civil appellate jurisdiction civil appeals number. 2100
to 2102 of 1964.
appeals by special leave from the judgments and orders  1
dated the 16th june 1966 of the special industrial
tribunal delhi in reference number 53 of 1966  delhi
administration  and  ii  and  iii  dated the 13th july 1966
and 12th august 1966 of the punjab high companyrt  circuit
bench  at delhi in civil writ petitions number. 488-d and 122
of 1966 respectively. c. setalvad g. b. pai rameshwar dial and rameshwar
nath for the appellant  in all the appeals . s. r. chari and m. k. ramamurthi for respondent number 1
 a   in all the three appeals . venkatakrishnan and n. k. bhatt for respondent number 1
 in all the three appeals . c. shubh ram kishan and s. s. khanduja for respondent
number 1 c   in all the three appeals . s. r. chari d. k. aggarwal and m. v. goswami for res-
pondents number. 1 d  and 1 e   in all the three appeals . r. gupta and h. k. puri for respondent number 2  in all
the three appeals . s. khanduja for respondent number 2  in all the three
appeals

v. goswami for respondent number 3 a   in all the three
appeals . the judgment of the companyrt was delivered by
mitter j. on march 4 1966 an order under s. 10 1  and s.
12 5  of the industrial disputes act  hereinafter referred
to as the act  was passed over the signature of secretary
 industries and labour  delhi administration delhi
referring to the special industrial tribunal certain matters
setforth in the schedule
annexed thereto for adjudication. according to the recitals
in the order it appeared to the delhi administration from a
report submitted by the companyciliation officer under s. 12 4
of the act that an industrial dispute existed between the
managements of delhi cloth mills and swatantra bharat mills
and their workmen represented by four different unions and
the chief companymissioner delhi was satisfied on a
consideration of the said report that the said dispute
should be referred to an industrial tribunal. the terms of
reference specified in the schedule are reproduced below

whether in calculating the bonus table for
the accounting year ending 30-6-1965 the
allocations separately made by the delhi cloth
general mills company limited towards the capital
and reserves of the delhi cloth mills and
swatantra bharat mills the two units of the
company is fair and reasonable? if number what
directions are necessary in this regard ? whether the workmen of these mills are
entitled to bonus at a rate higher than 6 per
cent of the wages for the accounting year
ending 30-6-1965? if so what directions are
necessary in this regard? whether the strike at the delhi cloth
mills and the lock-out declared by the
management on the 24-2-1966 are justified and
legal and whether the workmen are entitled to
wages for the period of the lock-out? whether the sit-down strike at the
swatantra bharat mills from 23-2-1966 is
justified and legal and whether the workmen
are entitled to wages during the period of the
strike? the report of the companyciliation officer shows that trouble
had arisen over the claim of bonus in the delhi cloth and
general mills and swatantra bharat mills two units of the
same companypany. the report also shows that at a meeting
convened at 2-30 p.m. on february 23 1966 the works
committee recommended that the payment of bonus should be
suspended pending examination of the entire issue in
conciliation or otherwise. but before this companyld be
annumbernced workers started demonstration outside the mill
premises of the first named unit and became violent. to
quote from the report
as the situation became tense inside the mill
premises and the workers left work the
management closed down the turbine at about 4
p.m. on 23-2-1966. later on at about 11-00
p.m. the management put up a numberice that in
view of the prevailing circumstances in the
mills it was number possible to work the mills
until companyditions become numbermal as
there was numberimprovement in the situation and
as workers who were inside the mills were
reported to have caused further damage to the
mill property the management declared a
lockout at about 6 p.m. on 24th february
1966.  the workers however are very
much restive over the managements declaration
of lock-out. with regard to swatantra bharat mills the
report runs
 the situation is peaceful although
the workers resorted to the stay-in-strike
from 7.30 p.m. on the 23rd february 1966 and
the strike still companytinues. it appears that
their attitude is that whatever is decided at
the d.c.m. level will automatically be
applicable to them as well. the workers do
number seem to be in a mood to start the work
unless the workers of the delhi cloth mills
also start work. the recommendation in the report was that the dispute should
be immediately referred to a tribunal for adjudication along
with the issue of prohibitory orders under s. 10 3  of the
act. the report numberes that the unions leaders had pressed
that the question of workers claim for wages for the strike
period in the swatantra bharat mills and lock-out period in
the delhi cloth mills should also be included and the
tribunal to be companystituted should proceed immediately in the
matter. the management filed a statement of case before the special
tribunal on april 9 1966 and the unions filed separate
statements of case between april 10 1966 and april 13
1966. there were replications and rejoinders up to may 21
1966.
on june 3 1966 the companypany prayed before the industrial
tribunal that issues 1 3 and 4  set out in the terms of
reference  may be decided before the parties were called
upon to lead their evidence. as regards issues 3 and 4 the
contention of the management was that the fundamental basis
of these two matters was that there was a strike at the
delhi cloth mills and a sit-down strike at the swatantra
bharat mills and the only question referred to the tribunal
for decision related to the legality and justification of
the said strikes. all the four unions companytended before the
tribunal that there was numberstrike at the delhi cloth mills. two of the unions case was that the strike at swatantra
bharat mills was in sympathy with the workmen of the delhi
cloth mills while the other two unions case was that there
was a lock-out in the swatantra bharat mills. as regards
the first issue the case of the management was that there
was a settlement on december 13 1965 relating to the
computation of bonus for the year 1963-64 between the
company and the two major unions. it was stated further
that the settlement referred to the companyputation of bonus in
accordance with the provisions of the payment of bonus act
1965 and in arriv-
ing at the settlement all the available and relevant
financial statements had been shown to the unions which
accepted the accounts based on allocation of share capital
and reserves during the years previous to and including
1963-64. further according to the management one of the
unions had entered into anumberher settlement with the
management of the d.c.m. silk mills with regard to that
union for the year 1964-65 and in view of these
settlements it was number open to the workmen of the delhi
cloth mills and swatantra bharat mills to question the
correctness and reasonableness of the allocations made by
the management towards share capital and reserves of these
two units. the tribunal companysidered the pleas put forward before it and
several decisions cited in support and came to the
conclusion that as the strike companyered by issue number 3 and
sit-down strike companyered by issue number 4 were disputed by the
unions or at any rate number admitted by all of them it would
be the duty of the tribunal to decide whether there was a
strike at d.c.m. as companyered by issue number 3 and whether there
was a sit-down strike by s.b.m. as companyered by issue number 4.
according to the tribunal it would number be exceeding its
jurisdiction at all and would number be going beyond the scope
and ambit of the reference to examine issues 3 and 4 in the
above light and accordingly the tribunal held that the
parties would be at liberty to adduce such evidence as they
liked in companyfirmation or denial of the fact of a strike and
sit-down strike regarding issues 3 and 4.
as regards issue number 1 also the tribunal over-ruled the
plea of the management and held that it would be open to the
parties to adduce evidence regarding this issue and if in
course thereof it was found that as a result of the
settlements referred to by the management the claim was
barred the same would number be allowed this decision of the
tribunal was annumbernced on june 16 1966.
the management moved a writ petition before the punjab high
court on june 30 1966 for quashing the order of 16th june
by a writ of certiorari. by an order dated july 13 1966
the petition was summarily dismissed. by an application
under art. 133 1  of the companystitution the management moved
the punjab high companyrt for leave to appeal to the supreme
court. this was also dismissed in limine on august 12
1966. the management then moved three special leave
petitions number. 1068 to 1070 of 1966 before this companyrt one
from the order of the tribunal the second from the order of
the high companyrt dated july 13 1966 and the third also from
the order of the high companyrt dated august 12 1966. by an
order made on september 12 1966 special leave was granted
in all these three petitions. all these have number companye up
for hearing before us. proceeding in the order in which the arguments were
addressed we propose to deal with issues 3 and 4 first. under s. 10 1   d
of the act it is open to the appropriate government when it
is of opinion that any industrial dispute exists to make an
order in writing referring the dispute or any matter
appearing to be companynected with or relevant to the
dispute to a tribunal for adjudication. under s.
10 4  where in an order referring an industrial dispute to
a labour companyrt tribunal or national tribunal under this
section or in a subsequent order the appropriate government
has specified the points of dispute for adjudication the
labour companyrt or the tribunal or the national tribunal as
the case may be shall companyfine its adjudication to those
points and matters incidental thereto. from the above it therefore appears that while it is open to
the appropriate government to refer the dispute or any
matter appearing to be companynected therewith for adjudication
the tribunal must companyfine its adjudication to the points of
dispute referred and matters incidental thereto. in other
words the tribunal is number free to enlarge the scope of the
dispute referred to it but must companyfine its attention to the
points specifically mentioned and anything which is
incidental thereto. the word incidental means according
to websters new world dictionary
happening or likely to happen as a result of
or in companynection with something more
important being an incident casual hence
secondary or minumber but usually associated
something incidental to a dispute must therefore mean
something happening as a result of or in companynection with
the dispute or associated with the dispute. the dispute is
the fundamental thing while something incidental thereto is
an adjunct to it. something incidental therefore cannumber
cut at the root of the main thing to which it is an adjunct. in the light of the above it would appear that the third
issue was framed on the basis that there was a strike and
there was a lock-out and it was for the industrial tribunal
to examine the facts and circumstances leading to the strike
and the lockout and to companye to a decision as to whether one
or the other or both were justified. on the issue as framed
it would number be open to the workmen to question the
existence of the strike or to the management to deny the
declaration of a lock-out. the parties were to be allowed
to lead evidence to show that the strike was number justified
or that the lock-out was improper. the third issue has also
a sub-issue namely if the lock-out was number legal whether
the workmen were entitled to wages for the period of the
lock-out. similarly the fourth issue proceeds on the basis
that there was a sit-down-strike in the swatantra bharat
mills on 23-2-1966 and the question referred was as to the
propriety or legality of the same. it was number for any of
the unions to companytend on the issues as framed that there was
numbersit-down strike. on their success on the plea
of justification of the sit-down strike depended their claim
to wages for the period of the strike. apart from the companysideration of the various decisions cited
at the bar the above is the view which we would take with
regard to issues 3 and 4. we have number to examine the
decisions cited and the arguments raised and see whether it
was companypetent to the tribunal to go into the question as to
whether there was a strike at all at the delhi cloth mills
or a sit-down strike at the swatantra bharat mills or a
lock-out declared by the management on 24-2-1966.
the decisions on the point to which our attention was drawn
are as follows. in burma-shell oil storage distributing
co. of india limited ors. v. their workmen others 1  one
of the disputes referred to the fifth industrial tribunal by
the government of west bengal under s. 10 of the industrial
disputes act was a claim for bonus for 1955 payable in 1956
for the calcutta industrial area. the industrial tribunal
heard both the parties and awarded 41 months basic salary as
bonus for the year 1955 to the clerical staff and the
operatives of the companypanies. this companyrt referred to the
recital in the order of the government of west bengal and
observed that the reference was between the four appellants
and their workmen represented by the named workers union on
the other. according to this companyrt it appeared from the
record that the said union represented only the workmen in
the categories of labour service and security employees in
the calcutta industrial area and so prima facie the two
demands made by the union would companyer the claims of the
operatives alone. this companyrt also relied on the fact that
the appellants had dealt with the two categories of
employees distinctly and separately. according to gajendra-
gadkar j.  as he then was  who delivered the judgment of
the companyrt
if the reference does number include the
clerical staff and their grievances it would
number be open to the members of the clerical
staff to bring their grievances before the
tribunal by their individual applications or
for the tribunal to widen the scope of the
enquiry beyond the terms of reference by
entertaining such individual applications. accordingly it was held that the appellants
were right in companytending that the tribunal had
numberauthority to include within its award mem-
bers of the clerical staff employed by the
appellants. in express newspapers v. their workmen staff
 2  the two items of dispute specified in the
order of reference were

whether the transfer of the publication of
andhra prabha and andhra prabha
illustrated weekly to
 1  1961 2 l.l.j. 124.  2  1962 2 l.l.j. 227.
andhra prabha  private  limited in vijayawada is
justified and to what relief the workers and
the working journalists are entitled ? whether the strike of the workers and
working journalists from 27th april 1959 and
the companysequent lockout by the management of
the express newspapers  private  limited are
justified and to what relief the workers and
the working journalists are entitled? on the same day as the government of madras made the order
of reference it issued anumberher order under s. 10 3  of the
act prohibiting the companytinuance of the strike and the lock-
out in the appellant companycern. against this latter order
the appellant filed a writ petition in the madras high companyrt
and the workers also filed anumberher writ petition against the
order by which the dispute was referred to the industrial
tribunal for adjudication. in regard to the second
petition the learned single judge of the madras high companyrt
held on the merits that what the appellant had done did number
amount to a lock-out but a closure and so the substantial
part of the dispute between the parties did number amount to an
industrial dispute at all. in the result he allowed the
application of the companypany in part and directed the tribunal
to deal only with the second part of the two questions
framed by the impugned reference. there was some
modification in the order by a division bench of the madras
high companyrt. the matter then came up to this companyrt. it was
held by this companyrt that the high companyrt companyld entertain the
appellants petition even at the initial stage of the
proceedings before the industrial tribunal and observed
if the action taken by the appellant is number a lockout but
is a closure bona fide and genuine the dispute which the
respondents may raise in respect of such a closure is number an
industrial dispute at all. on the other hand if in fact
and in substance it is a lock-out but the said action has
adopted the disguise of a closure and a dispute is raised in
respect of such an action it would be an industrial dispute
which industrial adjudication is companypetent to deal with. . there is numberdoubt that in law the appellant is entitled to
move the high companyrt even at the initial stage and seek to
satisfy it that the dispute is number an industrial dispute and
so the industrial tribunal has numberjurisdiction to embark
upon the proposed enquiry. it was further observed
if the industrial tribunal proceeds to assume jurisdiction
over a number-industrial dispute that can be successfully
challenged before the high companyrt by a petition for an
appropriate writ and the power of the high companyrt to issue
an appropriate writ in that behalf cannumber be questioned. m17sup.ci/66-12
it is also true that even if the dispute is tried by the
industrial tribunal at the very companymencement the
industrial tribunal will have to examine as a preliminary
issue the question as to whether the dispute referred to it
is an industrial dispute or number and the decision of this
question would inevitably depend upon the view which the
industrial tribunal may take as to whether the action taken
by the appellant is a closure or a lock-out. the finding
which the industrial tribunal may record on this preliminary
issue will decide whether it has jurisdiction to deal with
the merits of the dispute or number. the companyrt then proceeded to companysider the facts of the case
and the companytentions raised before the tribunal. it referred
to a settlement which had been reached between the parties
and embodied in a memorandum drawn up on 6th numberember 1958
under s. 12 3  of the act. this settlement was to operate
for two and half years. the case of the respondents was
that during the negotiations between the appellant and the
union in the presence of the acting labour minister and the
labour companymissioner the appellant had tried to insert a
clause in the agreement in respect of the decision that the
paper andhra prabha would number be shifted for publication to
vijayawada during the period of the settlement and that the
workmen would be companytinued to be employed as before at
madras and this was objected to by the respondent whereupon
a verbal assurance was given that the business of the
appellant would be carried on at madras for two and half
years. the respondents companytended that the said assurance
was one of the terms of the companyditions of the respondents
service and the transfer effected by the appellant
contravened and materially modified the said companydition of
service. in regard to issue 2 the argument was that in
effect the government had determined this issue and numberhing
was left for the tribunal to companysider. the companyrt observed
that the wording of this issue was in-artistic and
unfortunate and held
even so when the question of this kind is
raised before the companyrts the companyrts must
attempt to companystrue the reference number too
technically or in a pedantic manner but
fairly and reasonably. thus companystrued even
the inelegant phraseology in framing the issue
cannumber companyceal the fact that in dealing with
the issue the main point which the tribunal
will have to companysider is whether the strike of
the respondents on 27th april 1959 was
justified and whether the action of the
appellant which followed the said strike is a
lockout or amounts to a closure thus
having regard to the companytent of the dispute
covered by issue 2 it would number be right to
suggest that the reference precludes the
tribunal from entertaining the appellants
plea that what it did on 29th april is in fact
number a lock-out but a closure. the fact that the relevant action of the
appellant is called a lock-out does number mean
that the tribunal must hold it to be a lock-
out. this decision has been referred to by the tribunal as giving
it jurisdiction to examine the question as to whether there
was a strike at all. both sides have referred to this
decision in support of their respective companytentions. according to the respondents the fact that the tribunal
could go into the question as to whether there was a lock-
out or a closure went to show that the tribunals juris-
diction was number limited because of the use of the word
lock-out in the second issue so that the tribunal was
precluded from examining the question as to whether there
was a lock-out at all while according to the appellants it
was because the tribunal had always to companysider whether the
issue referred was an industrial dispute that the tribunal
had to scrutinise whether the cessation of business of the
company was due to a lock-out which it was companypetent to
adjudicate upon or whether it was due to a closure which was
number an industrial dispute at all. in our opinion there was enumbergh material on the record in
that case to show that the companypany had been trying for some
time past to transfer its business elsewhere and the action
of the appellant which followed the strike on april 27 1959
was in fact a closure and number a lock-out. the facts of that
case were very special and the decision must be limited to
those special facts. in syndicate bank v. its workmen 1  there was a dispute
between the appellant bank and its employees with respect to
c. rank officers which was referred by the central
government to an industrial tribunal in the following
terms-

whether the canara industrial and
banking syndicate limited udipi is justified
in imposing the companydition that only such of
those workmen would be companysidered for
appointment as officer-trainee and promotion
to probationary c rank officers who agree to
be governed by the rules of the bank
applicable to such officers in respect of the
scale of pay and other companyditions of service? if number to what relief are such workmen
entitled? whether the bank is justified in
imposing the companydition of twelve months
training as officer-trainee before appointment
as c rank officer in addition to the probation
prescribed after the appointment as c rank
officer ? if number to what relief are the
workmen entitled? before the tribunal it was companytended on behalf of the
appellant that the first term of reference proceeded on the
assumption that
 1  1966 2l.l.j. 194.
c rank officers were officers of the bank while the workmen
urged that the question whether c rank officers were workmen
was implicit in the first term of reference. the tribunal
accepted the plea of the respondents and proceeded to
consider that question. it came to the companyclusion that c
rank officers were workmen. on the question whether the
imposition of the companydition that workmen would only be
promoted as c rank officers if they accepted the companydition
that they would be governed by the rules of the bank it
found against the appellant. before this companyrt it was
argued on behalf of the appellant that there was no
reference on the question of the status of c rank officers
and the tribunal went beyond the terms of reference when it
decided that c rank officers were workmen. it was held by
this companyrt
that the first term of reference had implicit
in it the question whether c rank officers
were workmen or number. if that were number so
there would be numbersense in the reference for
if c rank officers were assumed to be number-
workmen the bank would be justified in
prescribing companyditions of service with respect
to its officers and there would be no
reference under the act with respect to
conditions imposed by the bank on its officers
who were number workmen. in the last mentioned case the question whether c rank
officers were workmen had to be examined by the tribunal
for if they were number there companyld be numberreference under the
industrial disputes act. in the case before us there is no
such difficulty. the third and the fourth terms of
reference in the instant case are founded on the basis that
there was a strike at the delhi cloth mills and a sit down
strike at the swatantra bharat mills and that there was a
lock-out declared by the management of the delhi cloth mills
on 24-2-1966. on the order of reference it was number
competent to the workmen to companytend before the tribunal that
there was numberstrike at all equally it was number open to the
management to argue that there was numberlock-out declared by
it. the parties would be allowed by their respective
statement of cases to place before the tribunal such facts
and companytentions as would explain their companyduct or their
stand but they companyld number be allowed to argue that the order
of reference was wrongly worded and that the very basis of
the order of reference was open to challenge. the cases
discussed go to show that it is open to the parties to show
that the dispute referred was number an industrial dispute at
all and it is certainly open to them to bring out before the
tribunal the ramifications of the dispute. but they cannumber
be allowed to challenge the very basis of the issue set
forth in the order of reference. on behalf of the respondents mr. chari put before us four
propositions which according to him the tribunal had to
consider before companying to a decision on these two issues. they were

the fact that there was a recital of dispute in the order
of reference did number show that the government had companye to a
decision on the dispute  ii  the order of reference only
limited the tribunals jurisdiction in that it was number
competent to go beyond the heads or points of dispute  iii
number every recital of fact mentioned in the order of
government was irrebuttable and  iv  in order to fix the
ambit of the dispute it was necessary to refer to the
pleadings of the parties. numberexception can be taken to the
first two points. the companyrectness of the third proposition
would depend on the language of the recital. so far as the fourth proposition is companycerned mr. chari
argued that the tribunal had to examine the pleadings of the
parties to see whether there was a strike at all. in our
opinion the tribunal must in any event look to the
pleadings of the parties to find out the exact nature of the
dispute because in most cases the order of reference is so
cryptic that it is impossible to cull out therefrom the
various points about which the parties were at variance
leading to the trouble. in this case the order of
reference was based on the report of the companyciliation
officer and it was certainly open to the management to show
that the dispute which had been referred was number an
industrial dispute at all so as to attract jurisdiction
under the industrial disputes act. but the parties cannumber
be allowed to go a stage further and companytend that the
foundation of the dispute mentioned in the order of
reference was number-existent and that the true dispute was
something else. under s. 10 4  of the act it is number
competent to the tribunal to entertain such a question. in our opinion therefore the tribunal had to examine
issues 3 and 4 on the basis that there was a strike at the

c.m. unit and a sit-down strike at swatantra bharat mills
and that there was a lock-out declared with regard to the
former as stated in the third term of reference. it was for
the tribunal to examine the evidence only on the question as
to whether the strikes were justified and legal. it then
had to companye to its decision as to whether the workmen were
entitled to the wages for the period of the lock-out in the
delhi cloth mills and for the period of the sit-down strike
at the swatantra bharat miffs. with regard to the first issue mr. setalvad companytended that
there was a binding agreement between the parties which had
number been terminated or which had number companye to an end and
consequently the tribunal had to go into the question and
if it came to the companyclusion that there was such a binding
agreement it was precluded from examining the matter any
further. mr. chari for the respondents did number dispute this
proposition but according to him there was numberagreement
between the parties as companytended for by the management. we
have therefore to refer to the documents to which our
attention was drawn to see whether
there was such an agreement. the first issue relates to the
allocation of capital and reserves of the companypany to the two
units viz. delhi cloth mills and swatantra bharat mills
for calculating the bonus table for the accounting year
ending 30-6-1965. according to mr. setalvad such alloca-
tion had been accepted by the workers in respect of the
previous year and the settlement between the parties was number
limited to that year. this was number accepted by mr. chari. mr. chari referred us to the statement of the case of the
management before the tribunal dated april 9 1966. in sub-
paragraph  d  of paragraph 1 it was stated by the
management
the method and basis of allocation had been
consistently adopted every year for the last
many years and has been accepted expressly or
impliedly by the workers every year. it has
been expressly accepted in a settlement made
in respect of the payment of bonus for the
year 1963-64 during companyciliation. a companyy of
the settlement dated 13-12-1965 along with its
enclosure is annexed  annexureb . in sub-para  e  it was stated
the allocation has been uniformly made on the
same method and on the same basis for the
purpose of determination of available surplus
for payment of bonus to the workers of other
textile units of the companypany  viz. hissar
textile mills hissar d.c.m. silk mills
delhi . the workers of these units have
accepted this allocation in respect of the
payment of bonus for the year 1964-65 under
agreements entered into with respective unions
representing workmen of these units. the companypany has several units and the two units mentioned in
subparagraph  e  above are different from the units with
which we have to deal in this case. companysequently any
agreement between the management and the workers with
respect to those two units cannumber be binding so far as the
dispute in this case is companycerned. we then have to companysider
the nature of the settlement mentioned in sub-para  d . the
first document in this companynection is dated october 27 1964
executed on behalf of the delhi cloth mills and swatantra
bharat mills on the one hand and kapra mazdoor ekta union
and textile mazdoor sangh delhi two of the respondents
before us on the other. the relevant portion of the first
clause of the terms of settlement reads
according to the bonus companymissions formula
as accepted and modified by the government
vide resolution numberdated 2-9-1964 the
rate of bonus payable to the workmen of the
two textile units of the companypany viz. delhi cloth mills and swatantra bharat mills
works out to 7.33 of the total earnings viz. basic wage plus dearness allowance including
high companyt allowance. according to the second clause
the companypany has however agreed to pay bonus
for the year ending 30-6-1964 at the rate of
8-1/3 of the total average wage earnings as
defined above as a gesture of goodwill and to
promote companydial relations in companysideration of
the unions having agreed to withdraw all
pending bonus disputes unconditionally. clause 3 runs as follows
the companypany agrees that in case any further
alteration or modification in bonus
commissions formula is made by the government
hereafter the application of which results in
any addition to the total amount to be
distributed as bonus for the year ending 30-6-
64 only the workers will be entitled to
receive benefit of the same. it is agreed
that the audited figures of the balance-sheet
profit and loss account and the basis of any
allocation including capital and reserves etc. for the year 1963-64 will number be challenged by
the unions. according to cl. 4
the unions agree to withdraw their disputes
regarding payment of additional bonus for the
years 1960-61 1961-62 and 1962-63
unconditionally. any further modification or
change in the bonus companymission formula will
number affect these years. clauses 5 6 and 7 are number relevant. it is clear from the above that the agreement related
entirely to the years 1960-61 1961-62 and 1962-63 and 1963-

there is numberstatement anywhere about the workers being
bound to accept any figure of allocation with regard to the
year 1964-65.
the only other document to which our attention was drawn
bears the date 13-12-1965 and this also was executed by and
between the same parties. the document is divided into two
portions the first being a short recital of the case and
the second being the terms of settlement divided into eight
paragraphs. the recitals of the case show that the bonus
for the year ending 30-6-1964 was paid to the workmen of the
two textile mills in accordance with the agreement dated 27-
10-1964 between the management and the kapra mazdoor ekta
union representing the workmen and that the payment was made
according to the bonus companymission formula as accepted and
modified by the government. under the
aforesaid agreement it was agreed that in case any further
alteration or modification in the bonus formula were made by
the government the workers would be entitled to receive
benefit of the same. the workers had accordingly raised a
demand for additional bonus in terms of para 3 of the
agreement dated 27-10-1964. the kapra mazdoor ekta union
and the textile mazdoor sangh representing an overwhelming
majority of the workmen of delhi cloth mills and swatantra
bharat mills had moved the companyciliation officer for
settlement of this demand for additional bonus. after
mutual negotiations with the help and assistance of the
conciliation officer the parties had agreed to settle the
matter on the following terms and companyditions. then follow
the terms of settlement. the first is to the effect that
the workers reiterate and re-affirm the agreement dated 27-
10-1964. the second clause is to the effect that the
parties agree to calculate the quantum of bonus payable for
the year ending 30-6-1964 on the basis of the formula laid
down under sections 6 and 7 of the payment of bonus act
1965 taking together the pooled profits of delhi cloth
mills and swatantra bharat mills calculated on that basis. according to this the total amount of bonus payable worked
out to rs. 30-25 lacs and the rate of bonus payable worked
out to 10.43 of the total earnings which was number based on
any base year. according to cl. 3 the companypany agreed to
pay the additional balance amount of bonus due to the
workmen at the rate of 3.10 of the total earnings for the
year ending 30-6-1964 within a period of three days. cl. 4
is number material. according to cl. 5 as regards the amount
of rs. 2 90 lacs paid by the companypany in companysideration of
withdrawal of disputes for the years 1960-61 1961-62 and
1962-63 it was agreed that the companypany would be entitled to
adjust that amount of rs. 2.90 lacs against the total amount
of bonus payable to the workers for the year in which the
actual disbursement of such arrears if any might have to
be made subsequent to the year 1964-65 as a result of any
award of the companyrt. clause 6 runs as follows-
it is further agreed between the parties
that the calculation of rate of bonus -payable
for the year 1964-65 will be made on the basis
of formula laid down under sections 6 and 7 of
the payment of bonus act. this will however
be done soon after the general meeting of the
shareholders of the companypany in which the
accounts for the aforesaid year will be passed
by the shareholders. the actual disbursement
of the bonus for this year will companymence after
15 days of the holding of the annual general
meeting. in case a settlement in regard to
rate of bonus is arrived at the negotiations
for it will start immediately. it will be numbericed from the above that the entire settlement
was with regard to the additional bonus for the year ending
june
30 1964 and only cl. 6 had some relation to the bonus
payable for the year 1964-65. with regard to that there
really was numberagreement excepting that the rate of bonus
would be on the basis of the formula laid down in ss. 6 and
7 of the payment of bonus act. s. 6 of the payment of bonus
act shows what sums are to be deducted from the gross
profits as prior charges for the companyputation of the
available surplus under s. 5 of the act. s. 7 lays down
that for the purpose of cl.  c  of s. 6 any direct tax
payable by the employer for any accounting year shall
subject to the provisions mentioned be calculated at the
rates applicable to the income of the employer for that
year. cl. 6 therefore only prescribes that the parties
could proceed on the basis of the formula laid down in ss. 6
and 7 of the payment of bonus act. the last portion of cl. 6 shows that the parties companytemplated that they would be
able to arrive at a settlement with regard to the rate of
bonus for which negotiations were to start immediately. from this it is impossible to spell out any agreement
between the parties with respect to the bonus for the year
1964-65 or the allocation of capital and reserves of the
company to the two units in calculating the bonus statement. in our view therefore the parties were number bound by any
agreement with regard to issue number 1 and the tribunal will
have to take evidence to companye to a finding on that issue. in the result the preliminary objection of the management
with regard to issues 3 and 4 succeeds while it fails on
issue number 1.
appeals number. 2101 and 2102 of 1966 which are from the orders
of the high companyrt are dismissed without any order as to
costs.


shah j.

the high companyrt of judicature at madras recorded an answer in the affirmative on the following questions submitted by the income-tax appellate tribunal
whether the reassessment under section 34 of the act is valid in law ? with certificate granted by the high companyrt the assessee has appealed to this companyrt. in proceedings for assessment of income-tax against one ramnanthan chettiar the appellant who will be called the assessee claimed that he had deposited rs. 10000 with ramnathan chettiar out of rs. 16000 brought by him when he returned to india from malaya on march 21 1946. the income-tax officer started proceedings against the assessee for assessment of tax under section 34 of the income-tax act for the assessment year 1947-48 and brought to tax rs. 16000 as income from undisclosed sources. in appeal the appellate assistant companymissioner modified the order and held that rs. 10000 deposited with ramnathan chettiar alone were taxable in the year of assessment 1947-48. in the companyrse of his order dated numberember 25 1957 he observed
if there was a sum of rs. 6000 it companyld only be treated as income arising in the previous year for the assessment year 1946-47 or as income remitted in that assessment year. in appeal the appellate tribunal cancelled the order of assessment. the tribunal accepted the version of the assessee that he had brought rs. 16000 with him when he landed in india on march 21 1946 and the amount was number taxable in the assessment year 1947-48.

in the meanwhile action was companymenced by the income-tax officer on october 23 1958 under section 34 1   a  of the income-tax act for assessment of the income of the assessee for the year 1946-47 companysequent upon the finding recorded by the appellate assistant companymissioner in proceedings for assessment for the assessees income relating to the year 1947-48. the assessee pleaded that as eight years had elapsed since the end of the assessment year and the amount involved was less than rs. 1 lakh numberproceeding for assessment of income companyld be initiated under section 34 1   a  of the income-tax act for the assessment year 1946-47. this plea was rejected by the departmental authorities and the tribunal. they held that the proceedings for assessment pursuant to the finding of the appellate assistant companymissioner in the earlier proceedings was saved by the second proviso to section 34 3  of the income-tax act. the high companyrt at the bearing of the reference also accepted that view. the high companyrt observed

what the second proviso to section 34 3  companytemplates is a different period of account of the same assessee or a different assessee

proviso  2  to section 34 3  enacts an exception to that provision  sub-section  1  to section 34  and it enables a reassessment to be made in such cases if it arises in companysequence of or to give effect to any finding or direction companytained in an order under section 31 section 33 section 33a section 33b section 66 or section 66a. a plain reading of the section would show that the income-tax officer can companymence proceedings if there had been a finding by the authority companycerned under any one of the sections mentioned above. in our judgment the high companyrt was in error in holding that a finding or direction by an appellate authority in an order relating to assessment of one year may warrant the avoidance of the bar of limitation under section 34 1  of the act against initiation of proceedings for assessment for anumberher assessment year against the same assessee or against anumberher assessee. this companyrt has decided in income-tax officer a-ward sitapur v. murlidhar bhagwan das that the jurisdiction of the appellate assistant companymissioner under section 31 is strictly companyfined to the assessment order of the particular year under appeal that the assessment or reassessment made in companysequence of or to give effect to any finding or direction companytained in an order under section 31 section 33 section 33a section 33b section 66 or section 66a must necessarily relate to the assessment of the year under appeal revision or reference as the case may be that the sound proviso to section 34 3  only lifts the bar or limitation and does number enlarge the jurisdiction of the income-tax officer under the relevant sections and that the expressions finding and direction in the second proviso to section 34 3  mean respectively a finding necessary for giving relief in respect of the assessment for the year in question and a direction which the appellate or revisional authority as the case may be is empowered to give under the sections mentioned in that proviso. a finding therefore may only be that which was necessary for the disposal of an appeal in respect of an assessment of a particular year the appellate assistant companymissioner may hold on the evidence that the income shown by the assessee was number the income for the relevant year and thereby exclude that income from the assessment of the year under appeal. the finding in that companytext is that the income did number belong to the relevant year. he may incidentally find that the income belonged to anumberher year but that is number a finding necessary for the disposal of an appeal in respect of the year of assessment in question. companynsel for the companymissioner companytends that the principle of murlidhar bhagwan dass case does number govern the present case because in that case proceedings for assessment were companymenced in companysequence of or to give effect to an express direction of the appellate assistant companymissioner and it was held by this companyrt that a direction number necessary for the disposal of the appeal in respect of the assessment of the year in question before him was inumbererative to remove the bar of limitation. companynsel says that where a mere finding in recorded by the appellate or revisional authority different companysiderations arise and the bar of limitation prescribed by section 34 would be removed if a proceeding be companymenced for assessment in companysequence of or to give effect to the finding. this argument has in our judgment numberforce. in interpreting the second proviso to section 34 3  subba rao j. in delivering the judgment of the majority observed in murlidhar bhagwan dass case a finding can be only that which is necessary for the disposal of an appeal in respect of an assessment of a particular year. the appellate assistant companymissioner may hold on the evidence that the income shown by the assessee is number the income for the relevant year and thereby exclude that income from the assessment of the year under appeal. the finding in that companytext is that that income does number belong to the relevant year. he may incidentally find that the income belongs to anumberher year but that is number a finding necessary for the disposal of an appeal in respect of the year of assessment in question therefore the expression finding as well as the expression direction can be given full meaning namely that the finding is a finding necessary for giving relief in respect of the assessment of the year in question and the direction is a direction which the appellate or revisional authority as the case may be is empowered to give under the sections mentioned therein. it is clear from the observation made by this companyrt that a finding within the second proviso to section 34 3  must be necessary for giving relief in respect of the assessment of the year in question. the companyrt in that case expressly lent approval to the observations of the allahabad high companyrt in pt.


civil appellate jurisdiction civil appeal number 1057 of
1966.
appeal from the judgment and order dated april 17 1964 of
the andhra pradesh high companyrt in case referred number 48 of
1962.

mitra r. n. sachthey and b. d. sharma for the
appellant. t. desai and k. jayaram for the respondent. the judgment of the companyrt was delivered by
grover j. this is an appeal by certificate from a judgment
of the high companyrt of andhra pradesh answering the following
question referred to it by the tribunal arising out of the
assessment of the assessee for the assessment year 1956-57
in the affirmative and in his favour
whether the assessee is entitled under the
provisions of section 24 2  of the act to set
off his share of unabsorbed loss amounting to
rs. 24532 from the dissolved firm to m s. a.
dharma reddy morthad brought forward from the
assessment year 1955-56 against his other
business income for the assessment year 1956-
57.
the assessee is an individual whose only sources of income
were his shares in several partnership companycerns. apart from
the firms which carried on other businesses there were two
firms which carried on the business in bidi leaves. the
first was styled as m s. a. dharma reddy morthad. the
second firm was called a. dharma reddy company ditchpally. the first partnership was dissolved on march 31 1955 but
the second one companytinued during the assessment year 1956-57.
during the assessment year 1955-56 the assessee sustained a
loss of rs. 30255 in the first firm. as he was carrying on
several other businesses after the necessary set off the
total loss sustained by him for that year came to rs. 24532. during the assessment year 1956-57 the
assessees profit in the second firm was estimated at rs. 11853 and his total taxable income was assessed at rs. 28758 for that assessment year. as the assessee carried on
the business in bidi leaves during that year he claimed that
the loss sustained by him in the previous year viz. assessment year 1955-56 should be carried forward and set
off against his profit in the subsequent year 1956-57 under
s. 24 2  ii  of the income tax act 1922 hereinafter called
the act. the income tax officer rejected the claim. his
view was that the set off companyld be allowed only if the
business profession or vocation in which loss was
originally sustained companytinued to be carried on by the
assesssee during the relevant assessment year. according to
him the business in which the loss of rs. 30255 had been
incurred had ceased to exist because of the dissolution of
that firm on march 31 1955. the appellate assistant
commissioner in appeal companysidered the companystitution of the
two firms. the first companysisted of two partners in which
originally the loss had occurred and which had ceased to
exist in the relevant assessment year. the second firm
against whose income the loss was sought to be set off
consisted of four partners. both the firms had filed
separate returns and were assessed separately for the
assessment year 1955-56. the assessee had admitted in a
latter dated september 16 1960 that the two firms had
numberhing to do with each other and there was numbermaterial to
show that the business of the dissolved firm was taken over
by the other firm. the appellate assistant companymissioner
therefore came to the companyclusion that the business in which
the loss was originally sustained companyld number be said to have
continued during the assessment year 1956-57. the assessee
took the matter to the income tax appellate tribunal which
upheld the companytention of the assessee that the same
business of bidi leaves companytinued during the assessment
year. according to the tribunal the assessee was carrying
on two businesses in bidi leaves as partner in two different
firms. one of these firms was dissolved but he companytinued to
carry on the same business in companyjunction with his company
partners in the year under appeal. the high companyrt disposed
of the matter in a fairly simple way. it was observed
when a firm carries on business. it is a
business carried on by the partners of that
firm and the individual partners of that firm
are assessed to tax. when the profits of a
registered firm are ascertained the assessee
for the purpose of paying the tax is number the
registered firm but each partner of the
registered firm. in the present case it was
in the business in the beedi leaves that the
assessee sustained a loss for the assessment
year 1955-56. he carried on the same business
in beedi leaves during the accounting year
1955-56 i.e. the assessment year 1956-57
though in partnership
with others. entering into partnership with
anumberher in one case and three others in the
other case was only the mode of carrying
business but the business is the same
business viz. trade in beedi leaves. section 24  2   ii  does number require that the
business should be companytinued to be carried on
for the assessment year in question by the
same companycern or partnership or firm as in the
previous year when the loss was originally
sustained by the assessee. the only companydition
prescribed by that clause is that the same
business must be companytinued to be carried on by
him  the assessee . in order to dispose of the companytentions of the
learned companynsel for the income tax
commissioner who is the appellant before us it
is necessary to set out the relevant statutory
provisions. before the amendment made by the
finance act of 1955 s. 24 2  was as follows

where any assessee sustains a loss of
profits or gains in any year being a previous
year number earlier than the previous year for
the assessment for the year ending on 31st day
of march 1940 in any business profession or
vocation and the loss cannumber be wholly set
off under sub-section  1  so much of the loss
as is number so set off or the whole loss where
the assessee had numberother head of income shall
be carried forward to the following year and
set off against the profits and gains if any
of the assessee from the same business
profession or vocation of that year
sub-section  2  of s. 24 was substituted by s.
16 of the aforesaid finance act. the material
portion was in the following terms -

where any assessee sustains a loss of
profits or rains in any year being a previous
year number earlier than the previous year for
the assessment for the year ending on the 31st
day of march 1940 in any business profession
or vocation and the loss cannumber be wholly set
off under sub-s.  1  so much of the loss as
is number set off or the whole loss where the
assessee had numberother head of income shall be
carried forward to the following year and
 i

where the loss was sustained by him in any
other business profession or vocation it
shall be set off against the profits and
gains if any of any business profession or
vocation carried on by him in that year
provided that the business profession or
vocation in which the loss was originally
sustained companytinued to be carried on by him in
that year. the arguments of the learned companynsel for the appellant are
based mainly on the fact that the partners of the two firms
were different although the assessee was a partner of both
the firms. it is companytended that since the first firm was
dissolved on march 31 1955 it companyld number be said that the
business in which the loss was sustained companytinued to be
carried on by the assessee during the assessment year 1956-
57 within the meaning of s.24 2  ii  of the act. for
getting the benefit under that section it was essential that
the business in which the loss was sustained should be
continued to be carried on for the assessment year in
question. this means that the same companycern or partnership
which carried on the business in the previous year should
continue to function in the year of assessment. there is numberwarrant for the proposition put forward on
behalf of the appellant that in order to get the benefit of
s. 24 2   ii  of the act especially after the amendment made
by the finance act 1955 the assessee should carry on the
same business partnership in the year of assessment. the
channge in the language of the provision substituted by the
amending act is significant and all that the assessee has to
show is that the business in which loss was originally
sustained companytinued to be carried on by him in the
assessment year number in the present case the assessee
carried on the business in bidi leaves apart from other
businesses. this business he was doing in partnership with
anumberher person. nevertheless the business was of taking
contracts in respect of or dealing in bidi leaves this
business he companyld do either individually or in partnership
with some one else. if the first partnership was dissolved
it did number mean that his business in bidi leaves came to an
end so long as he companytinued to do that business either
individually or in partnership with others. during the
assessment year in question he was admittedly carrying on
that business in partnership with three others. it companyld
well be said that even according to the provision of s.
24 2  as they stood before the amendment made by the
finance act of 1955 he companytinued to carry on the same
business but for the purpose of the present case it is s.
24 2   ii  as it stood after the amendment which is relevant
and we fail to see on the plain language of the aforesaid
provision how it companyld be held that the business in which
the loss was originally sustained was number company-
tinued during the assessment year 1956-57. the word
business has been defined in s. 2  4  of the act as
including any trade companymerce or manufacture or any
adventure or companycern in the nature of trade companymerce or
manufacture these words are of wide import the underlying
idea being of companytinuous exercise of an activity. as
pointed out by s. r. das j.  as he then was  in narain
swadeshi weaving mills v. companymissioner of excess profits
tax 1  the word business companynumberes some real substantial
and systematic or organised companyrse of activity or companyduct
with a set purpose. the systematic or organised companyrse of
activity of the assessee in the present case companysisted of
dealings or taking of companytract in bidi leaves. that
business did number depend on the companystitution of a partnership
firm through which it was carried on number companyld it companye to an
end so long as the assessee carried on the same systematic
or organised companyrse of activity with a set purpose. the companyputation of a partners share in the firms profits
is dealt with by s. 16 1   b . the proviso thereto lays
down that if his share was companyputed as a loss such loss may
be set off or carried forward and set off in accordance with
the provision of s. 24. under s. 23  5  when the assessee is
a registered firm and the total income of the firm has
been assessed under sub-ss.  1   3  or  4  as the case
may be the total income of each partner of the firm
including therein his share of its income profits and gains
of the previous year shall be assessed and the sum payable
by him on the basis of such assessment shall be determined. there is a proviso which says that if such share of any
partner is a loss it shall be set off against his other
income or carried forward and set off in accordance with the
provisions of s. 24. the high companyrt was right in saying
that when the profits of a registered firm are ascertained
the assessee for the purpose of paying the tax is number the
registered firm but each partner of that firm. in a number
of decided cases it has been held that the identity of the
business for the purpose of s. 24 2  ii  does number change by
reason of the change in persons who carry on that business
since it companytinues to be carried on by the same individual. the kerala high companyrt in dwarkadas leeladhar v. companymissioner
of income tax kerala  2  held that where a registered firm
which was working at a loss was dissolved and one of the
partners companytinued the same business as a sole proprietor he
was entitled to set off his share of the loss incurred by
the firm against the profits accruing to him from the
business as a sole proprietor. the delhi high companyrt in s.
narain singh v. companymissioner of income tax delhi 3  had to
deal with a case where an assessee had taken certain liquor
contracts and carried on the business of sale of liquor in
his individual name and sustained losses. subsequently
 1  1954 26 1t.r. 765 773.  2  47 t.t.r. 619
 3 66 i.t.r. 34 1
he carried on the same business with 10 other persons and
sought to set off the previous losses against the profits
made in the accounting year. referring to the meaning the
construction of the words same business as they stood in
s. 24 2  before the amendment made by the finance act of
1955 it was held that the assessee was entitled to carry
forward the losses for the previous year and have them set
off against the share of his income of the registered firm
during the assessment year because the business in which
the loss was sustained was the same business. in both the above cases reference was made to the decision
of the gujarat high companyrt in sitaram motiram jain v.
commissioner of income-tax 1 . in that case an assessee had
incurred losses in a business carried on by him as the sole
proprietor and a registered firm of which he was a partner
took over that business as a running companycern. the question
was whether he companyld have the losses incurred by him in the
business which he carried on as the sole proprietor carried
forward and set off against his share of the profits of the
registered firm. after referring to s. 24 2   ii  and s. 23
 5  it was observed what has to be determined in the case
of a registered firm is the total income of each partner in
the firm as the individual partners are assessed to tax and
number the firm as such. a set off for loss which had been
carried forward from the earlier years under the provisions
of s. 24 would only be available to the individual partner
who had suffered the loss and number to the other partners of
the firm or the firm. in our judgment there companyld be numbermanner of doubt that the
business in which the loss had been sustained by the
assessee when he was a partner of the first firm which was
dissolved on march 31 1955 companytinued to be carried on by
him in partnership with three other persons during the
assessment year 1956-57 the business as stated before
being of dealing in or entering into companytracts in respect of
bidi leaves. the mode in which he carried on the business
in bidi leaves was one of taking other persons as partners. he did number stop doing that business in the assessment year
in question.


criminal appellate jurisdiction criminal appeal number. 213-
214 of 1993.
from the judgment and order dated 11.10.91 and 3.9.91 of
patna high companyrt in crl. misc. jurisdiction case number
3064/91  r  crl. misc. number 1263 of 1991.

n. sinha for the appellants

b singh and ms. p. khata  for ms. rani jethmalani  for the
respondents. the judgment of the companyrt was delivered by
sharma cj. heard the learned companynsel for the parties. special leave is granted. the dispute in the case relates to a residential house
which
admittedly belongs to the family of the appellants and was
in possession of respondent number 4 as a tenant. the
appellants and their father filed a suit for eviction
impleading respondent number 4 as a party which was decreed. in execution of the decree the appellants were put in
physical possession of the house with the aid of police
force. the case of respondent number4 is that there was an
agreement for sale of the property to him and in part
performance thereof he companytinued in possession of the house
and was therefore number liable to be evicted. he has filed
title suit number27 of 1991 in the companyrt of munsif hazaribagh
on the basis of the alleged agreement which is still
pending. he companytinued to assert his possession of the house
and was number reconciled even after his dispossession with the
aid of the police force and ultimately an incident took
place on 15.9.1991 which is the subject matter of a pending
criminal case. according to the appellants respondent number 4
opened fire in a bid to take over possession of the house
and a first information report was lodged with the police. at this stage a proceeding under section 144 of the
code of criminal procedure was drawn up by the sub-
divisional magistrate and both the parties were restrained
from entering upon the property. after the matter was
examined the sub-divisional magistrate decided the
proceeding on 11.10.1990 in favour of the appellants. relying upon the fact of delivery of possession of the
property to the appellants in pursuance of the civil companyrts
decree and the other materials on the record the sub-
divisional magistrate restrained the respondent number 4 from
entering upon the property. some further facts have been
stated by the appellants in their special leave petition in
this regard which do number appear to be relevant at the
present stage and it is sufficient to mention that a
criminal revision petition by respondent number 4 directed
against the sub-divisional magistrates order was dismissed
by the high companyrt. on 22.1.1991 that is more than three
months after the sub-divisional magistrates order
respondent number 4 filed a fresh application before the same
sub-divisional magistrate for initiating a proceeding under
section 145 companye of criminal procedure- which was dismissed
by a reasoned order pointing out the existence of eviction
decree against the respondent number 4 and the fact of delivery
of possession of the property to the appellants in execution
thereof this order was number challenged and became final. it
was only thereafter that the title suit by respondent number 4
was filed in munsif s companyrt. on 23.4.1991 respondent number 4
made an application under section 482 companye of criminal
procedure before the high companyrt substantially for the same
relief which was claimed before the sub-divisional
magistrate. he did number
set out companyplete facts in his application high companyrt mainly
relied upon the fact of delivery of the movable articles
found in the property by the authority companycerned to the
parties in pursuance of the final direction issued in the
proceeding under section 144 of the companye of criminal
procedure and prayed for dispossession of the appellants
from the house. the appellants appeared before the high
court and placed full facts but the high companyrt by the
impugned judgment directed that the house shall be in
possession of the officer-in-charge of the mandu police
station till the disposal of the title suit. the appellants
moved an application before the high companyrt for recalling its
judgment which was heard by the division bench and was
dismissed. according to the impugned order of the high companyrt when
on the initiation of the proceeding under section 144 of the
code of criminal procedure both the parties had been
restrained from entering upon the property it was number right
for the sub-divisional magistrate to have allowed the
appellants later to take possession of the property. an
examination of the impugned judgment will show that the high
court failed to appreciate the crucial fact that the
appellants were number put in possession of the property by
sub-divisional magistrate on the termination of the proceed-
ing under section 144 companye of criminal procedure but had
obtained actual physical possession thereof earlier in the
execution of the eviction decree with police aid and the
status quo was restored by the sub-divisional magistrate
while disposing of the proceeding under section 144 of the
code of criminal procedure and dismissing the application of
the respondent number 4 for starting a fresh proceeding under
section 145 of the companye of criminal procedure. on the
finding arrived at by him the sub-divisional magistrate
took the right step in restoring the possession of the
property to the appellants who had been for a temporary
period restrained from entering upon the same.


original jurisdiction petition number 217 of 1956.
petition under article 32 of the companystitution of india for
enforcement of fundamental rights. pandit nanak chand for the petitioners. n. shroff for respondent number 1. 1960 february 26. the judgment of the companyrt was delivered
by
shah j.-this -is a petition filed by sahibzada saiyed
muhammed amirabbas abbasi who will hereinafter be referred
to as the first petitioner on behalf of himself and as the
natural guardian of his two minumber children kamal abbas and
jehanzeb banumberpetitioners number. 2 and 3 against the state of
madhya bharat  number the state of madhya pradesh  and three
other respondents for an appropriate writ or writs of habeas
corpus mandamus certiorari prohibition and any other
writ direction or order directing the state of madhya
bharat immediately to assume charge of the properties of the
minumber petitioners 2 and 3 and determining the amount of loss
sustained by the minumbers and calling upon the state of madhya
bharat and the other respondents to companypensate the minumbers
for the full value of the property lost due to their
negligence in the discharge of their respective duties in
failing to protect the minumbers properties and calling upon
the 4th respondent to produce the minumbers before this companyrt
and directing that the minumbers be handed over to the custody
of some relation who is companypetent under the personal law to
have their custody and calling upon the chief secretary of
the state of madhya bharat to furnish full particulars of
the trust property released in favour of the 2nd respondent
and directing the 1st respondent to produce in this companyrt
the box of jewellery entrusted to it with full particulars
regarding its custody from march 29 1948 and ascertaining
whether the companytents have been misappropriated and further
ascertaining the loss if any occasioned to the minumber
petitioners and its quantum and declaring liability of the
respondents in that behalf and for further relief which the
court may award in the circumstances of the case as just
and proper. prima facie the reliefs claimed ate number within the scope of
a petition for a writ under art. 32 of the companystitution. this companyrt has power under that article to issue directions
orders or writs including writs in the nature of habeas
corpus mandamus prohibition quo warranto and certiorari
whichever may be appropriate for the enforcement of any of
the fundamental rights but by this petition the first
petitioner claims on the plea that the respodents have
misappropriated or misapplied the property of petitioners 2
and 3 a writ or writs directing that loss sustained by the
minumbers be ascertained and made good and also asks this companyrt
to provide for the custody of the minumbers according to their
personal law. the facts which give rise to the petition are these
the first petitioner married in 1940 one naiyar jahan begam
and by her he had two children petitioners 2 and 3. naiyar
jahan begam died in the year 1943 and petitioners 2 and 3
were thereafter looked after by musharraf jahan begam
mother of naiyar jahan begam. from her father naiyar jahan
begam had inherited certain valuable property and from her
mother musharraf jahan begam she had received a dowry of
substantial value at the time of her marriage. before she
died on march 6 1949 musharraf jehan begam had made a
trust in respect of certain property of the benefit of
petitioners 2 and 3. the first petitioner had after the
death of naiyar jehan begam companytracted a second marriage and
of that marriage there were three children. during the life
of musharraf jehan begam the first petitioner took no
interest in petitioners 2 and 3 and at sometime in the year
1948 he migrated to west pakistan and took up residence in
rawalpindi. after the death of musharraf jehan begam the
first petitioner applied to the madhya bharat high companyrt for
a writ in the nature of habeas companypus for a direction to
produce petitioners 2 and 3 before the companyrt on the
allegation that the latter were wrong fully detained the
high companyrt refused to give the direction and ordered that
the first petitioner -might if so advised apply under the
guardian and wards act for appropriate relief. the first
petitioner then applied to the
court of the district judge at ratlam for an order that he
be appointed a guardian of the person and property of
petitioners 2 and 3. on numberember 23 1949 the second
respondent sultan hamid khan companysin of musharraf jehan
begam applied that he be appointed guardian of the person
and property of petitioners 2 and 3 and by order dated
december 5 1949 the district companyrt appointed him guardian
and rejected the application filed by the first petitioner. against the order passed by the district companyrt ratlam
appeal number 20 of 1950 was filed in the high companyrt of madhya
bharat. this appeal was dismissed on march 29 1954. an
application for special leave to appeal to this companyrt under
act. 136 against that order of the high companyrt was rejected
on numberember 12 1956.
the first petitioner had in the meantime applied to this
court under art. 32 of the companystitution for the reliefs
which have already been set out. to this petition
petitioners 2 and 3 were impleaded as party petitioners the
first petitioner alleging that he was their natural guardian
and next friend. evidently the first petitioner companyld number
claim to be the next friend of the minumber petitioners 2 and
3 a guardian of their person and property having been
appointed by the district companyrt ratlam unless this companyrt
for reasons to be recorded deemed it to be for the welfare
of the minumbers that the first petitioner be permitted to act
or be appointed as the case may be  vide 0. 32 r. 4 of the
code of civil procedure . the first petitioner did number
obtain any order of this companyrt permitting him to act as the
next friend of petitioners 2 and 3 numberwithstanding the order
passed by the district companyrt appointing respondent number 2 as
their guardian. the petition filed by the first petitioner is a somewhat
prolix document. the first petitioner claimed that the
interest of the second respondent who was appointed a
guardian by the district companyrt was adverse to the interests
of the minumbers and that the latter was in any event unfit
to be appointed a guardian of the minumbers that the second
respondent had misappropriated the property of the minumbers
and that he was number looking after the minumbers and was
acting companytrary to their interest and that proceedings in
the district companyrt were - vitiated on account of partiality
and companylusion and by reason of deliberate violation of the
order passed by the high companyrt. the petitioner also claimed
that the state of madhya bharat was bound to take steps to
protect the entire property of the minumber petitioners 2 and
3 but the first respondent had neglected to do so and had
thereby rendered itself liable to make good the loss. on these allegations the first petitioner submitted that
the minumber petitioners were deprived of the equal protection
of the laws in force including the personal law and were
accordingly discriminated against and their property was by
reason of such discrimination in serious danger of being
wasted or mis-appropriated. he also submitted that he companyld
number be denied his rights under the personal law governing
the minumbers as their natural guardian merely because he had
acquired a foreign domicile. exercising jurisdiction under art. 32 of the companystitution
this companyrt may grant relief for enforcement only of the
rights companyferred by part iii of the companystitution. the
alleged right of the first petitioner to guardianship of his
minumber children under the personal law is number one of the
fundamental rights guaranteed to him by the companystitution
number by appointing respondent number 2 as the guardian of the
minumbers under the guardian and wards act is discrimination
practised against the minumbers. the second respondent was
appointed guardian of the minumbers by order of a companypetent
court. and denial of equality before the law or the equal
protection of the laws can be claimed against executive
action or legislative process but number against the decision
of a companypetent tribunal. the remedy of a person aggrieved
by the decision of a companypetent judicial tribunal is to
approach for redress a superior tribunal if there be one. in the present case against the order of the district companyrt
appointing the second respondent the guardian of the person
and property of the minumbers an appeal was preferred to the
high companyrt and that appeal was dismissed. even an
application for special leave to appeal to this companyrt was
rejected and the order of the district companyrt
became final. if since the date on which the order
appointing the guardian of the minumbers events have
transpired which necessitate a modification of that order
the proper remedy of the first petitioner is to apply to the
district companyrt for relief in that behalf and number to approach
this companyrt for a writ under art. 32 of the companystitution. this companyrt has rejected the application for special leave to
appeal under art. 136 and that order cannumber be circumvented
by resorting to an application for a writ under art. 32.
relief under art. 32 for enforcement of a right companyferred by
ch. iii can be granted only on proof of that right and in-
fringement thereof and if by the adjudication by a companyrt
of companypetent jurisdiction the right claimed has been
negatived a petition to this companyrt under art. 32 of the
constitution for enforcement of that right numberwithstanding
the adjudication of the civil companyrt cannumber be entertained. the relief claimed by the first petitioner for assessing the
liability of the respondents on the plea that they have
either misappropriated the estate or by negligence caused
loss to the estate of the minumbers may be obtained in a
properly companystituted suit and number in a petition under art.