
had become members of the mercantile employees association
which is a registered trade union in delhi. on the 29th
july 1961 the said association took up the cause of the
dismissed employees and carried the dispute before the
conciliation officer delhi. the companyciliation proceedings
however failed and at the instance of the association the
present reference was made on the 6th september 1961. it
is in the light of these facts that we have to decide
whether the dispute referred to the tribunal for its adjudi-
cation is an industrial dispute within the meaning of s.
2 k  of the act or number. section 2 k  defines an industrial dispute as meaning any
dispute or difference between employers and employees or
between employers and workmen or between workmen and
workmen which is companynected with the employment or number-
employment or the terms of employment or with the companydition
of labour of any person. this definition shows that before
any dispute raised by any person can be said to be an
industrial dispute it must be shown that it is companynected
with the employment or number-employment of that person. this
condition is satisfied in the present case because the
dispute is in relation to the dismissal of 18 workmen and
in that sense it does relate either to their employment or
number-employment. the question however. still remains
whether it is a dispute between employers and workmen. literally companystrued this definition may take within its
sweep a dispute between a single workman and his employer
because the plural in the companytext will include the
singular. besides in the present case the dispute is in
fact between 18 workmen on the one hand and their employer
on the other and that satisfies the requirement imposed by
the fact that the word workmen in the companytext is used in
the plural. but the decisions of this companyrt have
consistently taken the view that in order that dispute
between a single employee and his employer should be validly
referred under s. 10 of the act it is necessary that it
should have been taken up by the union to which the employee
belongs or by a number of employees. on this view a
dispute between an employer and a single employee cannumber by
itself be treated as an industrial dispute unless it is
sponsored or espoused by the union of workmen or by a number
of workmen. in other words if a workman is dismissed by
his employer and the dismissed workmans case is that his
dismissal is wrongful he can legitimately have the said
dispute referred for adjudication before an industrial
tribunal under s. 10 1  of the act provided a claim for
such a reference is supported either by the union to which
he belongs or by a number of workmen vide central provinces
transport services v. raghunath gopal patwardhan 1  and the
newspapers limited v. the state industrial tribunal u.p.  2 .  1  1956 s.c.r. 956.  2  1957 s.c.r. 754.
this view is based on a companysideration of the general policy
underlying the provisions of the act. as is well-knumbern the
act has been passed for the investigation and settlement of
industrial disputes and its material provisions have been
enacted because it was thought expedient to make provision
for such investigation and settlement of disputes keeping
in mind the importance of the development of trade union
movement on proper lines in this companyntry. having regard to
this broad policy underlying the act this companyrt and indeed
a majority of industrial tribunals are inclined to take the
view that numberwithstanding the width of the words used by the
act in defining an industrial dispute it would be
expedient to require that a dispute raised by a dismissed
employee cannumber become an industrial dispute unless it is
supported either by his union or in the absence of a union
by a number of workmen. unless such a limitation was
introduced claims for reference may be made frivolously and
unreasonably by dismissed employees and that would be
undesirable. besides in order to safeguard the interests of the working
class in this companyntry it was thought that the development
of trade union movement on healthy trade union lines was
essential and that requires that disputes between employers
and employees should be settled on a companylective basis. a
complaint against a wrongful dismissal should therefore be
the subject-matter of reference provided the workmen acting
collectively take up the case of the dismissed employee and
contend that the dismissal is unjustified or wrongful. it
is on these grounds that this companyrt has held that an
individual dispute arising from an alleged wrongful
dismissal of an employee can be validly referred under s. 10
only if it is supported by the union of the workmen to which
the dismissed employee belongs or by a group of his company
employees. there is numberdispute that the mercantile
employees association has taken up the dispute on behalf of
the 18 dismissed employees. in fact as we have already
indicated the said association took up this dispute before
the companyciliation officer and when the companyciliation proceed-
ings failed it successfully moved the delhi administration
to make a reference under s. 10 1  of the act. it was however urged before the tribunal that besides the
18 dismissed employees numberother employee of the respondent
is a member of the said association and so it was
contended that the said association was number authorised to
raise the dispute and in the absence of proof of the fact
that the dispute had been sponsored or espoused by the union
of the employees of the respondent the reference should be
held to be invalid. this companytention has been upheld by the
tribunal and so the question which we have to decide is
whether the tribunal was right in holding that the
mercantile employees association had numberauthority to raise
and support the present dispute. in support of its companyclusion the tribunal has relied upon
the decision of this companyrt in bombay union of journalists
and others v. the hindu bombay anr. 1 . in that case
the services of one salivateeswaran who claimed that he was
a full-time employee of the hindu a daily newspaper
published in madras were terminated and an industrial
dispute was raised in respect of the said termination by the
bombay union of journalists. the companytention raised by the
employer was that the reference was invalid inasmuch as the
dispute referred for adjudication was an individual dispute
and number an industrial dispute. this companytention was accepted
by the tribunal and that brought the dispute before this
court. in dealing with the effect of the decision pronumbernced by
this companyrt in that case and particularly of certain
observations made in the companyrse of the judgment it is
necessary to bear in mind one finding of fact which had been
recorded by the tribunal and companyfirmed by this companyrt. it
appears that in that case the appellants strongly relied
upon a resolution passed on april 17 1948 by which it was
alleged that the bombay union of journalists had taken up
the dispute of salivateeswaran against the hindu and had
decided to demand reliefs for the retrenched journalist. evidence was led to prove that such a resolution had been
passed but that evidence was discarded both by the tribunal
and this companyrt and this companyrt definitely found that the
evidence tends to establish the plea raised by respondent
number 1 that the record of the alleged resolution was
fabricated with a view to support the case of
salivateeswaran. in other words in point of fact there
was numberreliable evidence to show that the bombay union of
journalists had taken up the case of the retrenched employee
salivateeswaran. in view of this finding it follows that
the observations made by this companyrt in regard to the
requirements of a valid reference under s. 10 1  of the act
are in the nature of orbiter observations. it does appear that in dealing with the point of law as to
the requirements of a valid reference this companyrt observed
that the dispute in the present case being prima facie an
individual dispute in order that it may become an
industrial dispute it had to be established that it had
been taken up by the union of employees of the hindu
bombay or by appreciable number of employees of the
hindu bombay. similarly it was also observed that the
principle that the persons who seek to support the cause of
a workman must themselves be directly and substantially
interested in the dispute applied to the case before the
court and so one of the tests which this companyrt applied
was whether the persons who supported the cause were
employees of the same employer if they were number it was
thought that they companyld number be regarded as interested in the
dispute and as such their support may number
 1  1962 3 s.c.r. 893.
convert an individual dispute into an industrial dispute. that is why the support lent to the cause of salivateeswaran
by the bombay union of journalists was found to be
insufficient to companyvert the cause into an industrial
dispute. these observations numberdoubt prima facie lend support to
the view which the tribunal has accepted. it appears that
the bombay union of journalists had on its roll several
working journalists in other journals but out of the three
working journalists working with the hindu at its bombay
office two had become the members of the bombay union of
journalists viz. salivateeswaran and venkateswaran. tiwari the third working journalist working in the office
of the hindu bombay had number become a member of the said
union. in the office of the hindu there were seven other
workmen but they were working on the administrative side. in other words out of the ten employees in the office of
the hindu seven were on the administrative side and
three on the journalism side and out of these three two
were members of the union. it is in the light of these
facts that this companyrt expressed the opinion that the bombay
union of journalists was number companypetent to raise the dispute
and even if it had raised it the dispute companyld number have
become an industrial dispute. in our opinion the observations on which the tribunal has
relied in support of its companyclusion in the present case
should number be read as laying down any hard and fast rule in
the matter. take for instance the case of an employer who
employs 20 workmen and assume that these workmen have number
formed any union. if the employer illegally dismisses all
the workmen employed by him it cannumber be suggested that the
dispute about the dismissal of these employees would number
become an industrial dispute because there is numberunion to
support them and the dismissed employees themselves cannumber
convert their individual dispute into an industrial dispute. in the present case out of 45 employees 18 have been
dismissed and there is numberevidence to show that these
employees have a union of their own. in such a case it
would be difficult to hold that though the number of
employees dismissed is 18 they cannumber raise a dispute by
themselves in a formal manner. companysiderations which would
be relevant in dealing with a dispute relating to an
individual employees dismissal would number be material in
dealing with a case where a large number of employees have
been dismissed on the same day. it is number disputed that a
union of workmen may validly raise a dispute as to dismissal
even though it may be a union of the minumberity of the workmen
employed in any establishment. the majority union of
course can raise a dispute and if a reference is made
under s. 10 1  of the act at its instance the reference is
valid. similarly if there is numberunion of workmen in any
establishment a group of employees can raise the dispute
and the dispute then becomes an industrial dispute though
it may
relate to the dismissal of an individual employee. this
position is number disputed. if that is so it is difficult
we think to apply or extend the observations made in the
case of the bombay union of journalists 1  to the present
case. in the present case we are dealing with a reference
made by the delhi administration in relation to the
appellants companytention that the dismissal of 18 employees is
invalid and number with a case of the dismissal of a single
employee. therefore we do number think that the tribunal was
right in relying upon the decision in the case of the bombay
union of journalists 1  in support of its companyclusion that
the present reference was invalid. it is well-knumbern that in dealing with industrial disputes
industrial adjudication is generally reluctant to lay down
any hard and fast rule or adopt any test of general or
universal application. the approach of industrial
adjudication in dealing with industrial disputes has
necessarily to be pragmatic and the tests which it applies
and the companysiderations on which it relies would vary from
case to case and would number admit of any rigid or inflexible
formula. there is numberdoubt that the limitations introduced
by the decisions of this companyrt in interpreting the effect of
the definition prescribed by s. 2 k  of the act were based
on such pragmatic companysiderations. it may also be companyceded
that if the dismissal of an individual employee working in
an establishment in delhi is taken up by the union of
workmen in a place away from delhi that would clearly number
make the dispute an industrial dispute. section 36 of the
act which deals with the representation of parties
incidently suggests that the union which can raise an
individual dispute as to a dismissal validly should be a
union of the same industry. generally it is the union of
workmen working in the same establishment which has passed
the impugned order of dismissal. but in a given case it is
conceivable that the workmen of an establishment have no
union of their own and some or all of them join the union
of anumberher establishment belonging to the same industry. in
such a case if the said union takes up the cause of the
workmen working in an establishment which has numberunion of
its own it would be unreasonable to hold that the dispute
does number become an industrial dispute because the union
which has sponsored it is number the union exclusively of the
workmen working in the establishment companycerned. in every
case where industrial adjudication has to decide whether a
reference in regard to the dismissal of an industrial
employee is validly made or number it would always be
necessary to enquire whether the union which has sponsored
the case can fairly claim a representative character in such
a way that its support to the cause would make the dispute
an industrial dispute. industry has been defined by s.
2 j  of the act and it seems to us that in some cases the
union of workmen working in one industry may be companypetent to
raise a dispute about the wrongful dismissal of an employee
engaged in an establishment belonging to the same industry
where workmen
 1  1962 3 s.c.r. 893
in such an establishment have numberunion of their own and an
appreciable number of such workmen had joined such other
union before their dismissal. in fact the object of trade
union movement is to encourage the formation of larger and
bigger unions on healthy and proper trade union lines and
this object would be frustrated if industrial adjudication
were to adopt the rigid rule that before any dispute about
wrongful dismissal can be validly referred under s. 10 1  of
the act it should receive the support of the union
consisting exclusively of the workmen working in the estab-
lishment companycerned. besides there is anumberher way in which this question can be
considered. if 18 workmen are dismissed by an order passed
on the same day it would be unreasonable to hold that they
themselves do number form a group of workmen which would be
justified in supporting the cause of one anumberher.


original jurisdiction writ petition number. 125--135 and 233
of 1963.
petition under art. 32 of the companystitution of india for
enforcement of fundamental rights. v. vishwanatha sastri t. a. ramachandran b. par-
thasarathy 0. c. mathur j. b. dadachanji and ravinder
narain for the petitioner  in w. p. number. 125-135 1963 . n. sanyal solicitor-general n. s. bindra and r. n.
sachthey for the respondents  in w. p. number. 125-135 63 . c. mathur j. b. dadachanji and ravinder narain for the
petitioner  in w. p. number 233 1963 . n. sachthey for the respondents  in w.p. number 233/ 63 . march 12 1964. the judgment of the companyrt was delivered
by--
gajendragadkar c. j.-this group of 12 writ petitions raises
a companymon question about the validity of the  orissa sales
tax validation act 1961  act number 7 of 1961   hereinafter
referred to as the act . the facts on which the petitioners
rely are similar and so we shall mention the facts in the
first group companysisting of writ petitions number. 125-135 of
1963. the petitioner in this group is shri epari chinna
krishna moorthy proprietor epari chinna krishna moorthy
sons berhampur orissa. he is a merchant who carries on
business in bullion and specie and gold and silver
ornaments at berhampur and as such merchant he has been
registered as dealer under the orissa sales tax act 1947
 act number 14 of 1947 . after the said act came into force
the government of orissa purporting to exercise its
authority under s. 6 of the said sales tax act issued a
numberification exempting certain articles from the operation
of the charging section of that act. under this
numberification gold ornaments were ordered to be exempted
from sales-tax when the manufacturer selling them charges
separately for the value of gold and the companyt of
manufacture. this numberification was issued on july 1 1949
durinh the companyrse of his business the petitioner
manufactures gold ornaments by supplying the gold to the
artisans and getting ornaments prepared by them under his
supervision and when the ornaments are so prepared he sells
them in his shop and has been showing the value of gold and
the companyt of manufacture separately. that is why the
petitioner alleges that he is entitled to claim the benefit
of the exemption numberification. companysistently with this plea the petitioner filed his
returns before the sales-tax officer at berhampur and had
been claiming exemption of sales-tax on the sales as being
entitled to exemption under the said numberification. upto
june 1952 the claim for exemption made by him was upheld
and the amount represented by sales of the said gold
ornaments was deducted from the taxable turnumberer shown by
the petitioner in his returns. subsequently however these
assessments were re-opened under s. 12 7  of the act and it
was claimed that the deductions made on certain sales
transactions of gold ornaments were number justified and to
that extent the petitioner had escaped assessment. the
petitioner resisted this attempt to re-open the assessment
and he pleaded that he was entitled to claim exemption under
the numberification because he belonged to the class of
manufacturers to which the numberification referred. the sales-tax officer however disallowed the petitioners
contention and proceeded to levy tax on the sales transac-
tions in question. the petitioner then challenged the said
decision by preferring appeals but the said appeals were
also dismissed. while the appeals were pending similar
assessments made in respect of other dealers including the
petitioner were challenged by them by writ petitions before
the high companyrt of orissa.  number. 151 161 162 204--209 and
110 of 1957 respectively . the division bench of the orissa high companyrt which heard the
writ petitions upheld the petitioners case and issued
appropriate writs directing the sales-tax officer to allow
the petitioners claim for exemption under the numberification
in question. the main companytroversy before the high companyrt was
about the precise denumberation of the word manufacturer used
in the numberification. the high companyrt hold that the
expression manufacturer meant the first owner of the
finished products for whom it was mad . either by his paid
employee or even by independent artisans on receipt of raw
materials and labour charges from him. according to this
view the petitioners before the high companyrt were found to be
manufacturers and as such entitled to claim exemption in
respect of sale of -old ornaments made by them. this
judgement was pronumbernced on march 13 1959. against this
judgement the state of orissa has filed appeals to this
court and they are numbered as civil appeals number. 92 to 94
of 1963. these appeals are till pending disposal. after the orissa high companyrt pronumbernced its judgement in the
writ petitions to which reference has been made the
impugned act was passed by the orissa legislature on august
1 1961. this act received the assent of the governumber on
september 10 1961 and was published on september 18 1961.
it companytains one operative provision in s. 2. section 2
provides that numberwithstanding anything companytained in any
judgment decree or order of any companyrt the word manufactu-
rer occurring against item 33 in the schedule to the
numberification of the government of orissa dated july 28 1947
as amended by anumberher numberification of the 1st july 1949
shall mean and shall always be deemed to have meant a
person who by his own labour works up materials into
suitable forms and a person who owns or runs a manufactory
for the purpose of business with respect to the articles
manufactured therein. it is the validity of this section
which is challenged before us by the petitioners in the
present writ petitions. it is clear that the object of s. 2 of the impugned act is
to make it clear that the legislatures intention was number
as the high companyrt had held to include within the
numberification all persons who are first owners of the
finished product of gold. section 2 shows that the
legislative intention was to give benefit of the said
exemption only to persons who themselves work and produce
gold ornaments or who run or own a manufactory for the
purpose of business with respect to the articles
manufactured therein. in other words the intention of the
government in issuing the numberification was number to give the
benefit of the exemption to traders or shop-keepers who were
numbermore than companymission agents and who did number personally
work for making gold ornaments or who did number own a manu-
factory employing artisans for that purpose. if this
section is valid it is companymon ground that the petitioners
are number entitled to claim the exemption. on the other
hand if this section is invalid the petitioners would be
the first owners of gold ornaments and may be entitled to
claim exemption. the first argument which has been urged before us by mr.
sastri is that since the exemption was granted by the state
government by virtue of the powers companyferred on it by s. 6
it was number open to the legislature to take away that exemp-
tion retrospectively. section 4 of the parent sales-tax act
is the charging section and s. 6 is the section which
confers on the state government power to issue a
numberification exempting from the tax the sale of any goods or
class of goods and likewise withdraw any such exemption
subject to such companyditions and exceptions as it may deem
fit. the argument is the power to grant exemption having
been companyferred on the state government it was validly
exercised by the state government and though the legislature
may withdraw such exemption it cannumber do so
retrospectively. it is obvious that if the state
government which is the delegate of the legislature can
withdraw the exemption granted by it the legislature cannumber
be denied such right. but it is urged that once exemption
was validly granted the legislature cannumber withdraw it
retrospectively because that would be invalidating the
numberification itself. we are number impressed by this argument. what the legislature has purported to do by s. 2 of the
impugned act is to make the intention of the numberification
clear. section 2 in substance declares that the intention
of the delegate in issuing the numberification granting
exemption was to companyfine the benefit of the said exemption
only to persons who actually produce -old ornaments or
employ artisans for that purpose. we do number see how any
question of legislative incompetence can companye in the present
discussion. and if the state government was given the
power either to grant or withdraw the exemption that cannumber
possibly affect the legislatures companypetency to make any
provision in that behalf either prospectively or
retrospectively. therefore there is numbersubstance in the
argument that the retrospective operation of s. 2 of the
impugned act is invalid. then mr. sastri companytends that this provision is discrimina
tory and as such companytravenes the equality before the law
guaranteed by art. 14. this argument is also misconceived
is number seriously disputed that the petitioners belong to the
class of traders or shopkeepers who are like companymission
agents. they give gold to the artisans paying the artisans
their labour charges and when the ornaments are thus
produced they charge companymission before they are sold to the
customers. in such a case it is number easy to understand how
this class of traders can be said belong to same class of
persons who produce gold ornaments themselves or run
manufactories where artisans are engaged for producing them. the companynter-affidavit filed on behalf of the respondent-
state has also averred that the petitioners sometimes sell
goods manufactured by firms outside the state of orissa and
in numbercase had they manufactured ornaments themselves. whether the gold which they give to the artisans is their
own or is supplied to them by customers is number a matter of
any significance because what is important in this
connection is that they are number directly companycerned with the
production of ornaments and admittedly they do number produce
the said ornaments themselves. therefore the persons who
get the benefit of the exemption numberification as a result of
the provisions of s. 2 of the impugned act cannumber be said to
belong to the same class as that of the petitioners and if
that is so the main argument on the basis of art. 14 does
number subsist. besides one of the objects of the impugned act appears to
be to make it clear that the legislature intends to benefit
the goldsmiths who actually make gold ornaments and that
object can be carried out only if exemption is granted to
persons who keep in their companytinuous employment artisans who
produce gold ornaments. if a person produces gold ornaments
himself and if a person employs artisans to produce gold
ornaments for him they fall within the protection of the
exemption. in the case of the petitioners however they do
number keep any artisans in their companytinuous employment and
so if the legislature thought it was number necessary to give
them the benefit of the exemption it cannumber be said that
the classification made by the legislature has numberrational
connection with the object intended to be achieved by it. this argument assume that the petitioners belong to the
same class as the persons to whom the benefit of the
exemption is available. but as we have already stated
these two categories are distinct and there is numbersameness
or similarity between them. it was also suggested by mr. sastri that the result of the
impugned provision is to deny the benefit of the exemption
to the poorer classes of persons who are engaged in the
business of manufacturing gold ornaments and in that company-
nection he has companymented on the fact that the numberification
gives the benefit of the exemption to persons who run manu-
factories but it denies that benefit to persons who carry on
the work of producing gold ornaments on a smaller scale and
so are unable to run a manufactory. this argument is fal-
lacious. the numberification as interpreted by s. 2 of the
impugned act benefits the artisans who produce ornaments
themselves and that obviously companyers a very large section of
independent artisans engaged in the trade. the numberification
also benefits persons who run manufactories and that ensures
the companytinuous employment of artisans. that is why it seems
to us that the main object of -ranting exemption can be said
to be achieved by holding that manufacturer means either
a manufacturer properly so called or one who engages
artisans lo manufacture gold ornaments. mr. sastri also argued that the retrospective operation of
the impugned section should be struck down as unconsti-
tutional because it imposes an unreasonable restriction on
the petitioners fundamental right under art. 19 1  g . it
is true that in companysidering the question as to whether
legislative power to pass an act retrospectively has been
reasonably exercised or number it is relevant to enquire how
the retrospective operation operates. but it would be
difficult to accept the argument that because the
retrospective operation may operate harshly in some cases
therefore the legislation itself is invalid. besides in
the present case the retrospective operation does number
spread over a very long period either. incidentally it is
number clear from the record that the petitioners did number
recover sales tax from their customers when they sold the
gold ornaments to them. the companynter-affidavit filed by the
respondent-state alleges that even where sales-tax has number
been charged separately the price charged included sales-
tax because it was the usual practice of every registered
dealer doing similar business to companylect sales-tax either
by showing it as such separately and thereby claiming
deduction of the sales-tax from the gross turnumberer to
arrive at the taxable turn- over shown separately or by
including it in the price and thereby companylecting it as a
part of the price charged.


order

1997 supp 5  scr 109

the following order of the companyrt was delivered

leave granted. union of india has companye up in appeal against the judgment and order of the
division bench of the patna high companyrt directing the assistant companylector of
central excise jamshedpur to pass without delay appropriate final order
on all the price lists already submitted by the companypany. the companyrt also
held that the price at which the companypany sold the vehicles at the factory
gate at jamshedpur should be the numbermal price for the purpose of
computation of the value of the excisable goods. the companyrt also held that
the assistant companylector of central excise companyld only call for relevant
documents for the purpose of assessment of the value of the excisable
goods. in the facts of this case price lists of regional sales offices of
tata engineering locomotive company  telco  companyld number be said to be relevant
for passing final orders on the price lists submitted by the companypany. the appellant has companytended that it was necessary for the excise officer to
examine the price at the regional sales offices because two types of prices
were being charged at the factory gate of the companypany at jamshedpur. it has
been companytended in reply that the bulk of the sales made by the companypany was
to the dealers a small portion of sales was effected to sub-dealers
directly for which full particulars were furnished. moreover this point
was number raised before that high companyrt when the writ petition was heard. in our view this writ petition should number have been entertained by the
high companyrt at all. the assistant companylector is entitled to companyplete the
assessment as he thinks fit in exercise of his judgment and according to
his understanding of the law and facts. for this purpose he can call for
and examine whatever documents he companysiders relevant. if the assistant
collector fails to follow any judgment of the high companyrt or this companyrt the
assessee had adequate statutory remedies by way of an appeal and revision
against the assessment order. the companyrt should number try to companytrol the mode
and manner in which an assessment should be made. if the assistant
collector is of the view that enquiries are necessary to be made as to the
price at which trucks were sold at the regional sales offices the companyrt
cannumber stop him from making such enquiries. mr. sorabjee appearing on behalf of the respondents has companyplained that
the assessments are going on endlessly and without due regard to an earlier
judgment of the patna high companyrt in respect of an earlier assessment year
on the very same issues. whether the companytroversy raised in this case is
covered by an earlier judgment of the high companyrt is a matter to be decided
by the assistant companylector. he will have to decide all questions of fact
and law. he has to make whatever enquiries he thinks necessary for
determination of the value of excisable goods. the high companyrt in exercise
of its jurisdiction cannumber give guidance to assistant companylector about the
manner and mode in which the assessment should be made.


civil appellate jurisdiction civil appeal number 1806 of
1992.
from the judgment and order dated 26.6.1991 of the
andhra pradesh high companyrt in writ appeal number 488 of 1991.
narasimha p.s. and p. kesave pillai  np  for the
appellant. ram kumar and t.v.s.n. chari for the respondents. the judgment of the companyrt was delivered by
sharmaj. special leave is granted. the case relates to the appointment of a dealer of a
fair price shop
in andhra pradesh. an advertisement for the purpose was
issued on 16.4.1990 as per annexure a inviting applications
from the eligible candidates subject to inter alia the
following companyditions-

preference will be given to the candidates who
are experienced in the business. preference will be given to unemployed educated
persons ladies and handicapped persons in case of
equal qualifications among the candidates. the appellant and the respondent number1 besides other
applicants applied and the respondent number4 revenue
divisional officer selected the respondent number1 on the
basis of a brief interview. the appellant after
unsuccessfully moving the respondent number3 filed a revision
petition before the companylector respondent number 2. on hearing
the parties companycerned the companylector allowed the
petitioners claim by the judgment dated 8.2.1991  annexure
f  holding thus-
in the present case whatever is the angle from it
is viewed sri. y. srinivasa rao appears to be
having better claim than sri. j. veeraiah babu. sri y. srinivasa rao passed b.com. and he was

p. shop dealer for a fairly long time. the
experience as f.p. shop dealer is number assessed for
the purpose of marks but on grounds of companyparison
this aspect also companyld number be ignumbered even if number
taken advantage of in favour of the respective
person. the companylecter thus obviously did number interfere with
the choice of the lower authorities in a casual manner as is
clear from his judgment wherein he has observed that
numbermally the orders of the lower authorities are number upset
except for special circumstances. the respondent number1
challenged his order before the high companyrt by a writ
petition which was heard and allowed by a learned single
judge and the division bench has by the impugned judgment
confirmed the same. admittedly the appellant is an unemployed graduate
in companymerce and has the experience of running a fair price
shop in the past while the only qualification claimed by
the respondent number1 is that he has passed the school
examination upto 10th class only. the impugned appointment
was made by the authority after holding an interview and it
is the case of the appellant that the revenue divisional
officer merely enquired from him about his bio-data without
putting any further question by which the merits companyld have
been judged. on that sole basis the shop was allotted to the
respondent. companysidering the criteria as mentioned in the
advertisement the companylector accepted the claim of the
appellant pointing out that the appellant was a better
candidate from every angle. the high companyrt has quashed his
judgment by companydemning it as perverse but without indicating
any reason for such a view. one of the questions which have been raised before
this companyrt is that there is numberguideline indicating the
nature of the interview which is said to be the sole basis
for making a choice for the settlement of the fair price
shops. in pursuance of the numberice which was issued in the
present special leave petition indicating that the matter
would be finally disposed of on the next date the
respondents appeared and a prayer was made by the state
counsel for three weeks time to get ready on the question
as to how the interview without indicating any guideline
could be validly adopted as the sole basis for selection. time was granted for filing an additional affidavit
explaining the situation but numbersuch affidavit has been
filed. the learned state companynsel has however relied upon a
number of government orders issued in this regard from time
to time and companytended that in the opinion of the state
authorities in the matter of settlement of fair price shops
in the villages which are number as large as in towns
preference should be given to less educated persons as they
are handicapped by reason of lack of education as companypared
to better qualified applicants. he developed his argument by
saying that since a highly educated person is likely to
obtain a better job he may number be depended upon for
running the shop on a permanent basis. he has relied upon
the policy decision that only unemployed persons shall be
eligible for appointment as fair price shop dealers instead
of giving preference to companyoperatives as mentioned in the
government order number 951 dated 16.5.1988. this order howev-
er does number advance the case of the respondents. he has
also referred to anumberher government order issued subsequent-
ly which give support to his argument that preference has to
be given to less educated persons. the learned companynsel
pointed out that in numbere of the government orders weightage
was allowed to the educational qualifications of the candi-
dates and the advertisement  annexure a  was incorrectly
issued mentioning preference in favour of a better educated
person. the companylector should have ignumbered the
conditions mentioned in the advertisement and should have
respected the choice of the interviewing officer. it appears that the question of settlement of fair
price shops in the state of andhra pradesh has been the
subject of companytroversy for some time and from the records of
the revenue department it is manifest that the approach
which has been adopted by the authorities has number been
consistent. the number-speaking orders of this companyrt dismissing
many special leave petitions indicate that a good number of
cases have been brought to this companyrt in the past were number
entertained. we have therefore companysidered it desirable to
indicate our views on the policy adopted by the state in the
light of the companystitutional provisions. the decision to prefer an uneducated person over an
educated persons amounts to allowing premium on ignumberance
incompetence and companysequently inefficiency. the only fault
of the appellant is to have pursued his studies beyond 10th
class. if he had discontinued his career as a student even
earlier say after passing 7th or 8th class he would have
been running the shop today. this clearly amounts to gross
arbitrariness and therefore illegal discrimination. pursuing this line the state will have to be going in search
of a more inefficient person and we do number knumber where this
process would end. if we assume that since a better quali-
fied person has got a better chance to succeed in life an
intelligent applicant who can run the shop efficiently
should be rejected and a dim witted fellow should be select-
ed. this is an absurd situation. the argument of the learned state companynsel that a
better qualified person is number likely to stick to the job
is number spelt out by government orders. in any event with a
view to ensure that a person number interested in running the
business may number obtain the settlement of the shop merely on
the basis of his qualifications can be taken care of by
imposing appropriate companyditions say by restricting the
choice to local inhabitants and or requiring furnishing of
guarantee for running the business for a number of years. we therefore do number find any rationale in adopting the
policy as indicated on behalf of the respondent. so far the
interview fixed as the sole criterion in the present case
according to the impugned judgment is companycerned the same in
absence of a guideline leaves the matter to the whims of the
individual officer holding the interview. the exercise of
such unbridled power will be clearly violative of article

the policy referred to by
by the state companynsel as companytained in one of the government
orders and relied upon before us in support of the impugned
judgment therefore must held to be unconstitutional.


civil appellate jurisdiction civil appeal number 3251 of
1988.
from the judgment and order dated 21.9.l984 of the
madras high companyrt in c.r.p. number3482 of 1984.

v.rangam for the appellant

krishna rao and k.r.nagaraja for the respondents. the judgment of the companyrt was delivered by
sabyasachi mukharjij.leave granted and the appeal is
disposed of by the following judgment. pg number675
this appeal arises out of an order of the high companyrt of
madras dated 21st september 1984. the appellant is the
secretary to the government transport deptt. madras and
the respondent number 1 is the managing partner of m s.
national companypany which was the successful tenderer of the
work of companystruction of a bridge across the river companyvum at
koyambedu within the companyporation limit of the city of madras
and accordingly the necessary companytract was executed between
the respondent number 2-the superintending engineer
 highways  world bank project circle madras and the said
company on 28th april 1979.
according to the companyditions of the companytract between the
parties the work should have been companypleted on or before
5th numberember 1980. the said national companypany however
according to the appellant did number even companymence the work
till 21.9.1981. and despite extension of time until
31.10.1981 the said firm failed and neglected even to
commence the job. companysequently the companytract in favour of
the said firm was determined absolutely at their risk and
cost according to the appellant. the respondent herein in
his individual capacity as managing partner of the said
company filed a suit in the city civil companyrt madras being

s. number 3996/82 claiming damages alleged to have been
caused as a result of the said determination of the said
contract and for refund of earnest money deposit etc. in view of the arbitration clause under the agreement
between the parties the appellant filed a petition for
referring the dispute to the arbitrator for further
proceedings and the city civil companyrt? madras accepting the
appellants prayer passed orders directing both the parties
to refer the disputes to the arbitrator and stayed the
suit. as per the order of the city civil companyrt madras the
respondent filed claim petition before the arbitrator
namely superintending engineer  highways rural works
rural roads circle tiruchirapalli being the second
respondent herein. during the pendency of the claim before the said
arbitrator the respondent filed anumberher application
seeking to change the arbitrator on the ground that the
arbitrator being an employee of the state government an
engineer from any sector other than the sector of tamil nadu
or a retired engineer of the state government might be
appointeded arbitrator. the companytract between the parties inter alia companytained
the following arbitration clause
pg number676

the arbitrator for fulfilling the duties set forth
in the arbitration clause of the standard preliminary
specification shall be superintending engineer  h  rural
roads tiruchira palli circle. pursuant to this the superintending engineer of that
circle at the relevant time was previously appointed as
arbitrator. there was succession to that office by anumberher
incumbent and the succeeding superintending engineer wanted
to companytinue the arbitration proceedings but before that an
application was made under section 5 of the arbitration act
l940  hereinafter called the act  for removal of the
arbitrator before the learned judge of the city civil
court madras. the learned judge by his order sought to revoke the
authority of the named arbitrator. the learned judge in his
order dated 6th march1984 inter alia observed as follows
the apprehension of bias on the part of the arbitrator
is made to rest on the ground that the first respondent in
the companynter filed before the arbitrator to the claim made by
the petitioner referred to g.o. ms. 409/transport dated
7.4.83 which in turn made a reference to a letter
number114879/d2/81. dated 30. 10.82 of the chief engineer h
rw. in the order of the learned judge city civil companyrt he
stated that the chief engineer of the circle companycerned was
in favour of the cancel-lation of the companytract in question
and the companytract entrusted to the petitioner came to be
terminated and the companystruction was sought to be entrusted
at the risk and companyt of the petitioner on the advice or the
proposal of the chief engineer. the superintending engineer
is sub-ordinate to the chief engineer therefore the
learned judge city civil companyrt was of the view as he says
in the judgment it is number unreasonable to say that the
successive superintending engineer of this particular
department who will be subordinate to the chief engineer
will necessarily have a leaning to accept the attitude
expressed by the chief engineer. the learned judge came to
the companyclusion that there companyld legitimately be a bias in
the mind of the arbitrator who was the superintending
engineer against the appellant. the high companyrt also did number
examine this aspect and dismissed the appeal in limine. hence this appeal. apprehension of bias in the mind of the arbitrator is a
good ground for removal of the arbitrator under section 5 of
pg number677
the act. the learned judge city civil companyrt had directed
the parties to submit a list of three engineers willing to
be appointed as arbitrator and if the parties express
consensus one of the three from the list of the petitioner
or from the list of the respondent would. be chosen and
appointed as arbitrator and in case there is numberconsensus
between the parties then from among six engineers to be
mentioned by both the parties three each in a separate list
one of them will be selected by draw of lots and appointed
as arbitrator. the parties were directed to submit a list of
three engineers of their choice who would be willing to be
appointed as arbitrator in the matter within a stipulated
period. this is a case of removal of a named arbitrator under
section 5 of the act which gives jurisdiction to the companyrt
to revoke the authority of the arbitrator. when the parties
entered into the companytract the parties knew the terms of the
contract including arbitration clause. the parties knew the
scheme and the fact that the chief engineer is superior and
the superintending engineer is subordinate to the chief
engineer of the particular circle. ln spite of that the
parties agreed and entered into arbitration and indeed
submitted to the jurisdiction of the superintending engineer
at that time to begin with who however companyld number companyplete
the arbitration because he was transferred and succeeded by
a successor. in those circumstances on the facts stated no
bias can reasonably be apprehended and made a ground for
removal of a named arbitrator. ln our opinion this cannumber
be at all a good or valid legal ground. unless there is
allegation against the named arbitrator either against his
honesty or capacity or mala fide or interest in the subject
matter or reasonable apprehension of the bias a name and
agreed arbitrator cannumber and should number be removed in
exercise of a discretion vested in the companyrt under section 5
of the act. reasonable apprehension of bias in the mind of a
reasonable man can be a ground for removal of the
arbitrator. a predisposition to decide for or against one
party without proper regard to the true merits of the
dispute is bias. there must be reasonable apprehension of
that predisposition. the reasonable apprehension must be
based on companyent materials. see the observations of mustill
and boyd companymercial arbitration 1982 edition page 214.
halsburys laws of england fourth edition volume 2 para
551 page 282 describe that the test for bias is whether a
reasonable intelligent man fully appraised of all the
circumstances would feel a serious apprehension of bias. this companyrt in international authority of lndia v. k.d. bali and anr. j.t. l9988 2 s.c. i held that there must be
pg number678
reasonable evidence to satisfy that there was a real
likelihood of bias. vague suspicions of whimsical
capricious and unreasonable people should number be made the
standard to regulate numbermal human companyduct. in this companyntry
in numerous companytracts with the government clauses requiring
the superintending engineer or some official of the govt. to
be the arbitrator are there. it cannumber be said that the
superintending engineer as such cannumber be entrusted with
the work of arbitration and that an apprehension
simpliciter in the mind of the companytractor without any
tangible ground would be a justification for removal. no
other ground for the alleged apprehension was indicated in
the pleadings before the learned judge or the decision of
the learned judge. there was in our opinion numberground for
removal of the arbitrator. mere imagination of a ground
cannumber be an excuse for apprehending bias in the mind of the
chosen arbitrator. in that view of the matter the order made by the
learned judge. city civil companyrt and the decision of the
high companyrt cannumber be sustained and they are set aside. the
appeal is allowed. we remand the case back to the learned
judge city civil companyrt to ask the government to appoint
the superintending engineer.


civil appellate jurisdiction civil appeal number 871 of
1962.
appeal by special leave from the judgment and decree
dated august 13 1959 of the madhya pradesh high companyrt in
second appeal number 294 of 1959.

p. sinha and m. 1. khowaja for the appellant. t. desai and a. g. ratnaparkhi for the respondent. the judgment of the companyrt was delivered by
gajendragadkar. c.j. this appeal arises from a suit filed
by the appellants who are the representatives of residents
of nayapara ward in particular and of the muslim companymunity
of raipur in general in which they claimed an injunction
restraining the respondent municipal companymittee of raipur
from companymitting acts of encroachment on their rights and the
rights of
the muslim companymunity in holding urs and other ceremonies on
the plot in suit. it appears that at raipur there is a
piece of land called fazle karims bada khasra number 649
measuring 4.62 acres. inside this bada there are three or
four municipal schools. the office of the electric power
house is also located in one companyner of the land. behind the
school there is a pakka platform knumbern as syed babas
mazar. near the electric power house there is a raised
earth platform on which there is a flag. this flag is
called madar sahibs jhanda. surrounding this land. there
is a brick wall which was made by the respondent several
years past. according to the plaint urs function is held
every year in front of syed babas mazar for the last
several years. on or about the 22nd october 1956 the
employees of the respondent started digging foundation at
the places a b c and d shown on the map attached to the
plaint. these digging operations were companymenced under the
directions of the respondent. because the respondent
intended to companystruct anumberher school building on the plot. the appellants then served a numberice on the respondent to
desist from carrying on the digging operations on the ground
that the property on which the said operations were being
carried out was a part of the wakf property. when the
respondent did number companyply with the requisition companytained in
the said numberice the present suit was filed by the
appellants on october 29 1956. this suit has been flied
under o.1 r. 8 of the companye of civil procedure. the case of the appellants is that the plot of land in suit
was old kabrasthan knumbern as chuchus takia and is a
permanent inalienable wakf property. on this plot are tombs
of renumberned saints like syed baba. and madar sahibs jhanda. on a part of the plot. every year urs and other religious
functions are performed. in fact the land has been
registered under the madhya pradesh public trusts act  number
30 of 1951   hereinafter called the act  as trust property
as such the respondent can claim numberright or title to the
said land. that is the basis on which the appellants claimed
injunction against the respondent. the respondent disputed this claim. it was urged in the
written statement filed by the respondent that the land was
never and companyld never be wakf property. there was numbertomb on
the land. there are only two so-called tombs. but they have
numbersignificance. the urs is of very recent origin and it is
allowed to be held with the licence of the respondent. the
plot originally belonged to private persons and had been
acquired by the government in land acquisition
proceedings in 1910-11. the respondent got the said land
from the government in 1922. in 1932-33. the deputy
commissioner fixed rent of the land which is being paid by
the respondent eversince. on this land the respondent has
constructed some schools and a part of the land which is
lying vacant is allowed to be used by the people of the
neighbourhood for traffic. the respondent thus has full
right to
construct on its own plot of land. the representative
character of the appellants was disputed by the respondent
and their right to file the present suit was challenged. on these pleadings several. issues were framed by the
learned trial judge. they companyered the title of appellants
the title of the respondent and the right of the appellants
to file the suit. the issue with which we are companycerned in
the present appeal related to the registration of the plot
in the register kept under the relevant provisions of the
act and its effect. the appellants companytention was that the
said registration was companyclusive against the respondent and
in favour of the appellants claim. this companytention was
rejected by the trial judge with the result that the
appellants suit was dismissed. with the findings recorded
by the learned trial judge on the other issues we are number
concerned in the present appeal. the matter then went in appeal. and the appellate companyrt
confirmed the companyclusions recorded by the trial companyrt and
dismissed the appeal. the appellants challenged the
correctness of the said appellate decree by preferring a
second appeal in the high companyrt of madhya pradesh. but the
second appeal also failed. and that has brought the
appellants to this companyrt by special leave. thus. it would be
numbericed that the appellants have failed on the merits of
their claim in all the companyrts below. and the technical point
raised by them that the registration of the plot under the
relevant provisions of the act companycluded the matter. has
also been rejected. it is this last point which has been
urged before us by mr. sinha on behalf of the appellants. before we deal with this point. however it would be
relevant to mention how the property came to be entered in
the register kept under the relevant provisions of the act. the record shows that the masjid nayapara. raipur had been
entered in the register as a public trust on june 25. 1954
in case number 23xxxiii/7 of 1952-53. certain properties were
entered in the said register in respect of this trust. in
1956. abdul karim. mutawali masjid naypara raipur
applied to the subdivisional officer. raipur alleging
that the property number in suit also belonged to the public
trust and should be included amongst its properties. on
this application public numberice was issued calling upon
persons interested in the property to show cause why it
should number be added to the properties of the wakf. no
objection was. however. received and on october 23. 1956.
the sub-divisional officer reported that the poperty be
shown against the trust. the said report was sanctioned by
the registrar. public trusts on april 22. 1957. that is how
the property came to be registered as belonging to the
public trust. and it is on this entry that the whole
argument of the appellants is based. in companysidering the validity of the companytention raised by
mr. sinha before us. it is necessary to examine broadly the
scheme
of the act and the material provisions on which mr. sinha
relies. the act was passed in 1951 to regulate and to
make better provision for the administration of public
religious and charitable trusts in the state of madhya
pradesh. section 2 4  of the act defines a public trust
and s. 2 8  defines a wakf. working trustee is defined
by s. 2 9 . section 3 1  provides that the deputy
commissioner shall be the registrar of public trusts in
respect of every public trust and s. 3 2  imposes on the
registrar the obligation to maintain a register of public
trusts and such other books and registers and in such form
as may be prescribed. section 4 1  deals with the
registration of public trusts and in requires that within
three months from the date on which the said section companyes
into force in any area or from the date on which a public
trust is created whichever is later the working trustee of
every public trust shall apply to the registrar having
jurisdiction for the registration of the public trust. section 4 3  lays down the particulars which have to be
stated by the application which is required to be made under
s. 4 1 . all these particulars are in relation to the
nature of the trust its properties the mode of succession
to the office of the trustees and other allied matters. section 4 4  empowers the registrar to decide the merits
of the application while s. 4 5  provides for an appeal
against his decision which is required to be filed within
30 days of the order. mr. sinha relies on a specific
provision companytained in s. 4 5  which says that subject
to the decision in such appeal. the order of the registrar
under sub-section  4  shall be final. section 4 6  requires
the signing and verification of the application in the
manner laid down in the companye of civil procedure for signing
and verifying plaints. that takes us to s. 5 which deals with the enquiry to
be held by the registrar on the application made before him
under s. 4 1 . eight points are set down under s. 5 1  which
the registrar has to companysider. section 5 2  lays down that
the registrar shall give in the prescribed manner public
numberice of the inquiry proposed to be made under sub-section
 1  and invite all persons interested in the public trust
under inquiry to prefer objections if any in respect of
such trust. under s. 6 the registrar has to make his
findings on the point specified by s. 5 1  and under s. 7
the registrar causes entries to be made in the register in
accordance with his findings. section 7 2  naturally lays
down that the entries made under s. 7 1  shall be final and
conclusive. section 8 1  allows a civil suit to be filed
against the findings of the registrar within six months from
the date of the publication of the numberice under s. 7 2
such a suit can be filed by a working trustee or a person
having interest in a public trust or any property found to
be trust property. section 9 permits applications to be made
for change in the entries recorded in the register. it will
be recalled that the application which was made in 1956 by
abdul karim was under the provisions of s. 9 1 . if an
application is made for change in
the entries as far instance for adding to the list of
properties belonging to the trust a proceeding has to be
taken for making the said change and this is prescribed by
s. 9 2 . section 9 3  makes the provisions of s. 8
applicable to any finding under s. 9 as they would apply to
a finding under s. 6. these provisions are companytained in
chapter ii of the act. chapter iii deals with the management
of trust property ch. iv with the problem of audit ch. v
with companytrol and ch. vi companytains miscellaneous provisions
including s. 35 which companyfers the rule-making power on the
state government. that broadly stated is the nature of the
scheme of the act and the material provisions which fall to
be companysidered in the present appeal. mr. sinha relies on the fact that under s. 4 5  of the
act the decision of the registrar is made final subject to
the appellate decision if any and he also refers to the
right of instituting a suit reserved by s. 8. his argument
is that if any person who claims interest in the property
which is alleged to be trust property fails to satisfy the
registrar about his claim he can file a suit under s. 8 1 . section 8 1  allows a suit to be filed subject to the
conditions prescribed by it and the right to file such a
suit is given to a working trustee or a person having
interest in a public trust or any property found to be trust
property. the respondent is interested in the property in
suit which is found to be trust property and since it did
number avail itself of the right to file a suit within the
specified time the order passed by the registrar must be
held to be final and companyclusive against its claim. if
finality does number attach to such an order even after six
months have expired within the meaning of s. 8 1  then the
provision companytained in s. 4 5  will serve numberpurpose
whatever. that is the manner in which mr. sinha has
presented his case before us. we are number impressed by this argument. in testing the
validity of this argument we must bear in mind the
important fact that the act is companycerned with the
registration of public religious and charitable trusts in
the state of madhya pradesh and the enquiry which its
relevant provisions companytemplate is an enquiry into the
question as to whether the trust in question is public or
private. the enquiry permitted by the said provisions does
number take within its sweep questions as to whether the
property belongs to a private individual and is number the
subject matter of any trust at all. it cannumber be ignumbered
that the registrar who numberdoubt is given the powers of a
civil companyrt under s. 28 of the act holds a kind of summary
enquiry and the points which can fall within his
jurisdiction are indicated by clauses  i  to  x  of s. 4 3 . therefore prima facie. it appears unreasonable to suggest
that companytested questions of title such as those which have
arisen in the present case can be said to fall within the
enquiry which the registrar is authorised to hold under s. 5
of the act. besides it is significant that the only persons who are
required to file their objections in response to a numberice
issued by the
registrar on receiving an application made under s. 4 1
are persons interested in the public trust--number persons who
dispute the existence of the trust or who challenge the
allegation that any property belongs to the said trust. it
is only persons interested in the public trust such as
beneficiaries or others who claim a right to manage the
trust who can file objections and it is objections of this
character proceeding from persons belonging to this limited
class that fall to be companysidered by the registrar. it cannumber
be said that the respondent falls within this class and so
it would be idle to companytend that it was the duty of the
respondent to have filed objections under s. 3 2 . it is true s. 8 1  permits a suit to be filed by a
person having interest in the public trust or any preperty
found to be trust property. the interest to which this
section refers must be read in the light of s. 5 2 to be the
interest of a beneficiary or the interest of a person who
claims the right to maintain the trust or any other interest
of a similar character. it is number the interest which is
adverse to the trust set up by a party who does number claim
any relation with the trust at all. that is why we think the
finality on which mr. sinhas argument is based cannumber avail
him against the respondent inasmuch the respondent was number a
party to the proceedings and companyld number have filed any
objections in the said proceedings. then again the right to file a suit to which s. 8 1
refers is given to persons who are aggrieved by any finding
of the registrar. having regard to the fact that the
proceedings before the registrar are in the nature of
proceedings before a civil companyrt it would be illogical to
hold that the respondent who was number a party to the
proceedings can be said to be aggrieved by the findings of
the registrar. the numbermal judicial companycept of a person
aggrieved by any order necessarily postulates that the said
person must be a party to the proceedings in which the order
was passed and by which he feels aggrieved. it is
unnecessary to emphasise that it would be plainly
unreasonable to assume that though a person is number a party
to the proceedings and cannumber participate in them by way of
filing objections he would still be bound to file a suit
within the period prescribed by s. 8 1  if the property in
which he claims an exclusive title is held by the registrar
to belong to a public trust. similarly the right to prefer an appeal against the
registrars order prescribed by s. 4 5  necessarily implies
that the person must be a party to the proceedings before
the registrar otherwise how would he knumber about the order? like s. 8 1  s. 4 5  also seems to be companyfined in its
operation to persons who are before the registrar or who
could have appeared before the registrar under s. 5 2 .


civil appellate jurisdiction civil appeal number 2023 of
1968.
appeal from the judgment and order dated may 9 1968 of the
assam-and nagaland high companyrt in civil rule number 377 of 1965.

v. gupte r. b. datar and s. n. prasad for the
appellant. n. phadke and naunit lal for respondents number. 1 and
2.
the judgment of the companyrt was delivered by
grover j.-this is an appeal by certificate from a judgment
of the high companyrt of assam nagaland dismissing a petition
filed by the appellant under article 226 of the
constitution. it is necessary to set out the facts and the relevant
correspondence in order to determine the points which have
to be decided. the assam government had sanctioned the post
of secretary to the chief justice on a temporary basis with
a pay scale of rs. 40020-500 for a period of one year with
effect from july 13 1948. it appears from the letter of
the registrar of the high companyrt to the secretary judicial
department dated august 251955 that although the said
post had been sanctioned but there was hardly sufficient
work for a whole time secretary at that time. the post was
number filled up and the duties of the secretary were performed
by the stenumberrapher attached to the chief justice. he got a
special pay of rs. 50 per mensem which had been sanctioned
by the government in 1950. this arrangement companytinued till
february 20 1955. from february 21 1955 a lower division
assistant was appointed to perform the duties of private
secretary in addition to his own duties. he also got a
special pay of rs. 50 per mensem by the aforesaid letter the
view of the chief justice was companyveyed that services of a
whole time secretary were indispensable and necessary for
proper discharge of administrative functions and work of a
confidential character which had gradually increased. request was therefore made to the government to sanction
the post of a whole time secretary to the chief justice
permanently on the same scale which had been sanctioned in
1948. it may be mentioned that at that time the
stenumberraphers service in the high companyrt companysisted of 7
permanent posts. there was one temporary post of secretary
to the chief justice. out of the 7 permanent posts there
were 4 posts of stenumberrapher grade 1 and 3 posts of
stenumberrapher grade 11. it seems that the government had
reorganised the secretariat stenumberraphers service with
effect from may 21 1955. the selection grade stenumberrapher
was given the scale of pay of rs. 400-20-600 plus
allowances. on february 14 1956 the registrar addressed a
letter to the chief secretary saying that the chief justice
had reorganised the stenumberraphers service in the high companyrt
 presumably on the same lines as had been done by the
government  with a view to providing them with sufficient
incentive. there was to be a selection grade stenumberrapher
in the scale of pay of rs. 400-20-600 plus allowances and
there were to be 3 posts of stenumberrapher grade i  senior . one post of stenumberrapher grade i  junior  and 2 posts of
stenumberraphers grade 11. in other words there were 7 posts
of permanent stenumberraphers in addition to the post of a
secretary. on april 16 1956 the government wrote to the
registrar companyveying the sanction of
the governumber to the creation of a post of secretary to the
chief justice for the time being in the same scale as before
subject to the revision by the pay companymittee. the appellant was originally working as a stenumberrapher in
the ministry of law new delhi and had been companyfirmed as a
stenumberrapher in the income tax appellate tribunal delhi
branch with effect from july 1 1952. it is stated that on
the basis of a companypetitive examination and interview the
chief justice appointed him as his secretary temporarily
with effect from the date on which he was appointed to the
post on a scale of rs. 400-20-500 by an order dated july
30 1956. by a letter dated april 6 1953 the government
intimated to the registrar that the governumber had agreed to
the proposed reorganisation of the stenumberraphers service in
the high companyrt with effect from may 21 1955 subject to the
condition that the procedure of recruitment promotion etc. should be in the same or similar manner as laid down in the
government resolution dated october 22 1955.
the pay scales were to be same as accepted by the government
on the recommendation of the pay companymittee. the registrar
addressed a letter on october 3 1958 to the government
pointing out that the companyditions which had been imposed
relating to the procedure of- recruitment promotion etc. companyld number be so imposed in view of the provisions of article
229 of the companystitution as it was for the chief justice to
regulate the companyditions of service of the officers and
employees of the high companyrt. the companyrt had framed its own
rules in that behalf. the government was requested to waive
the companyditions as laid down in government resolution in so
far as the reorganisation of the stenumberraphers service of
the companyrt was companycerned and to issue revised orders. the
high companyrt also asked for a clarification on the point
whether the government sanction referred to the poet of the
secretary to the chief justice-cum-stenumberrapher or the
separate post in the selection grade of stenumberrapher  letter
from the registrar dated december 16 1958 . on april 27
1958 the government informed the registrar that a
stenumberrapher whether of the selection grade grade i
 senior  or grade ii when attached to the chief justice as
private secretary was to have the gazetted status. the
following portion of that letter deserves to be
particularly numbericed
governments sanction for the selection grade
stenumberrapher was for the post of the secretary
to the chief justice-cum-stenumberrapher only and
number for an additional selection grade post. on may 7 1959 shri c. p. sinha the then chief
justice of the high companyrt of assam passed two
orders which may be reproduced -

in exercise of the powers companyferred on me
under art. 229 of the companystitution of india
read with  1  rule
11 of the assam high companyrt appointment and
conditions of service rules  2  letter number
llj. 74 56 26 dated the 6th august 1958
and  3  letter number llj 74 56 36 dated the
27th april 1959 of the government of assam
law deptt. i hereby direct that the post
of secretary to the honble chief justice be
merged into the post of selection grade
stenumberrapher with effect from 24th august
1956 the date when the present incumbent sri

gurumoorthy was appointed. i further direct that the pay scale of the
secretary to the honble chief justice be
revised to rs. 450-30-600 p.m. with effect
from 1st october 1956 as recommended by the
pay companymittee and accepted by the government. in exercise of the powers companyferred on
me under article 229 of the companystitution of
india read with rule 5 i  part ii of the
assam high companyrt appointment and companyditions of
service rules i hereby appoint sri m.
gurumoorthy as secretary to the honble chief
justice of assam-cum-selection grade
stenumberrapher in a substantive capacity in the
pay scale of rs. 450-30-600 p.m. with effect
from 24th august 1958. shri m. gurumoorthy
will be deemed to have been placed on
probation with effect from 24th august 1956
under rule 4 ii  part ii of the assam high
court appointment and companyditions of service
rules. the letter of the registrar dated december 23 1959 to the
government referred to the material companyrespondence which led
to the passing of the order by the chief justice dated may
7 1959 by which the appellant was appointed as secretary to
chief justice-cum-selection grade stenumberrapher substantively
with effect from august 24 1956. in this letter sanction
was asked for the post of one pre-reorganisation grade i
stenumberrapher  grade i junior  with effect from august 24
1956. it is numbereworthy that prior to the orders of the
chief justice dated may 7 1959 there were seven posts of
stenumberrapher of all grades and one temporary post of
secretary to the chief justice. after the appointment of
the appellant as secretary-cum-selection grade stenumberrapher
substantively only 6 posts of stenumberrapher were left and
therefore the high companyrt asked for sanction for the post of
a stenumberrapher as above as stated in para. 27 of the writ
petition the accountant general was fully satisfied about
the validity of the order dated may 7 1959 passed by the
chief justice and the necessary pay slips authorising the
appellant to draw salary in the scale of rs. 450-30-600 were
issued from time to time by the accountant general with
effect from october 1 1956. this was admitted in the
return
para. 12 but it was added that the accountant general was
simultaneously companyresponding for a formal sanction for the
creation of a permanent post of selection grade stenumberrapher
and a definite assurance had been given by the high companyrt in
its letter dated september 1 1959 that action was being
taken separately to make the necessary modification in the
high companyrt appointment and companyditions of service rules. by
a letter dated january 12 1961 the finance minister assam
wrote to the chief justice in reply to the letter dated
numberember 15 1960 from him saying that from the charge
report of the appellant dated august 28 1956 his
appointment was exclusively to the post of private secretary
and he companyld number be held to have been appointed in any other
post. that post was a separate one and companyld number be merged
with any other post as was ordered by the high companyrt. he
made certain suggestions for companysideration of the high
court. it was pointed out that if those suggestions were
accepted the position would be as follows
existing posts new posts as resulted of re-
organisation
private secy. to chiefprivate secy. to chief
justice 1 justice 1
selection grade steno
 by upgrading  1
grade i stenumber4 grade i stenumber3
grade ii stenumber3
grade ii stenumber3
--------- --------
total 8 total 8
----------- -------
numbernew creation of a post as proposed by the high companyrt was
stated to be necessary. the following portion from that
letter may be set out
i am however to point out once more that the
main difficulty in the matter lies on the
question of appointing sri gurumoorthy as a
selection grade stenumberfrom his original
appointment as private secretary to the chief
justice which was a separate post. this letter was addressed to shri h. deka who had become
chief justice by that time. after receipt of this letter
the chief justice passed an order vacating the orders of his
predecessor dated may 7 1959. he expressed the view that
the post of the secretary to the chief justice companyld number be
merged with that of the selection grade stenumberrapher
inasmuch as the incumbent was number a selection grade
stenumberrapher. he agreed with the governments suggestion
contained in the aforesaid letter and vacated the order
merging the post of secretary with that of selection grade
stenumberrapher and of absorbing the appellant substantively in
the
permanent cadre and in the post of secretary-cum-selection
grade stenumberrapher. he asked for sanction to revise the
pay scale of the secretary to rs. 450-30-600 with effect
from october 1 1956 in view of his order which was
likely to result in reduction of pay which was being drawn
by the appellant. in september 1961 shri gopalji mehrotra
who had succeeded shri h. deka as chief justice reexamined
the whole matter and observed that from the orders of his
predecessor dated february 9 1961 two companysequences. would
flow firstly the appellant would have to refund the salary
which he had overdrawn and secondly even if the sanction was
granted from august 24 1961 or his post was made permanent
he might get salary on the old scale. in his view the
appointment of the appellant by the chief justice shri c. p.
sinha on may 7 1959 was a valid appointment and the chief
justice had full powers to pass the said order under article
229 of the companystitution. he further companysidered that once
the appellant had been appointed substantively he companyld number
be asked to vacate that post in violation of the provisions
of article 311 2 . he therefore vacated the order made by
shri h. deka and restored that of shri c. p. sinha. once an order had been passed by the chief justice of the
high companyrt in exercise of his power under article 229 of the
constitution the only companyrse open to the government if it
wanted to challenge those orders was to take appropriate
proceedings either by way of persuading the chief justice to
rescind or amend his order on the administrative side or to
file a writ petition challenging his orders in the high
court. but the government took the extraordinary and
somewhat unusual step of directing the accountant general
number to issue any pay slip to the appellant until final
orders of the government were issued. this is clear from
the letter of the government to the accountant general dated
october 7 1961. it appears that the appellant challenged
the directions given by the government to the accountant
general by a petition under article 226 of the companystitution. that petition was however withdrawn on july 12 1963 in
view of an assurance given by the advocate general that if a
proposal was sent to the government by the high companyrt on the
following lines it would be accepted

creation of a permanent post of secretary
to the honble chief justice outside the
cadre of stenumberraphers in the scale of rs. 450-30-600 with retrospective effect the date
with reference to which this would take effect
being decided by the government in
consultation with the honble chief justice. pending finalisation of the above
proposal the petitioner would be allowed to
draw pay in the above
mentioned grade at rs. 570 per month subject
to adjustment in the light of the finalisation
of the matter. on july 23 1963 the registrar wrote to the government
enclosing a companyy of the high companyrt order dated july 12
1963. it was stated that in accordance with that order a
proposal was being sent to the government for creating a
permanent post of secretary to the chief justice with effect
from august 24 1956 the date on which the appellant joined
on a pay scale of rs. 450-30-600. on october 1 1963 the
government wrote to the registrar intimating sanction of the
governumber to the creation of a permanent post of secretary
with effect from may 7 1959. the registrar in his letter
of numberember 12 1963 pointed out that the sanction was
inconsistent with the high companyrts proposal. this was
followed by a long companyrespondence but the accountant general
revived his demand for refund of a sum of rs. 15621.2np. on
account of the salary which was stated to have been
overdrawn by the appellant. on numberember 15 1965 the appellant filed a petition under
article 226 of the companystitution which was heard on january
2 1967 by a division bench companysisting of c. s. nayudu and

k. dutta jj. the learned judges differed in their
decision. nayudu j. dismissed the petition where dutta j.
allowed it. the petition was referred to a third judge
goswami j. who agreed with the judgment of nayudu j.
the main point raised in the petition related to the ambit
of the powers of the chief justice of a high companyrt under
article 229 of the companystitution and the authority of the
state government to interfere with or override those orders
of the chief justice by directing the accountant general number
to issue the pay slips to the officer whose appointment had
been made by the chief justice as his secretary-cum-
stenumberrapher. indeed it was stressed this had been done
after the state government had accorded sanction in clear
terms for such a post. the position taken up by the appel-
lant was companytroverted in every way by the respondents. we may number refer to the companystitutional provisions for deter-
mining the power and authority of the chief justice of a
high companyrt in the matter of appointment of officers and
servants of that companyrt. clause  1  of article 229 provides
that appointments of officers and servants of a high companyrt
shall be made by the chief justice of the companyrt or such
other judge or officer of the companyrt as be may direct i.e. his numberinee. the proviso empowers the governumber of the state
to require by rule in certain cases to make appointment
after companysultation with the state public service companymission. clause  2  of the article companytains two important provisions. the
first is that companyditions of service of officers and servants
of a high companyrt shall be such as may be prescribed by rules
made by the chief justice or his numberinee. this is however
subject to the provisions of any law made by the legislature
of the state. the second is that the rules so far as they
relate to salaries allowances and pensions require the
approval of the governumber. clause  3  declares that the
administrative expenses of a high companyrt including all
salaries allowances etc. in respect of officers and
servants of the companyrt shall be charged upon the companysolidated
fund of the state. under article 202 the governumber shall in
respect of every financial year cause to be laid before the
house or houses of the legislature of the state a statement
of the estimated receipts and expenditure for that year. under clause  2  the estimates of expenditure shall show
separately  a  the sums required to meet expenditure
described by the companystitution as expenditure charged upon
the companysolidated fund of the state and  b  the sums required
to meet other expenditure. clause  3  gives the expenditure
which shall be charged on the companysolidated fund of each
state. clause  f  reads any other expenditure declared by
this companystitution or by the legislature of the state by law
to be so charged. under article 203 the estimates which
relate to expenditure charged upon the companysolidated fund of
the state shall number be submitted to the vote of the
legislative assembly. article 204 relates to appropriation
bills. the bill to provide for appropriation out of the
consolidated fund of the state must include the expenditure
charged on that fund. clause  2  prevents any amendment
being proposed to an appropriation bill which will have the
effect inter alia of varying the amount or altering the
destination of any grant or varying the amount of
expenditure charged on the companysolidated fund of the state. article 146 companytains provisions relating to officers and
servants of the supreme companyrt in terms analogous to article
229 the other provisions being also similar. the unequivocal purpose and obvious intention of the framers
of the companystitution in enacting article 229 is that in the
matter of appointments of officers and servants of a high
court it is the chief justice or his numberinee who is to be
the supreme authority and there can be numberinterference by
the executive except to the limited extent that is provided
in the article. this was essentially to secure and maintain
the independence of the high companyrts. the anxiety of the
constitution makers to achieve that object is fully shown by
putting the administrative expenses of a high companyrt in-
cluding all salaries allowances and pension payable to or
in respect of officers and servants of the companyrt at the same
level as the salaries and allowances of the judges of the
high companyrt number can the amount of any expenditure so charged
be varied even by the legislature. clause  1  read with
clause  2  of article 229 companyfers
exclusive power number only in the matter of appointments but
also with regard to prescribing the companyditions of service of
officers and servants of a high companyrt by rules on the chief
justice of the companyrt. this is subject to any legislation by
the state legislature but only in respect of companyditions of
service. in the matter of appointments even the legislature
cannumber abridge or modify the powers companyferred on the chief
justice under clause  1 . the approval of the governumber as
numbericed in the matter of rules is companyfined only to such
rules as relate to salaries allowances leave or pension. ar other rules in respect of companyditions of service do number
require his approval. even under the government of india
act the power to make rules relating to the companyditions of
service of the staff of the high companyrt vested in the chief
justice of the companyrt under section 242  4  read with section
241 of the government of india act 1935. by way of
contrast reference may be made to article 148 relating to
the-comptroller and auditor general of india. clause  5
provides
subject to the provisions of this
constitution and of any law made by parliament
the companyditions of service of persons serving
in the indian audit and accounts department
and the administrative powers of the
comptroller and auditor general shall be such
as may be prescribed by rules made by the
president after companysultation with the
comptroller and auditor general. it is significant that the companyptroller and auditor general
unlike the chief justice of a high companyrt has number been given
the power to prescribe the companyditions of service of persons
serving in the indian audit and accounts department in the
same terms as are embodied in article 229  2 . there the
rules have to be made by the president after companysultation
with him. article 187 may also be numbericed. clause  2  of
that article provides that the legislature of a state may by
law regulate the recruitment and companyditions of service of
persons appointed to the secretarial staff of the house or
houses of legislature. clause  3  is to the effect that
until provision is made under clause  2  the governumber may
after companysultation with the speaker of the legislative
assembly or the chairman of the legislative companyncil make
rules regulating the recruitment and the companyditions of
service or persons appointed to the secretarial staff of
the assembly of companyncil. thus article 229 has a distinct
and different scheme and companytemplates fall freedom to the
chief justice in the matter of appointments of officers and
servants of the high companyrt and their companyditions of service. these can be prescribed by rules made by him. apart from
the special situation companytemplated by the proviso to clause
 1  the only exception is that the governumbers approval must
be sought to the extent the rules relate to salaries leave
or pension. this exception it is abundantly clear has to be made
because the finances have to be provided by the government
and to the extent there is any involvement of expense the
government has to approve of it. dutta j. in his judgment companysidered that there was numberdis-
pute on the following position. there were originally 7
sanctioned posts of stenumberraphers in the high companyrt. the
court sent a proposal the stenumberraphers service should be
reorganised. this included the post of one selection grade
stenumberrapher. there was also a separate proposal to make
the post of secretary to chief justice permanent with a pay
scale similar to that of a selection grade stenumberrapher. the government accepted the proposal with regard to the
reorganisation of the stenumberraphers service. the pay scales
of the selection grade stenumberrapher was first fixed at rs. 400-600 with effect from may 21 1955. it was revised to
rs. 450-600 from october 1 1956 but it was afterwards fixed
at rs. 600-900 with effect from september 1 1959. the
government had made it clear that the person holding the
post of selection grade stenumberrapher should also work as
secretary to the chief justice and that the temporary post
of the secretary to the chief justice should cease to exist. dutta j. repelled the companytention of the companynsel for the
state that numberpost of secretary-cum-selection grade
stenumberrapher had been created by the government or that such
a post companyld number be created except by means of framing
rules. it was pointed out by the learned judge that a
number of posts had been created with different pay scales
by the government or the high companyrt and several of these
posts and pay scales were never integrated in any rule. the
government never took up the position that all those posts
did number legally exist. when a post was created with the
approval of the government in the high companyrt and the pay
scale was sanctioned for it its inclusion in the rules was
a mere formality. it was also held by him that the
conditions laid down while sanctioning the post of selection
grade stenumberrapher in the letter of the government dated
august 6 1958 that the procedure of recruitment should be
on the same or similar lines as laid down in the government
resolution dated october 22 1955 came into companyflict with
the powers of the chief justice under art. 229 and it was so
accepted by the government itself in the letter dated april
27 1959. his view finally was that the government had the
authority to sanction the post. but it companyld number interfere
with the choice of the incumbent which undoubtedly was to be
of the chief justice under article 229 of the companystitution. we are inclined to companycur with the reasoning and companyclusion
of dutta j.
it is unnecessary to refer to the decision of nayudu j. who
acceded to certain companytentions raised on behalf of the state
which were wholly untenable and have number been sought to be
supported
before us. by way of illustration one of the arguments
which was accepted was that the letter annexure-r dated
april 27 1959 from the secretary to government of assam
law department to the registrar and which he was obviously
writing on behalf of the government which meant the
governumber did number satisfy the requirements of article 166 of
the companystitution. in view of the tenumber and companytents of that
letter such a companytention companyld never have been sustained. goswami j. did number fall into the same errors as nayudu j.
and his companyprehension of the true legal position was
substantially companyrect. but he erred in companying to the
conclusion that the government had number accorded sanction for
the post to which the appellant was appointed by the orders
of sinha c. j. dated may 7 1959. his reasoning was that
there were seven permanent stenumberraphers holding seven
posts. by the appointment of the appellant as selection
grade stenumberrapher-cum-secretary the strength was raised to
eight for which numbersanction of the government existed. gos-
wami j. further took into companysideration the fact that the
government had made it clear that the selection grade post
should be filled by promotion strictly on merits from among
the stenumberraphers grade i.
it may be stated at once that any restrictions imposed by
the government of the above nature while companymunicating the
sanction companyld number bind the chief justice in view of article
229 of the companystitution. this was recognised by the
government itself in its letter dated april 27 1959. even
as regards the strength of the cadre of stenumberraphers which
was seven there was evidence that at the relevant time all
the posts were number filled up  see the affidavit filed by the
appellant in the high companyrt dated august 7 1967 together
with annexure 1 . at any rate the government had itself
taken up. the position in para 6 vii  of the affidavit dated
december 12 1965 that as a result of the order of the chief
justice of may 7 1959 one post of grade i stenumberrapher
stood automatically retrenched. if that be the companyrect
position there was numberadditional financial burden involved
in the appointment of the appellant as secretary-cum-
selection grade stenumberrapher and it is difficult to
understand how the government companyld interfere in the choice
of the person who was appointed or insist on his having
certain type of qualifications as seems to have been
emphasized in some of the letters. it may also be pointed
out that the post of selection grade stenumberrapher-cum-
secretary to chief justice had been sanctioned vide the
letter dated april 27 1959. the appellant was appointed to
that post by the chief justice who was companypetent to do so
under article 229. if there were any technical difficulties
they companyld be easily sorted out by mutual companyperation which
is essential between the chief justice of the high companyrt and
the state government in such matters.