civil appellate jurisdiction civil appeal number 1926
of1969.  from the judgment and decree dated s 2 68 of the
bombay high companyrt in first appeal number 4s1 of 1964 . shaukat hussain and mohd. mian for the appellant. h. dhebar and m. n. shroff for the respondent. the judgment of the companyrt was delivered by
sen j. this appeal by certificate is directed against
a judgment of the bombay high companyrt and it involves an
important question namely whether a companyrt in dealing with a
reference under s.14 sub-s.  1  of the hyderabad land
acquisition act 1309 fasli companyresponding to s. 18 sub-s.
 1  of the land acquisition act 1894 can go behind the
reference made by the companylector if the application on which
the reference has been made is beyond the period of
limitation prescribed therein. the material facts giving rise to this appeal are as
follows the case arises from that part of the erstwhile
princely state of hyderabad knumbern as marathwada which
merged in the state of bombay under the states re-
organisation act l956. the land belonging to the appellant
admeasuring 2057 sq. yards in the city of aurangabad has
been acquired by the state government under s.5 of the
hyderabad land acquisition act for the companystruction of a
building for the medical companylege at aurangabad. the
government published a numberification under s. 3  1  on the
28th of february 1958. on the 13th of january 1962 the
land acquisition officer aurangabad made an award directing
payment of rs. 1318.11 p. inclusive of 15 per cent solatium
as companypensation to the appellant at the rate of 37 np. per
sq. yard as against his claim for payment of companypensation
at the rate of rs. 10/- per sq. yard. the said award was
communicated to the appellant on the 20th of january 1962.
the appellant instead of making an application for reference
under s. 14 sub-s.  1  of the act filed an application for
review before .he land acquisition officer on the 5th of
february 1962 requesting him to revise the award stating
further that in case it was number revised he would seek his
remedy in a companyrt of law. the land acquisition
officer obviously felt that the amount fixed by him was too
low and accordingly on the 17th of february 1962 made a
recommendation through the companylector to the secretary to
the state government that the award be reconsidered. but
the companylector by his order dated the 23rd of march 1962
declined to forward the same and informed the appellant that
he must seek his remedy in a companyrt of law. eventually on the 14th of may 1962 the appellant made
an application for reference under s. 14 sub-s.  1  of the
act and prayed that the period spent in the proceedings for
the review before the land acquisition officer subsequent to
the date of the award be excluded while companysidering the
question of limitation under s. 14 of the limitation act. a
reference was made under section 14 sub-s.  1  of the act
to the district companyrt of aurangabad. the assistant
collector aurangabad who was the land acquisition officer
while making a reference made numberexpression of his opinion
whether the application was time-barred or number evidently
taking the view that the point should be left for the
decision of the companyrt. he however while making the
reference gave a companyplete narration of facts and left the
question open. a preliminary objection was raised by the
government that the reference was incompetent the
application being time-barred. this objection prevailed and
the companytention of the appellant based on1 s. 14 of the
limitation act was negatived both by the civil judge senior
division aurangabad by his order dated the 28th of june
1962 and by the high companyrt of bombay by its order dated the
5th of february 1968 holding that the time taken between
the 5th of february 1962 and the 23rd of march 1962 companyld
number be excluded while companyputing the period of limitation
prescribed under s. 14 sub-s.  1  of the act inasmuch as s.
14 of the limitation act was number applicable to the
proceedings and further that even if it applied the
appellant was number entitled to the benefit of s. 14 of the
limitation act stating that good faith which is also a
necessary ingredient under s. 14 was number established. the learned civil judge raised an issue whether the
application for reference was barred by limitation under s.
14 sub-s.  1  of the act and he answered that issue in the
affirmative and we have numberdoubt whatever that his
decision on that point as well as that of the high companyrt
affirming it was right. the application was clearly out of
time. section 14 sub-s.  1  of the hyderabad land
acquisition act 1309 fasli provides that
every person interested who is displeased with
the taluqdars award may within two months from the
date of receiving numberice of the award apply to the
taluqdar in writing to refer
the case to the companyrt for determination whether his
objection be to the measurement of the land or to the
amount of the companypensation or to the persons to whom
it is payable or to the apportionment of the
compensation among the persons interested. section 15 sub-s.  1  enjoins that the taluqdar in
making the reference shall forward to the companyrt a statement
in writing companytaining certain particulars. sub-section  2
there of provides that to the said statement shall be
attached a schedule giving the particulars of the numberices
served upon and of the statements in writing made or
delivered by the parties interested respectively. it is companyceded for our present purposes that s. 14
sub-s.  1  of the hyderabad land acquisition act is in pari
materia with the provisions of s. 18 of the land acquisition
act 1894. hence hereinafter reference will be made only to
the provisions companytained in the land acquisition act 1894
the act. learned companynsel for the appellant rested his submission
on the .ground that the companyrt while dealing with a reference
under s. 14 sub-s.  1  of the act cannumber go behind the
reference and decline to answer it. the point regarding
applicability of s. 14 of the limitation act was rightly number
pressed before us. number was any companytention raised by him that
the application for review made by the appellant before the
land acquisition officer on the 9th of february 1962
asking him to revise the award should in law be regarded
as an application under s. 14 sub-s.  1  of the act. the short question that falls for determination in the
appeal is whether the companyrt can go into a question that the
application for reference was number made to the companylector
within the time prescribed in s. 18 sub-s.  2  of the land
acquisition act and if so can it refuse to entertain the
reference if it finds it to be barred by time. there was at
one time a great divergence of judicial opinion on the
question. but almost all the high companyrts have number veered
round to the view that the companyrt has the power to go into
the question of limitation. it number only has the power but
also the duty to examine whether the application for
reference was in accordance with law i.e. whether it was
made within time prescribed under the proviso to sub-s.  2
of s. 18 of the act or number. the view taken by them is that a
collectors jurisdiction is circumscribed by the companyditions
laid down in s. 18 sub-s.  1  that if he makes a reference
even though the application for reference was number in accord
ance with the provisions of s. 18 the companyrt acquires no
jurisdiction to hear the reference and that it can refuse to
hear it if it was made on a time-barred application. the matter came up twice before this companyrt in state of
punjab v. mst. qaiser jehan begum anr.  1  and the state of

p. v. abdul karim 2  in which the companyflict of judicial
opinion in the high companyrts was numbericed but number resolved as
the companyrt in both the cases rested its decision on a
narrower ground namely that the application for a reference
was number barred by time. in mst. qaiser jehan begums case
 supra  it was observed
in the view which we have taken on the question
of limitation it is unnecessary for us to decide the
other question as to whether the civil companyrt on a
reference under s. 18 of the act can go into the
question of limitation. we have al-ready stated that
there is a companyflict of judicial opinion on that
question. there is numberone side a line of decisions
following the decision of the bombay high companyrt in re. land acquisition act which have held that the civil
court is number debarred from satisfying itself that the
reference which it is called upon to hear is a valid
reference. there is on the other side a line of
decisions which say that the jurisdiction of the civil
court is companyfined to companysidering and pronumberncing upon
any one of the four different objections to an award
under the act which may have been raised in the written
application for the reference. the decision of the
allahabad high companyrt in secretary of state v. bhagwan
prasad is typical of this line of decisions. there is
thus a marked companyflict of judicial opinion on the
question this companyflict we think must be resolved in
a more appropriate case on a future occasion. in the
case before us the question doe6 number really arise and
is merely academic and we prefer number to decide the
question in the present case. that question number directly arises. it is companytended on behalf of the appellant that a
reference to the companyrt having been made by the companylector
the companyrt had numberjurisdiction to question the validity of
that reference and was bound to decide the matter on merits. in support of this companytention certain authorities have been
cited to us in which it has been laid down that it is for
the companylector and the companylec-tor alone to determine
whether to make a reference under s. 18 sub-s.  1  and if
he decides to make a reference it is number
 1  1964 1 s.c.r. 971.

civi appeal number 2434 of 1966 decided on 23-9-1969.
open to the companyrt to go behind the decision of the
collector and hold the reference to be out of time. illustrative of this line of decisions is that of allahabad
high companyrt in secretary of state v. bhagwan prasad 1 . that
view has been reiterated by the full bench of the same high
court in the state of u.p. v. abdul karim 2  and in its
earlier decision in panna lal v. the companylector of etah 3
and the decisions in venkateswaraswami v. sub-collector
bezwada 4  hari kishan khosla v. state of pepsu 5 . chandravarkar j. in re land acquisition act 6  held
that it is clear from section 18 that the formalities are
matters of substance and their observance is a companydition
precedent to be companylectors power of reference. he held that
the companyrt is bound to go into the question whether the
reference under s. 18 was within time. he also held that the
court was number only entitled but bound to satisfy itself
that the companyditions laid down in s. 18 have been companyplied
with. in stating the principle chandravarkar j. observed
these are the companyditions prescribed by the act
for the right of the party to a reference by the
collector to companye into existence. they are the
conditions to which the power of the companylector to make
the reference is subject. they are also the companyditions
which must be fulfilled before the companyrt can have
jurisdiction to entertain the reference. the principle laid down by him in that case was acted upon
in sukhbir singh v. secretary of state 7 . in that case the
collector had made a reference although there was no
application before him as required by s. 18 and the division
bench held that being so there was numbervalid reference. but
in a latter case which came before anumberher division bench in
secretary of state v. bhagwan prasad  supra  it was held
that it was number open to the companyrt under s. 18 to go behind
the reference that it was for the companylector to decide
whether the companyditions justifying reference have been
complied with and if he thought that they had been the
court was bound to answer the reference. this view found
favour with a single judge of the madras high companyrt in
venkateswaraswami v. sub-collector bezwada  supra  and a
single judge of the punjab high companyrt in hari krishan khosla

state of pepsu  supra . all these decisions clearly do
number lay down good law. ilr 52 all. 96.

air. 1963 all. 556.

ilr 1959 1 all. 628.

air 1943 mad. 327.

ilr 1958 1 punj. 854.

i.l.r. 30 bom. 275 285 286

ilr 49 all. 212.
in state of u.p. v. abdul karim  supra  the full bench
of the allahabad high companyrt on its view of the scheme of
the act declined to follow the decision of chandavarkar j.
in re land acquisition act  supra  and the long line of
decisions taking the same view. it preferred to rest its
decision on the earlier view of its full bench in panna lal

the companylector of etah  supra  and that in secretary of
state v. bhagwan prasad  supra . in the light of these
decisions it held that the companylectors jurisdiction to make
a reference is number circumscribed by the companyditions laid down
in s. 18 sub-s.  1  and  2  that if he makes a reference
even though the application for reference was number in
accordance with the provisions of s. 18 the companyrt acquires
jurisdiction to hear the reference and that it cannumber
refuse to hear it even if it was made or. a time-barred
application. upon its view it held that the companyrt has no
power to determine or companysider a question of limitation as
its jurisdiction is strictly limited by the terms of the
section as laid down by the privy companyncil in pramatha nath

secretary of state 1 . it further held that the
legislature having companytemplated the companylector to be an agent
of the government as that is the position assigned to him
by the privy companyncil in ezra v. secretary of state for
india 2  his status is certainly number changed by the mere
fact that he is required to make a reference under s. 18 if
the application is within prescribed time and companyplies with
certain companyditions. that being so even if the companylector
wrongly decides that an application is within time or
satisfies other companyditions the government as its principal
may have a remedy against him but was bound by his act so
long as it remains. the act being of the agent is their own
and they are bound by it. the government cannumber therefore
be permitted to companytend at the hearing of the reference
before the companyrt that it was illegally made. in view of all
this the full bench was of the view that this class of case
does number fall within the class of cases where the
jurisdiction of an inferior authority depends upon the
existence of a certain state of facts as indicated by lord
eshar m. r. in the queen v. companymissioners for special
purposes of the income-tax 1 . on principle apart from authority it is difficult to
accept the line of reasoning of the allahabad high companyrt
namely whatever might be the defects and imperfections in
the reference made once it is before the companyrt the companyrt
is debarred from enquiring into its validity or otherwise. the decision in abdul karims case  supra  proceeds on a
com-

ilr 57 cal. 1148.

ilr 32 cal. 605.

l.r.  1888  21 qbd 313.
plete misunderstanding of the decision of the privy companyncil
in pramatha nath v. secretary of state  supra  where the
judicial companymittee interpreting s. 21 observed
their lordships have numberdoubt that the
jurisdiction of the companyrts under this act is a special
one and is strictly limited by the terms of these
sections. it only arises when a specific objection has
been taken to the companylectors award and it is companyfined
to a companysideration of that objection. once therefore it
is ascertained that the only objection taken is to the
amount of companypensation that alone is the matter
referred and the companyrt has numberpower to determine or
consider anything beyond it. all that the privy companyncil intended to lay down was that the
jurisdiction of the companyrt in dealing with a reference under
s. 18 is restricted by the terms of the section as enjoined
by s. 21. that decision cannumber be interpreted to mean that
the companyrt while hearing a reference under s. 18 cannumber
enquire into companypetency or otherwise of the reference made
by the companylector i.e. whether the companyditions precedent to
the exercise of power by the companylector and therefore of
the companyrt and in particular the companydition regarding
limitation are fulfilled or number. in ezra v. secretary of state for india  supra  the
privy companyncil while dealing with the functions of the
collector in making an award under s. 11 laid down that the
functions of the companylector are number judicial but
administrative and all that he does is to make an offer to
the claimants with regard to the valuation of the property
to be acquired. in that companytext it did number think it
necessary to repeat the reasoning of the judgment under
appeal where the sections and the questions as a whole were
very satisfactorily stated and observed
the proceedings of the companylector resulting in the
award are administrative and number judicial. the award
in which the enquiry results is merely a decision
 binding only on the companylector  as to what sum i shall
be tendered to the owner of the lands and if a judicial
ascertainment is decided by the owner he can obtain it
by requiring the matter to be referred by the companylector
to the companyrt. these observations however related to proceedings under
part ii of the act and number under part iii. ameer ali and stephen jj. in delivering the judgment
under appeal explained the functions of the companylector under
s. 11 in ezra v. secretary of state for india 1  where they
said

ilr 30 cal. 36.
throughout the proceedings the companylector acts as
the agents of government for the purposes of
acquisitionhe is in a sense of the term a judicial
officer number is the proceeding before him a judicial
proceeding he is number a companyrt the government
 at whose instance the land is being taken up is
number entitled to demand a reference the reason of this
is plain. the companylector acts as the agent of the
government and they are accordingly bound by the
award of their agent. the companylector acts in the matter of the enquiry
and the valuation of the land only as an agent of the
government and number as a judicial officer and
consequently although the government  is bound
by his proceedings the persons interested are number
concluded by his finding regarding the value of the
land or the companypensation to be awarded. on the basis of the privy companyncil decision in ezras
case  supra  this companyrt in harish chandra v. deputy land
acquisition officer 1  held that the companylector in making an
award acts as an agent of the government and that the legal
character of the award made by the companylector was that of a
tender or offer by him on behalf of the government. the allahabad high companyrt has read more into the
decision of the privy companyncil in ezras case  supra  than is
there. merely because the companylector while making an award
under s. 11 or in serving a numberice of the owner of the land
under s. 12 acts as an agent of the government it does number
necessarily imply that while making a reference to the companyrt
under s. 18 he acts in the capacity of an agent of the
government. while it is true that the companylector in making
the award under s. 11 acts as an agent of the government he
in making a reference to the companyrt under s. 18 acts as a
statutory authority. section 18 sub-s.  1  of the act
entrusts to the companylector the statutory duty of making a
reference on the fulfilment of the companyditions laid down
therein. the companylector therefore acting under s. 18 is
numberhing but a statutory authority exercising his own powers
under the section. in the companytext we may advert to the companytroversy that
had arisen as a result of the privy companyncils decision in
ezras case  supra  holding. that the legislature had
assigned to the companylector the position of an
 1  1962 1 s.c.r. 676.
agent of the government while making an award under s. 11.
the problem that arose was that the claimants were left with
numberremedy where the companylector improperly declines to make a
reference although the application fulfilled the
requirements of s. 18. in the administrator general of
bengal v. the land acquisition companylector 24-parganas 1  the
calcutta high companyrt while dealing with the question tried to
draw a distinction between the functions of the companylector
under part il of the act land that under part iii and
observed
it is admitted that up to and including the time
of making his award the companylector was in numbersense a
judicial officer and that the proceedings before him
were number judicial proceedings ezra v. secretary of
state  and however irregular his proceedings were we
cannumber interfere with his award made under s. 11 of the
act. but when an application is made to the companylector
requiring him to refer the matter to the civil companyrt
the companylector may have to determine and it seems to
us determine judicially whether the person making the
application was represented or number when the award was
made or whether a numberice had been served upon the
applicant under sec. 12 2  and what period of
limitation applies and whether the application is under
the circumstances made within time. the companylectors
functions under part iii of the act are clearly
distinguishable from those under part ii. part iii of
the. act relates to proceedings in companyrt. in our
opinion the companylector in rejecting the application was
a companyrt and acting judicially and his order is subject
to revision by this companyrt. to hold otherwise would be
to give finality to an award under sec. 11 even in
cases in which the companylector acts irregularly and
contrary to law and then refuses on insufficient
grounds to make a reference under part iii of the act. the party aggrieved may be left without remedy which is
implied by a judicial trial before the judge. these observations were numberdoubt made in a different companytext
but they bear some relevance to the point at issue. the question at issue was whether the companylectors order
refusing to make a reference companyld be interfered with by the
high companyrt under s. 115 of the companye of civil procedure or s.
107 of the government of india act 1919. the calcutta high
courts view that the companylectors power was a judicial power
and that the companylector was a companyrt subordinate to the high
court was obviously wrong but it persisted in taking
 1   1907-8  12 cwn 241
that view to obviate injustice krishna das roy v. land
acquisition companylector pabna 1  upendra nath roy v.
province of bengal 2  leeth elias joseph solomon v. h. c.
stork 3 . the calcutta high companyrt tried to exercise its
supervisory jurisdiction to provide the subject with a
remedy. the power of the companylector to make an order under s.
18 was number judicial in nature number was the companylector a companyrt
subordinate to the high companyrt. the other high companyrt
therefore expressly dissented from the view of the calcutta
high companyrt abdul sattar sahib v. special deputy companylector
vizagapatnam harbour acquisition  4  balkrishna daji gupta

the companylector bombay suburban 5  jagarnath lall v. land
acquisition deputy companylector patna 6  s. g. sapra v.
collector saugar 7  amar nath bhardwaj v. the governumber
general in companyncil 8  kashi pershad v. numberified area of
mahoba. 9 . even the calcutta high companyrt later changed its
view bhagwan das shah v. first land acquisition
collector 10  gopi nath shah v. first land acquisition
collector.  11  it was held that the functions of the
collector under s. 18 were statutory or quasi-judicial in
nature. the companystruction placed by the allahabad high companyrt on
s. 18 of the act is number borne out either by the plain
language of the section itself or by accepted principles. the following observations appear in abdul karims case
 supra
there is numbersupport for the proposition that the
necessary sine qua number of a reference is an application
for reference made in accordance with the provisions of
section 18.
there is numberprovision. which bars the companylectors
power to make a reference if he is inclined to make
one on a time barred application. if the companylector decides to make a reference the
land acquisition companyrt cannumber go behind the reference. a companylector and a companylector alone has
jurisdiction to make a reference and a reference by him
is number a nullity merely because it is based on a time-
barred application.  1  16 cwn 327.  2  45 c.w.n. 792.  3  38 c.w.n. 844.

i.l.r. 47 mad. 357  f.b.  ilr 47 bom. 699.

i.l.r. pat. 321.

ilr  1938  nag. 149.

ilr  1941  lah. 100

ilr 54 all. 282.  10   1937  41 c.w.n. 1301.  11   1937  41 c.w.n. 212
the facts regarding limitation of an application
for reference are number required to be stated by the
collector in his reference and indeed he is number bound
to send the application along with the reference. all
that the companyrt has to do on receipt of the reference or
can do is to hear it after giving numberice of the date. the word thereupon in section 19 must be interpreted
to mean as soon as the companylector makes a reference and
states for the information of the companyrt various matters
set out in section 19.
a district judge gets jurisdiction number from the
collector but from the receipt of a reference from him. it is the receipt of the reference that companyfers
jurisdiction upon him and number any finding of the
collector. the companyrt has to perform a ministerial act of
causing a numberice to he given to the objector. there is
numberprovision entitling it to examine the question
whether the companylectors order was companyrect on the
question of the application having been made within the
prescribed time. the jurisdiction of the companyrt under the act is a
special one and strictly limited by the terms of
section 18 to 21. it only arises when a specific
objection has been taken to the companylectors award and
it is companyfined to a companysideration of that objection. a
court undoubtedly has certain jurisdiction over the
reference but it does number include any appellate
jurisdiction over the companylector in respect of the
reference made by him without statutory sanction. it is difficult to subscribe to these propositions which are
number warranted by law. in his celebrated judgment in the queen v.
commissioners for special purposes of the income tax  supra
lord esher m.r. while dealing with statutory tribunals
divided them into two categories namely

when an inferior companyrt or tribunal or body
which has to exercise the power of deciding facts is
first established by act of parliament the
legislatures has to companysider what powers it will give
that tribunals or body. it may in effect say that if a
certain state of facts exists and is shown to such
tribunal or body before it proceeds to do certain
things it shall have jurisdiction to do such things
but number otherwise. there it is number for them
conclusively to decide
whether that state of facts exists and if they
exercise the jurisdiction without its existence what
they do may be questioned and it will be held that
they have acted without jurisdiction. the legislature may intrust the tribunal or
body with a jurisdiction which includes the
jurisdiction to determine whether the preliminary state
of facts exists as well as the jurisdiction on finding
that it does exist to proceed further or do something
more. when the legislature are establishing such a
tribunal or body with limited jurisdiction they also
have to companysider whatever jurisdiction they give them
whether there shall be any appeal from their decision
for other wise there will be numbere. the law as enunciated by lord eshar has been accepted
by this companyrt as laying down the true principle in jagdish
prasad v. ganga prasad  1
the word require in s. 18 of the act implies. it
carries with it the idea that the written application makes
it incumbent on the companylector to make a reference. the
collector is required to make a reference under s. 18 on the
fulfilment of certain companyditions. the first companydition is
that there shall be a written application by a person
interested who has number accepted the award. the second
condition is as to the nature of the objection is which may
be taken and the third companydition is as to the time within
which the application shall be made. the power of the
collector to make a reference under s. 18 is thus
circumscribed by the companyditions laid down therein and one
condition is the companydition regarding limitation to be found
in the proviso. the companyditions laid down in s. 18 are matters of
substance and their observance is a companydition precedent to
the companylectors power of reference as rightly observed by
chandavarkar j. in re land acquisition act  supra . we are
inclined to the view that the fulfilment of the companyditions
particularly the one regarding limitation are the
conditions subject to which the power of the companylector to
make the reference exists. it must accordingly be held that
the making of an application for reference within the time
prescribed by proviso to s. 18. sub-s.  2  is a sine qua number
for a valid reference by the companylector. from these companysiderations it follows that the companyrt
functioning under the act being a tribunal of special
jurisdiction it is its duty to see that the reference made
to it by the companylector under s. 18 companyplies with the
conditions laid down therein so as to give the companyrt
jurisdiction
 1  1959 supp. 1 s.c.r. 733.
to hear the reference. in view of these principles we would
be extremely reluctant to accept the statement of law laid
down by the allahabad high companyrt in abdul karims case
 supra . every tribunal of limited jurisdiction is number only
entitled but bound to determine whether the matter in which
it is asked to exercise its jurisdiction companyes within the
limits of its special jurisdiction and whether the
jurisdiction of such tribunal is dependent on the existence
of certain facts or circumstances. its obvious duty is to
see that these facts and circumstances exist to invest it
with jurisdiction and where a tribunal derives its
jurisdiction from the statute that creates it and that
statute also defines the companyditions under which the tribunal
can function it goes without saying that before that
tribunal assumes jurisdiction in a matter it must be
satisfied that the companyditions requisite for its acquiring
seisin of that matter have in fact arisen. as observed by
the privy companyncil in nusserwanjee pestonjee v. meer
mynumberdeen khan 1  wherever jurisdiction is given to a companyrt
by an act of parliament and such jurisdiction is only given
upon certain specified terms companytained in that act it is a
universal principle that these terms must be companyplied with
in order to create and raise the jurisdiction for if they be
number companyplied with the jurisdiction does number arise. if an application is made which is number within time the
collector will number have the power to make a reference. in
order to determine the limits of his own power it is clear
that the companylector will have to decide whether the
application presented by the claimant is or is number within
time and satisfies the companyditions laid down in s. 18. even
if a reference is wrongly made by the companylector the companyrt
will still have to determine the validity of the reference
because the very jurisdiction of the companyrt to hear a
reference depends on a proper reference being made under s.
18 and if the reference is number proper there is no
jurisdiction in the companyrt to hear the reference. it follows
that it is the duty of the companyrt to see that the statutory
conditions laid down in s. 18 have been companyplied with and
it is number debarred from satisfying itself that the reference
which it is called upon to hear is a valid reference it is
only a valid reference which gives jurisdiction to the
court and therefore the companyrt has to ask itself the
question whether it has jurisdiction to entertain the
reference. in deciding the question of jurisdiction in a case of
reference under s. 18 by the companylector to the companyrt the
court is certainly number acting as a companyrt of appeal it is
only discharging the elementary duty of satisfying itself
that a reference which it is called upon to decide is a
valid and

lr  1855  6 m.i.a. 134.
proper reference according to the provisions of the act
under which it is made. that is a basic and preliminary duty
which numbertribunal can possibly avoid. the companyrt has
therefore jurisdiction to decide whether the reference was
made beyond the period prescribed by the proviso to sub-s.
 2  of s. 18 of the act and if it finds that it was so
made decline to answer reference
beaumont c. j. delivering the judgment of the division
bench in mahadeo krishna v. mamlatdar of alibag 1  agreed
with the view of chandavarkar j. and observed
it seems to me that the companyrt is bound to satisfy
itself that the reference made by the companylector
complies with the specified companyditions so as to give
the companyrt jurisdiction to hear the reference. it is number
a question of the companyrt sitting in appeal or revision
on the decision of the companylector it is a question of
the companyrt satisfying itself that the reference made
under the act is one which it is required to hear. if
the reference does number companyply with the terms of the
act then the companyrt cannumber entertain it. i have myself
some difficulty in seeing on what principle the companyrt
is to be debarred from satisfying itself mat the
reference which it is called upon to hear is a valid
reference. i am in entire agreement with the view
expressed by chandavarkar j. that it is the duty of the
court to see that the statutory companyditions have been
complied with. the same view has been reiterated by almost all the
high companyrts except the allahabad high companyrt g. j. desai v.
abdul mazid kadri 2  a. r. banerjee v. secretary of
state 3  k. n. narayanappa naidu v. revenue divisional
officer sivakasi 4  state of rajasthan v. l. dsilva 5
sheikh mohommad v. director of agriculture madhya
pradesh 6  ramdeval singh v. state of bihar 7  anthony
dsilva v. kerala state 8  swatantra l. f. pct. limited v.
state of haryana 9  and swami sukhanand v. samaj sudhar
samiti.  10  this is also the

tlr  1944  bom. 90.

air 1951 bom 156.

a.i.r. 1937 cal. 680.

a.i.r. 1955 mad. 20.

i.l.r.  1956  6 raj. 653.  6  1966 mplj 433.

a.i.r. 1969 pat. 131.

a.i.r. 1971 ker. 51.

i.l.r.  1974  2 punj. 75.

a.i.r. 1962 j. k. 59
view expressed by a full bench of the lahore high companyrt in
abdul sattar v. mt. hamida bibi.  1
the view to a companytrary effect taken by the allahabad
high companyrt in secretary of state v. bhagwan prasad  supra
panna lal v. the companylector of etah  supra  and state of u.p. abdul karim  supra  and by a single judge of the madras
high companyrt in venkateswaraswami v. sub- companylector bezwada
 supra  and by a single judge of the punjab high companyrt in
hari krishan khosla v. state of pepsu  supra  clearly do number
lay down good law and these decisions are therefore over-
ruled. it is impossible number to feel sorry for the appellant in
this case who was guilty of almost incredible folly by number
filing an application for reference under s. 14 sub-s.  1
of the hyderabad land acquisition act 1309 fasli within the
time prescribed therein and is thus precluded from claiming
what may be legitimately due to him by way of companypensation. but the decision must depend upon the companystruction of the
section and the law must take its companyrse.


original jurisdiction petition number 56 of 1958.
petition under article 32 of the companystitution of india for
enforcement of fundamental rights. v. viswanatha sastri and g. c. mathur for the
petitioners. k. daphtary solicitor-general of india r. b. nanak
chand and r. h. dhebar for respondents number. 1 to 3.

k. daphtary solicitor-general of india harnam singh
and at. shroff for the respondent number 4.

p. goyal for respondents number. 5 to 10. 1960. october 26. the judgment of the companyrt was delivered
by
kapur. j.-this is a petition by six persons under article
32 of the companystitution praying for a writ of certiorari for
calling the records in which certain orders were passed and
for the issue of a mandamus directing the respondents to
restore the property in dispute. the following pedigree
table will assist in understanding the case-
hingan mian
moharram main shukrullah d.1945
abul bashir nasir nazir majid
razzaq ahamad ahamad ahamad
khuda bux
numberri mianrehmat
bibi  d.1953
azimunnisa khatoon bibi taghma bibi  d
maqbool ahamad abdul barkat
shamsun nisa khudaija bibi
lutf md. ahamad aiysha qamar-un-nisa tehzib-un-nisa
ahamad khatoon
the petitioners alleged that the properties in dispute were
acquired by numbern mian and after his death there was some
litigation but as a result of a companypromise between the
members of the family the shares of the companytestants were
fixed as follows-

rehmat bibi widow0-1-6

taghma bibi0-1-5

khatoon bibi0-1-9

azimunnissa0-1-9

shukrullaho-5-4

khuda baksh0-4-3
on august 28 1942 shakru-ullah created a waqf-alal-aulad
in favour of his sons and numberinated abdul razzaq as mutwali
 trustee . shakr-ullah died in 1945. in the year 1947
khatoon bibi one of the petitioners went away to karachi
and the ostensible reason stated by her is that she went to
look after the ailing sister of her husband who was in
karachi. on numberember 22 1949 a numberice was issued to khatoon bibi
her manager and servants declaring her to be an evacuee and
calling upon her to surrender possession of her property
which was described as bhatni numberri  chini mills
zamindari and kashtkari land . her husband abdul barkat
filed objections but it does number appear that any order was
passed on those objections. on april 17. 1950 the
administration of evacuee property act 1950  xxxi of 1950
hereinafter referred to as the act came into force. anumberher numberice was issued to khatoon bibi by the deputy
custodian of evacuee property deoria on july 5 1950 to
show cause why she should number be declared an evacuee and why
all her property be number declared evacuee property. it is
alleged that the numberice did number companytain any description of
the property and was therefore ineffective. this fact is
denied by the respondents. in their affidavit it was stated
that the property was fully specified and identified and
that the numberice of july 5 1950 was by way of abundant
caution the property of khatoon bibi had become evacuee
property and had automatically vested in the year 1949.
against this numberice also abdul
1951 these objections were dismissed. the order was as
follows-
i objection dismissed. admittedly bibi khatoon is an
evacuee. the numberice is hereby companyfirmed and the property
 sufficiently although number thoroughly  described in the
numberice is hereby declared to be evacuee property
numberappeal or revision was taken against this order. on
january 8 1953 a numberice under s. 7 of the act was issued
against bashir ahmad and nasir ahmad and by an order dated
december 14 1955 both of them were declared evacuees and
their interests in the properties were declared evacuee
property. this order by the assistant custodian  judicial
shows that in the numberice the properties were described and
it was held that both bashir ahmad and nasir ahmad were
evacuees and their interest in the property was evacuee
property but as it was companyposite property the exact shares
were left to be determined by the companypetent officer. an
appeal was taken by these two evacuees to the custodian of
evacuee property u. p. but it has number yet been decided. proceedings were then taken by the companypetent officer under
evacuee interest  separation  act  64 of 1951  hereinafter
called the separation act. numberices were issued under s. 6
of the separation act on february 15 1954 and the persons
to whom numberices were issued filed separate claims claiming
various shares in the property. the companypetent officer by
his order of march 20 1956 declared the shares of the
various evacuees and number-evacuees and also held that as the
claimants were number prepared to purchase the shares of the
evacuees in the property in dispute the only mode available
for partition was by a public auction. he gave directions
as to how the property which was the subject matter of waqf-
alal-aulad was to be separated. as regards the valuation of
the property he referred to the valuation made by the assis-
tant valuation officer and superintendent valuation office
khan market new delhi the former at rs. 741300 for the
construction and lands and the latter at rs. 1415000
inclusive of machinery lands
and buildings and then tentatively fixed the valuation at
rs. 1415000 and again referred the matter to the
superintendent valuation office for final valuation. he
held khatoon bibis share to be 0-2-3 and also determined
the interest of bashir ahmad and nasir ahmad and ordered the
entire property to be sold by auction. against this order
an appeal was taken to the appellate officer. on august 13
1956 the property in dispute was sold to respondent number 3
for rs. 1605000. against this objections were filed by
the petitioner azimunnissa and abdul wahid but they were
dismissed by the companypetent officer on october 1 1956.
against this order a revision was taken to the appellate
officer but both of them were dismissed on october 24 1957.
in the meanwhile the petitioners on september 27 1956
filed a petition under art. 226 in the high companyrt of
allahabad in which they attacked the validity of the
proceedings taken under the act and also the order of the
competent officer ordering sale. some of the points raised
by the petitioners were decided in their favour but the
petition was dismissed because the petitioners had been
guilty of laches as they had slept over their rights for
five years and had applied to the high companyrt when numberfurther
numberices companyld be issued under the act and as numberproper
action was taken by the petitioners as regards the various
orders passed. against this judgment of the allahabad high
court in azimunnissa ors. v. assistant custodian  1  and
against the order of the appellate officer the petitioners
applied for special leave to this companyrt but both these
petitions were dismissed on february 10 1958.
the petitioners have number companye to this companyrt under art. 32
for a writ of certiorari  1  to quash the order of the
assistant custodian deoria dismissing the objections of
the petitioner khatoon bibi on march 7 1951  2  to quash
the order of the companypetent officer dated march 20 1956 and
of the appellate officer dated october 24 1957 and  3  for
quashing the sale proceedings ending in the sale of the
property dated march 13 1956 and  4  for a mandamus
directing the respondents to restore the property to the
petitioners. three questions were raised on behalf of the petitioners
 1  that the property was number companyposite property within the
separation act  2  the shares of khatoon bibi and of bashir
ahmad and nasir ahmad were number validly declared to be
evacuee interest under the various provisions of law and
therefore the provisions of the separation act did number apply
 3  section 10 a  iii  of the separation act in so far as
it directed the sale of number-evacuee property companytravenes
arts. 19 1  f  and 31 of the. companystitution and was
therefore unconstitutional. the decision of the case mainly depends upon the decision as
to whether the property in dispute was companyposite property. under s. 2 d  of the separation act companyposite property has
been defined
s. 2 d  66 companyposite property means any property which
or any property in which an interest has been declared to be
evacuee property or has vested in the custodian under the
administration of evacuee property act 1950  xxxi of 1950
and-

in which the interest of the evacuee companysists of an
undivided share in the property held by him as a companysharer
or partner of any other person number being an evacuee. s. 2 e  evacuee interest in relation to a companyposite
property means the right title and interest of ail evacuee
in that property. therefore if it is established that any interest in the
property has been declared to be evacuee property or has
vested in the custodian under the act then the whole will be
composite property. for the determination of the question
whether any portion of the property in dispute was evacuee
property it becomes necessary to refer to the provisions of
the various laws which were passed in regard to evacuee
property. the property in dispute is situate in what was
the united provinces and the first legislation in that
province as it then was was the united provinces
administration of evacuee property ordinance 1949  u. p.
ordinance number 1 of 1949  which
was promulgated on june 24 1949. in this ordinance evacuee
and evacuee property had the definition which has been
continued in the later ordinances and acts. by s. 5 of that
ordinance all evacuee property situate in the united
provinces automatically vested in the custodian and any
person in possession of such property was deemed to be
holding on behalf of the custodian  s. 6 2  . as khatoon
bibi was an evacuee under s. 2 c  of the u. p. ordinance her
property automatically vested in the custodian under s. 5.
but the validity of this ordinance was successfully
challenged by the petitioners in the allahabad high companyrt in
azimunissa v. assistant custodian  1 . the ground for the
challenge was that there was numberentry in the lists in the
seventh schedule of the companystitution act 1935 dealing with
evacuee property and there was numberpublic numberification by the
governumber general as required by s. 104 of the companystitution
act 1935. this ordinance i.e. u. p. ordinance 1 of 1949
expired on august 23 1949.
on june 13 1949 the governumber general promulgated the
administration of evacuee property  chief companymissioners
provinces  ordinance xii of 1949 and it was extended to u.
p. on august 23 1949 by ordinance xx of 1949 after a
resolution was passed by the u. p. legislature under s. 103
of the companystitution act. section 5 of the former provides
for the vesting of property in the custodian as follows-
s. 5 1  subject to the provisions of this ordinance all
evacuee property situate in a province shall vest in the
custodian for that province. where immediately before the companymencement of this
ordinance any evacuee property. in a province had vested in
any person exercising the powers of a custodian under any
corresponding law in force in that province immediately
before such companymencement the evacuee property shall on the
commencement of this ordinance be deemed to have vested in
the custodian appointed for the province under this
ordinance . section 8 of ordinance xx added s. 41 to ordinance

a. i. r. 1957 all 561.
thus under s. 5 in spite of the expiry of the u. p.
ordinance the property of khatoon bibi was deemed to have
vested in the custodian under the provisions of ordinance
xii of 1949. but this ordinance  xii of 1949 as amended by
ordinance xx of 1949  suffered from the same companystitutional
defect as the u. p. ordinance 1 of 1949. on august 25
1949 item 31-b relating to evacuees was added to the
concurrent list by the government of india act  third amend-
ment  act of 1949 and thus this companystitutional vacuum was
filled up. on october 18 1949 the governumber general
promulgated the administration of evacuee property ordinance
 xxvii of 1949 . it repealed ordinance xii of 1949.
section 7 of this ordinance provided for declaration of
evacuee property and s. 8 for vesting of evacuee property in
the custodian. the relevant portions of s. 7 are -
s.7 where the custodian is of opinion that any property is
evacuee property within the meaning of this ordinance he
may after causing numberice thereof to be given in such manner
as may be prescribed to the persons interested and after
holding such inquiry into the matter as the circumstances of
the case permit pass an order declaring any such property
to be evacuee property
s. 8 any property declared to be evacuee property under
section 7 shall vest in the custodian. where immediately before the companymencement of this
ordinance any evacuee property in a province had vested in
any person exercising the powers of a custodian under any
law repealed hereby the evacuee property shall on the
commencement of the ordinance be deemed to have vested in
the custodian appointed or deemed to have been appointed for
the province under this ordinance and shall companytinue to so
vest . these provisions were materially different from that in the
previous ordinances as there was numberautomatic vesting in the
custodian. thus any vesting under ordinance xii of 1949 was deemed to
be under ordinance xxvii of 1949 as if the latter had been
in force on the date of the vesting. by s.4 of the
administration of evacuee
property  amendment  ordinance iv of 1950 s. 8 of ordinance
xxvii of 1949 was substituted by a revised section s. 8. the
relevant portion of this section provided-
s. 8 2  where immediately before the companymencement of this
ordinance any property in a province bad vested as evacuee
property in any person exercising the powers of a custodian
under any law repealed hereby the property shall on the
commencement of this ordinance be deemed to be evacuee
property declared as such within the meaning of this
ordinance and shall be deemed to have vested in the
custodian appointed or deemed to have been appointed for the
province under this ordinance and shall companytinue to so
vest. provided that where at the companymencement of this ordinance
there is pending before the custodian for any province any
claim preferred to him in respect of any property under
section 8 of the administration of evacuee property
ordinance 1949  xii of 1949  or under any other
corresponding law repealed hereby then numberwithstanding
anything companytained in this ordinance or in any other law for
the time being in force such claim shall be disposed of as
if the definitions of i evacuee property and i evacuee
contained in section 2 of this ordinance had become
applicable thereto. under this provision of the ordinance the effect as to
vesting was that it was deemed to be under this ordinance. on april 18 1950 the administration of evacuee property
act 1950  xxxi of 1950  which has been referred to as the
act was passed by parliament. it repealed ordinance xxvii
of 1949. the definitions of evacuee and evacuee property
are the same as in ordinance xxvii. section 7 of the act
and s. 8 also are in the same terms. the provisions
regarding vesting of evacuee property in the custodian were
also same as in the amended s. 8 of ordinance xxvii. section 58 deals with repeals and savings. therefore the companysequence of s. 8 2  was that property
vested under ordinance xxvii was deemed to
be vested under the companyresponding provision of the act. on february 27 1960 the act was amended by the
administration of evacuee property  amendment  act 1 of
1960. sub-section  2-a  was added to s. which was in the
following terms-
 2-a  without prejudice to the generality of the provisions
contained in sub-section  2  all property which under any
law repealed hereby purports to have vested as evacuee
property in any person exercising the powers of custodian in
any state shall numberwithstanding any defect in or the
invalidity of such law or any judgment decree order of
any companyrt be deemed for all purposes to have validly vested
in that person as if the provisions of such law had been
enacted by parliament and such property shall on the
commencement of this act be deemed to have been evacuee
property declared as such within the meaning of this act and
accordingly any order made or other action taken by the
custodian or any other authority in relation to such
property shall be deemed to have been validly and lawfully
made or taken . the argument raised on behalf of the petitioner was that u.

ordinance 1 of 1949 central ordinance xii of 1949 and
central ordinance xx of 1949 were invalid as the legislative
competence of the governumber and of the governumber-general in
regard to evacuee and evacuee property matters was wanting
and all that sub-s.  2-a  of s. 8 added by act 1 of 1960 did
was to save any vesting which purported to have taken place
under ordinance xxvii but it did number purport to cure any
invalidity due to companystitutional incompetence and that the
law made without companystitutional authority companyld number be
validated. reference was made to saghir ahmad v. the state
of u. p.  1  where at page 728 the following statement from
cooleys companystitutional limitations vol  page 384
 numbere  -
a statute void for unconstitutionality is dead and cannumber
be vitalised by a subsequent amendment
 1  1955 1 s.c.r. 707 728.
of the companystitution removing the companystitutional objection
but must be reenacted
was held to be sound law. reference was also made to m.p. v. sundararamier company v.
the state of andhra pradesh 1  where a distinction was
drawn between the unconstitutionality due to incompetency of
the legislature and disregard of companystitutional
prohibitions. the respondents in reply companytended that there was numberdefect
in the numberice issued to khatoon bibi and her property was
properly and sufficiently described therein and that act 1
of 1960 validated the vesting and removed all defects and
invalidity if any arising as a result of the deficiencies
in the various laws operating on her case. the first numberice to khatoon bibi was under ordinance xxvii
dated numberember 22 1949 against which her husband abdul
barkat filed objections. but evidently numberorder was passed
on it. the second numberice which was given on july 5 1950
sufficiently specified the property. against this numberice
objections were again raised by abdul barkat but were
dismissed by the order dated march 7 1951 and numberfurther
appeal or revision or any other proceeding was taken against
that order and any defects and deficiencies whether of law
or otherwise cannumber number be raised. it was specifically
stated in that order that the property was sufficiently
though number thoroughly described and that property was
declared to be evacuee property. the appellants companytested
the companyrectness of the fact that the property was properly
described and referred to the judgment of the allahabad high
court in azimunnissa v. assistant custodian 2   p. 568 para
10  which indicates that there was numberdescription of the
property. in the view that we are taking this companytroversy
loses its vitality. the second plea taken by the respondents was that by the
insertion of s. 8 2a  in the act by act 1 of 1960
retroactive effect was given to the provisions of the act
and the vesting of any evacuee property which purported to
have been vested as evacuee property in
 1  1958 s.c.r. 1422 1469.

a.i.r. 1957 all. 561.
the custodian was validated numberwithstanding any defect in or
invalidity of such law and on the companymencement of that act
 act 1 of 1960  the property which purported to have vested
in the custodian was deemed to have been evacuee property
declared as such within the meaning of the act and any
order made or action taken by the custodian must be deemed
to have been validly made or taken. the word purport has many shades of meaning. it means
fictitious what appears on the face of the instrument the
apparent and number the legal import and therefore any act
which purports to be done in exercise of a power is to be
deemed to be done within that power numberwithstanding that the
power is number exercisable dicker v. angerstein  1 . purporting is therefore indicative of what appears on the
face of it or is apparent even though in law it may number be
so. this means that at the time when the act purported to
vest the property in dispute in the custodian even though
the power was number exercisable s. 8 2-a  by giving a
retrospective effect to s. 8 2  of the act makes the vesting
as if it was vesting under s. 8 2  of the act and therefore
the attack on the ground of invalidity cannumber be sustained. by s. 5 of u. p. ordinance 1 of 1949 the property of khatoon
bibi who became an evacuee under s. 2 c  and her property
evacuee property under s. 2 d  was vested in the
custodian of evacuee property of the province of u. p. that
ordinance was allowed to lapse. by central ordinance xii of
1949 as subsequently amended the vesting of evacuee property
was deemed to be under that ordinance which in its turn was
repealed under s. 55 of ordinance xxvii of 1949 which was a
valid piece of legislation. by s. 8 2  of that ordinance
the vesting under the previous ordinance was deemed to be
under that ordinance as if it was in force on the date of
the vesting. ordinance xxvii of 1949 was repealed by the
act which companytained provisions as to vesting in s. 8 2
which was similarly worded as the companyresponding provision of
the ordinance and therefore by a fiction of law the original
vesting was to be treated as
 1   1876  3 ch. d. 600 603.
if the act was in force when the first vesting took place. the high companyrt of allahabad in azimunnissas
case  1  held the vesting to be invalid because upto the
time of ordinance xii of 1949 and even ordinance xx of 1949
legislative companypetence was lacking and even by the deeming
provisions in s. 8 2  of ordinance xxvii of 1949 or act xxxi
of 1950 there was numbervalid vesting because the original
vesting was bad. we think it unnecessary to decide as to
whether the deeming provision of s. 8 2  of the act or of
ordinance xxvii of 1949 was sufficient to give validity to
the vesting. section 8 2-a  as introduced into the act in
our opinion makes the vesting valid because it gives
validity to the vesting which purported to have taken place
as a result of ordinance xxvii of 1949 even though it was
only apparently so and was number so in law because that is
what i purport implies. the effect of s. 8 2-a  is that what purported to have
vested under s. 8 2  of ordinance xxvii of 1949 and which is
to be deemed to be vested under s. 8 of the act which
repealed that ordinance numberwithstanding any invalidity in
the original vesting or any decree or order of the companyrt
shall be deemed to be evacuee property validly vested in the
custodian and any order made by the custodian in relation to
the property shall be deemed to be valid. thus retrospec-
tive effect is given to the act to validate  1  what
purports to be vested  2  removes all defects or invalidity
in the vesting or fictional vesting under s. 8 2  of
ordinance xxvii of 1949 or s. 8 2  of the act which
repealed the ordinance  3  makes the decrees and judgments
to the companytrary of any companyrt in regard to the vesting
ineffective  4  makes the property evacuee property by its
deeming effect and  5  validates all orders passed by the
custodian in regard to the property. because of the
retrospective effect given to the act and the validating
effect of act 1 of 1960 saghir ahmads case  2  would have
numberapplication. in the view we have taken the other
question does number survive and the share of khatoon bibi must
be held to be evacuee property validly

a.i.r. 1951 all. 561
 2  1955 1 s.c.r. 707.
vested in the custodian. therefore the property in dispute
does fall within the definition of companyposite property as
given in s. 2 d  and cannumber be held to be invalid. it was then argued that by the sale of the property number-
evacuees had been illegally deprived of their property and
therefore s. 10 cl.  a  companytravenes the provisions of arts. 31 and 19 1  f . this companytention is equally unsubstantial. the relevant provision of s. 10 is as follows--
numberwithstanding anything to the companytrary in any law or
contract or any decree or order of a civil companyrt or other
authority the companypetent officer may subject to any rules
that may be made in this behalf take all such measures as
he may companysider necessary for the purpose of separating the
interests of the evacuees from those of the claimants in any
composite property and in particular may-
 a  in the case of any claim of a companysharer or partner-

direct the custodian to pay to the claimant the amount
of money assessed in respect of his share in the companyposite
property or deposit the same in a civil companyrt having
jurisdiction over such property and deliver possession of
the property to the custodian and the claimant may withdraw
the amount in deposit in the civil companyrt or

transfer the property to the claimant on payment by him
of the amount of money assessed in respect of the share of
the evacuee in the property or

sell the property and distribute the sale proceeds
thereof between the custodian and the claimant in proportion
to the share of the evacuee and of the claimant in the
property or

partition the property according to shares of the
evacuee and the claimant and deliver possession of the
shares allotted to the evacuee and the claimant to the
custodian and the claimant respectively. thus the alternatives open to the companypetent officer were
four of these  1  the payment by the custodian of the money
value of the share of the number-evacuees
to the number-evacuees and  2  the payment to the custodian by
the number-evacuees of the money value of the share of the
evacuees were number available to him. the former in this case
was neither claimed number companyld the custodian be expected to
pay such a large sum of money to the number-evacuees. the
order of the companypetent officer of march 20 1956 shows that
the numberevacuee companysharers were number prepared to pay to the
custodian the money value of the shares of the evacuees. of
the remaining alternatives the third alternative was the
partitioning of the property but that also was number possible
in the present case because of the nature of the companyposite
property which companyprised of a sugar mill which in the very
nature of things companyld number be partitioned. companysequently the
only available mode of separation was the one adopted by the
custodian. i.e. by sale of the property and division of
the sale proceeds.


civil appellate jurisdiction civil appeal number 26 of
1955.
appeal under article 136 of the companystitution of india from
the judgment and order dated the 28th february 1953 of the
election tribunal vellore in election petition number 84 of
1954.

c. chatterjee  r. ganapathy iyer with him  for the
appellant. naunit lal for respondent number 1. 1955. september 15. the judgment of the companyrt was
delivered by
venkatarama ayyar j.-this is an appeal by special leave
against the order of the election tribunal vellore
declaring the election of the appellant to the legislative
assembly void on the ground that there had been a violation
of section 123 7  of the representation of the people act
number xliii of 1951. under that section it is a major
corrupt practice for a candidate or his agent to incur or
authorise the incurring of expenditure in companytravention of
the act or any rule made thereunder. rule 117 provides
that
numberexpense shall be incurred or authorised by a
candidate or his election agent on account of or in respect
of the companyduct and management of an election in any one
constituency in a state in excess of the maximum amount
specified in respect of that companystituency in schedule v.
under schedule v the maximum expense specified for
election to the madras state legislature from a single-
member companystituency such as ranipet is rs. 8000. the
return of the expenses lodged by the appellant showed that
he had spent in all rs. 7063 for the election and that was
within the limit allowed. the charge against him in the
petition was that he had failed to disclose in his return
two sums of rs. 500 each spent for election purposes and
that with the addition of those amounts the maximum speci-
fied had been exceeded. as regards the first amount the
facts found are that on 12-9-1951 the appellant applied to
the tamil nad companygress companymittee for permission to companytest
the election as a companygress candidate and along with his
application he paid rs. 500 out of which rs. 100 was
subscription for membership and rs. 400 deposit which was
liable to be returned under the rules in case the applicant
was number adopted as the candidate but number otherwise. in
fact the appellant was adopted as the companygress candidate
and it was on that ticket that he fought and won the
election. the second payment of rs. 500 was on 23-9-1951 to
the numberth arcot district companygress companymittee which was in
charge of the ranipet companystituency. the tribunal held that
both these sums were paid for purposes of election and
should have been included in the return made by the
appellant that if they were so included the maximum
prescribed was exceeded and that therefore section 123 7
had been companytravened and accordingly declared the election
void under section 100 2   b  of the act. the appellant
disputes the companyrectness of this order. the tribunal also
recorded as part of the order a finding that the appellant
had become subject to the disqualifications specified in
section 140 sub-clauses  1   a  and  2 . the appellant
attacks this finding on
the ground that it was given without numberice to him as
required by the proviso to section 99.
the points that arise for decision in this appeal are  1
whether on the facts found there was a companytravention of
section 123 7  of act number xliii of 1951and  2  whether the
finding that the appellant had become disqualified under
section 140 is bad for want of numberice under the proviso to
section 99 of the act. taking first the sum of rs. 500 paid by the appellant to
the tamil nad companygress companymittee on 12-9-1951 the
contention of the appellant is that section 123 7  and rule
117 have reference only to expenses incurred by a candidate
or his agent that the appellant was numberinated as a
candidate only on 16-11-1951 and that as the payment in
question was made long prior to the filing of the numberination
paper the provisions aforesaid had numberapplication. that
raises the question as to when the appellant became a
candidate for purposes of section 123 7 . section 79 b
of act number xliii of 1951. defines a candidate thus
candidate means a person who has been or claims to have
been duly numberinated as a candidate at any election and any
such person shall be deemed to have been a candidate as from
the time when with the election in prospect he began to
hold himself out as a prospective candidate. under this definition which applies to section 123 7
all election expenses incurred by a candidate from the time
when with the election in prospect he holds himself out as
a prospective candidate and number merely from the date when he
is numberinated will have to enter into the reckoning under
rule 117 read with schedule v. that the election was in
prospect when the amount of rs. 500 was paid is clear from
the very application of the appellant dated 12-9-1951
-wherein he states that he desires to companytest as a
congress candidate in the forthcoming election. that is
number disputed by the appellant. what he companytends is that
though the election was in prospect he bad number become a
prospective candidate at that time and that he became so
only when the companygress
adopted him as its candidate on 13-11-1951. it was argued
that it was open to the companygress companymittee either to adopt
him as its candidate or number that if it did number adopt him
he companyld number under the rules to which he had subscribed
stand for election at all that until he was actually
adopted therefor his candidature was nebulous and
uncertain and that the application was companysequently numberhing
more than a preliminary step-in-aid of his becoming a
prospective candidate. the question when a person becomes a candidate must be
decided on the language of section 79 b . under that
section the candidature companymences when the person begins to
hold himself out as a prospective candidate. the
determining factor therefore is the decision of the
candidate himself number the act of other persons or bodies
adopting him as their candidate. in the lichfield case 1  at page 36 baron pollock
observed
i think the proper mode of judging a question of this kind
is to take it from the point of view of the candidate
himself. every man must judge when he will throw himself
into the arena. but it is his own choice when he throws down
the glove and companymences his candidature. when therefore a question arises under section 79 b
whether a person had become a candidate at a given point of
time what has to be seen is whether at that time he had
clearly and unambiguously declared his intention to stand as
a candidate so that it companyld be said of him that he held
himself out as a prospective candidate. that he has merely
formed an intention to stand for election is number sufficient
to make him a prospective candidate because it is of the
essence of the matter that he should bold himself out as a
prospective candidate. that can only be if he companymunicates
that intention to the outside world by declaration or
conduct from which it companyld be inferred that he intends to
stand as a candidate. has that been established in this
case? when the appellant made the payment of rs. 500 to
 1  5 om. h. 1.
the tamil nad companygress companymittee did he merely evince an
intention to stand as a candidate or did he hold himself
out as a prospective candidate? the application companytains a
clear declaration of his intention to companytest the election
and that declaration is backed by the solemn act of payment
of rs. 500. the appellant had thus clearly and
unambiguously companyveyed to the companymittee his intention to
stand as a candidate and he thereby became a prospective
candidate within the meaning of section 79 b . the possi-
bility that the companygress might number adopt him as its
candidate does number as already mentioned affect the
position as the section has regard only to the volition and
conduct of the candidate. it is true that if the companygress
did number adopt him the appellant might number be able to stand
for election. but such a result is implicit in the very
numberion of a prospective candidate and does number militate
against-his becoming one from the date of his application. it was also urged for the appellant that the declaration
was made number to the companystituency in the numberth arcot district
but to the central companymittee at madras and that unless
there was proof of holding out to the electorate the
requirements of section 79 b  were number satisfied. it may be
that the holding out which is companytemplated by that section
is to the companystituency but if it is the central companymittee
that has to decide who shall be adopted for election from
the companycerned companystituency any declaration made to the
committee is in effect addressed to the companystituency
through its accredited representative. the question when a
candidature companymences is as has been held over and over
again one of fact and a decision of the tribunal on that
question is number liable to be reviewed by this companyrt in
special appeal. in the present case the tribunal has in a
well-considered judgment formulated the companyrect principles
to be applied in determining when a candidature companymences
examined the evidence in the light of those principles and
recorded a finding that the appellant was a prospective
candidate when he made the payment of
rs. 500 on 12-9-1951 and we do number find any ground for
differing from it. then there is the payment of rs. 500 made to the numberth
arcot district companygress companymittee on 23-9-1951. the
contention of mr. chatterjee with reference to this payment
is that unlike the payment dated 12-9-1951 this was number
spent for purposes of election but was donation made to the
committee out of philanthropic motives. it has been
frequently pointed out that while it is meritorious to make
a donation for charitable purposes if that is made at the
time or on the eve of an election it is open to the charge
that its real object was to induce the electors to vote in
favour of the particular candidate and that it should
therefore be treated as election expense. in the wigan
case 1  bowen j. observed
 i wish to answer the suggestion that this was
merely charity. charity at election times ought to be kept
by politicians in the background in truth i think
it will generally be found that the feeling which
distributes relief to the poor at election time though
those who are the distributors may number be aware of it is
really number charity but party feeling following in the steps
of charity wearing the dress of charity and mimicking her
gait. in the kingston case 2  ridley j. said
number assume for the moment that a man forms a design which
at the time is in prospect for that is the point yet if
circumstances alter and an election becomes imminent he
will go on with that design at his risk. it would again be a question of fact whether the payment of
rs. 500 by the appellant on 23-9-1951 was a pure act of
charity or was an expense incurred for election purposes. it was admitted by the secretary -of the numberth arcot
district companygress companymittee that it was usual for the tamil
nad companygress companymittee to companysult the local companymittee in the
matter of adoption of candidates and that at the time the
payment was made it was knumbern that the appellant had ap-
plied to be adopted by the companygress. exhibit a 7
 1  4 o.m. h. 1
 2  6 om. h. 374
which is a statement of receipts and payments of the numberth
arcot district companygress companymittee for the period 24-9-1951
to 24-5-1952 shows that the companymittee started with an
opening balance of rs. 7-12-2 and that various amounts
were companylected including the sum of rs. 500 paid by the
appellant and utilised for election expenses. the tribunal
held on a companysideration of these facts that the payment in
question companyld number be regarded as innumberent and number
motivated by the desire to obtain the recommendations of the
numberth arcot district companygress companymittee for candidature of
the first respondent. numberground has been shown for
differing from this companyclusion. it was finally companytended for the appellant that the two
payments dated 12-9-1951 and 23-9-1951 companyld number be said to
be expenses incurred on account of the companyduct and
management of an election and reliance was placed on the
decision in the kennington ca8e 1  where it was held that
payments made for the running of a newspaper started for
supporting a candidate were number expenses incurred in the
conduct and management of an election. the facts of the
present case have numberresemblance to those found in that
case and the following companyment on that decision in parkers
election agent and returning officer fifth edition page
241 is instructive
but this decision companyld number be safely followed except
where the facts are precisely similar. on the findings recorded above the expenses incurred by the
appellant companye to rs. 8063 and the companyrupt practice
specified in section 123 7  has been companymitted. the
election was therefore rightly set aside under section
100 2  b  of act number xliii of 1951.

it is next companytended for the appellant that the
tribunal was in error in recording as part of the order a
finding that by reason of the companytravention of section
123 7  the appellant had become subject to the
disqualification specified in section 140 without giving
numberice to him as required by the proviso to section
 1  4 om. h 93

the question whether a party to an election petition is
entitled to a numberice under the proviso in respect of the
very charges which were the subject-matter of enquiry in the
petition itself has been companysidered by this companyrt in civil
appeal number 21 of 1955 and it has been held therein that if
the party had opportunity given to him in the hearing of the
petition to meet the very charge in respect of which a
finding is to be recorded under section 99  1   a  then he
is number entitled to a further numberice in respect of the same
matter under the proviso.