judgement:
Appeal No. 101 of 1959.
Appeal by special leave from the judgment and order dated November 8, 1957, of the Deputy Custodian General, Evacuee Property, Now Delhi Revision Petition No. 17 R/55 of 1955.
Achhru Ram and K. L. Mehta for the appellants.
B.K., Khanna and, T. M. Sen, for the respondent No. 1.
N.S. Bindra and A. G. Ratnaparkhi, for the respondents Nos.
March 15.
The Judgment of the Court was delivered by MUDHOLKAR J.
The appellants who are admittedly displaced persons from West Pakistan were granted quasi permanent allotment of 24 standard acres and 15 3/4 units in the village of Raikot in Ludhiana District in 1949.
Their father Sardar Nand Singh who was 42 330 found entitled to quasi permanent allotment of 40 standard acres and 5 1/4 units of land was given quasipermanent allotment in another village named Humbran in the same district.
The two villages are, however, 25 miles or so distant from each other.
Nand Singh, therefore, made an application for consolidation of his lands with those of the appellants in the village Raikot.
During the pendency of this application he died and after his death, the, application was continued by the appellants.
This application was rejected by the Assistant Custodian on July 23, 1951 on the ground that no land was available in the village Raikot.
A revision petition preferred by the appellants against the order of the Assistant Custodian was dismissed by the Additional Custodian on August 20, 1952.
On October 7, 1952 the appellants preferred a revision application before the Custodian General.
During the pendency of the revision application the Additional Custodian for the State of Punjab cancelled the allotment of fourteen quasi permanent allottees of the village Karodian in the same district on the ground that these persons were entitled to allotment of suburban land a had been wrongly fitted in the village Karodian.
Acting suo motu the Additional Custodian made an order on October 31, 1952 cancelling the order of allotment of land in the village Raikot made in favour of the appellants in the year 1949 and instead allotted to them land in Karodian in substitution of :,the lands at Raikot and of the lands allotted to their father.
The land allotted was out of the land released upon the cancellation of allotment of lands in favour of the aforementioned 14 allottees.
These fourteen allottees preferred an application for review of the order cancelling their allotment on the ground that this cancellation was a result of misapprehension of the actual facts and that they were not entitled to allotment of suburban lands at all.
The appellants also preferred an application for review of the order cancelling their quasi permanent allotment in the village Raikot.
The Additional Custodian for the State of Punjab recommended to the Custodian General the restoration 331 of the land to the 14 allottees which had been taken away from them by reason of cancellation of the allotment in their favour by the order dated October 31, 1952.
The Additional Custodian admitted that these persons were not entitled to allotment of suburban land and that consequently their allotment had been wrongly made but referred the matter back to the Additional Custodian for decision.
The application made by the appellants was kept pending till the decision of the application of the 14 allottees of Karodian.
The Additional Custodian, however, dismissed the application on the ground that r. 14(6) of the Evacuee Property Rules which came into force on July 22, 1952, stood in the way of cancellation of the allotment in favour of the appellant.
On December 17, 1954, the Deputy Custodian General, before whom these allottees had preferred an application for revision, revised the order of the Additional Custodian and restored to the 14 allottees of Karodian the land which had been originally allotted to them.
and allotment of which had been cancelled earlier.
As a result of this order the allotment of Karodian land made in favour of the appellants automatically stood cancelled.
On January 6, 1955, the appellants moved the Deputy Custodian General for calling up their review application and for revising the order of October 31, 1952 passed by the Additional Custodian cancelling the allotment of Raikot lands which had originally been made in their favour in the year 1949.
Consequent upon the cancellation of the appellants ' allotment of the Raikot land they were allotted to respondents 2 to 4.
These persons were, therefore, impleaded as parties to the proceedings before the Deputy Custodian General.
By the order dated November 8, 1957 the Deputy Custodian General dismissed the appellants ' application.
The appellants have, therefore, come up to this Court by way of appeal with special leave.
The ground on which the appellants ' application was rejected by the Deputy Custodian General was that his jurisdiction to revise the order has been 332 taken away by virtue of the provisions of , (44 of 1954) and the notification issued thereunder on March 24, 1955.
In taking this view he has relied upon the decision in Bal Mukund vs The State of Punjab (1).
In that case the Court has held that the powers of the Custodian General to deal with matters of this kind have been taken away by the , and that these powers now vest in another authority and that there is no provision for continuing the pro ceedings which had been commenced under the , but had not been concluded.
Mr. Achhruram for the appellants challenged the correctness of this decision.
There is no specific provision in this Act to the effect that after its commencement the jurisdiction of the various authorities created by the , to deal with the allotment or cancellation of allotment of evacuee property shall cease.
What is urged by Mr. Khanna on behalf of the Custodian General is that this is the effect of the provisions of sections 12(2) and 19 of the Act.
Section 12 of the 1954 Act empowers the Central Government to acquire evacuee property for rehabilitation of displaced persons by publishing in the official gazette a notification to the effect that it has decided to acquire such evacuee property in pursuance of this provision.
It is common ground that by notification section R. 0. 697 dated March 24, 1955 the Central Government decided to acquire all evacuee property allotted to displaced persons by the Custodian under the "Conditions" contained in the notification of the Government of Punjab in the Department of Rehabilitation, No. 4892 6 dated July 8, 1949, except certain categories of property specified in the schedule.
The Raikot lands were allotted to the appellants under the aforesaid notification of the Government of Punjab.
It is not disputed on their behalf that they do not fall within any of the excepted categories of property, set out in the schedule.
Sub section 2 of section 12 of the Act (1) I.L.R. 1957 Punj.
333 provides that on the publication of the notification under sub section 1 the right, title or interest of any evacuee in the property specified in the notification shall immediately stand extinguished and that property shall vest absolutely in the Central Government free from all encumbrances.
The power of the Custodian under the , to allot any property to a person or to cancel an allotment existing in favour of a person rests on the fact that the property vests in him.
But the consequence of the publication of the notification by the Central Government under section 12(1) of the with respect to any property or a class of property would be to divest the Custodian completely of his right in the property flowing from section 8 of the , and vest that property in the Central Government.
He would, therefore, not be competent to deal with the property in any manner in the absence of any provision in either of these two enactments permitting him to do so.
No provision was, however, pointed out to us in either of these Acts whereunder despite the Vesting of the property in the Central Government the Custodian was empowered to deal with it.
Sub section
4 of section 12 of the 1954 Act provides that all evacuee property acquired under that section shall form part of the compensation pool.
Under section 16(1) of this Act the Central Government is empowered to take such measures as it considers necessary or expedient for the custody, management and disposal of the compensation pool.
Sub section
2 of section 16 empowers the Central Government to appoint such officers as it deems fit or to constitute such authority or corporation as it deems fit for the purpose of managing and disposing of the properties forming part of the compensation pool.
Section 19 of the Act provides that notwithstanding anything contained in any contract or any other law for the time being in force but subject to the rules that may be made under the Act the managing officer or managing corporation may cancel any allotment etc., under which any evacuee property acquired under the Act is held or 334 occupied by a person whether such allotment or lease was granted before or after the commencement of the Act.
This provision thus confers the power to deal with evacuee property acquired under the Act only on a managing officer appointed or managing corporation constituted under the Act and makes no mention whatsoever of the Custodian appointed under the .
No doubt, under section 10 of the the Custodian is empowered to manage evacuee property and in exercise of his power he will be competent to allot such property to any person or to cancel an allotment or lease made in favour of a person.
Apart from the fact that subsequent to the issue of the notification under section 12(1) of the , the property would cease to be evacuee property, the aforesaid powers of the Custodian would be in conflict with those conferred by section 19 of the 1954 Act on a managing officer or a managing corporation constituted under that Act.
In other words, to that extent the provisions of section 10 of the 1950 Act and section 19 of the 1954 Act cannot stand together.
As already stated the powers conferred by sub section
(1) of section 19 of the 1954 Act are to prevail notwithstanding anything contained in any other law for the time being in force.
Therefore, they must prevail over the provisions of B. 10 of the .
It is true that there, is nothing on record to show that a managing officer was appointed with respect to the Raikot properties acquired under the notification dated March 24, 1955.
But it is not necessary to ascertain that fact.
The point is, who, after the coming into force of the 1954 Act could cancel an allotment.
Section 10 says that only a managing officer or a managing corporation can do so.
This means that no one else can do so even though some other law may have authorised another person or authority to cancel an allotment.
Mr. Achhruram, however, contended that the appellants ' rights were protected by section 10 of the .
Section 10 runs as follows: 335 "Special procedure for payment of compensation in certain cases.
Where any immovable property has been leased or allotted to a displaced person by the Custodian under the conditions published (a)by the notification of the Government of Pun.
jab in the Department of Rehabilitation No. 4892 S or 4892 S dated the 8th July, 1949, or (b)by the notification of the Government of Patiala and East Punjab States Union in the Department of Rehabilitation No. 8R or 9R, dated the 23rd July, 1949, and published in the official Gazette of that State dated the 7th August, 1949, and such property is acquired under the provisions of this Act and forms part of the compensation pool, the displaced person shall, so long as the property remains vested in the Central Government, continue in possession of such property on the same conditions on which he held the property immediately before the date of the acquisition, and the Central Government may, for the purpose of payment of compensation to such displaced person, transfer to him such property on such terms and conditions as may be prescribed.
" It is followed by an explanation; but that explanation has no bearing upon the point urged by Mr. Achhruram.
It is no doubt true that the Raikot lands were allotted to the appellants under the notification referred to in el.
(a) of this section and, therefore, they would be entitled to the benefits conferred by this section provided they satisfied all the other requirements of this section, express or implied.
It is implicit in this section that the displaced person to whom land was allotted "held" the land and was in possession of such property at the date of the notification.
It is not disputed that the appellants ceased to hold and had lost possession of the Raikot lands before the publication of this notification.
Even assuming that the order of the Custodian cancelling the allotment in their favour was erroneous there will be no difference in the result because what is essential is the facts of holding and possession of the land on the date of the notification.
336 Mr. Achhruram then referred to the "Conditions" on which allotments of land may be made under the notification referred to in sub section
10(a) and pointed out that under condition No. 6 the Custodian or rehabilitation authority would be competent to resume or cancel an allotment only on one of the grounds set out in that condition.
He said that the cancellation of the allotment in favour of the appellants was impermissible inasmuch as it was not based upon any of the grounds set out in the 6th condition.
That may or may not be so.
We would repeat that the appellants had lost their possession before the publication of the notification and are thus not entitled to the protection of the section.
Moreover, the Custodian, by reason of the divesting of the property, as from March 24, 1955, had become functus officio with respect to it and could not rectify any error made by him in the past in the matter of cancellation of allotment.
It is true that had the appellants been in possession at the critical time they would have had the right to obtain a permanent transfer in their favour of the Raikot lands and by virtue of what happened and without any fault on their part they have been deprived 'of that right.
That is indeed unfortunate but none of the authorities created by the could rectify the wrong that has been done by them to the appellant.
The question whether it could be rectified by any of the authorities constituted by the or not was not canvassed before us and, therefore, there is no occasion for us to say anything about it.
Mr. Achhruram contended that r. 74 of the Displaced Persons (Compensation and Rehabilitation) Rules, 1955 stood in the way of the Custodian allotting the Raikot property to the respondents during the pendency of the proceedings before the Custodian General.
That rule reads as follows: "Allotments which are the subject matter of dispute.
No property in a rural area in respect of which any case is pending in a Civil Court or before a Deputy Custodian, Custodian or Custodian General, shall be transferred to the allottee".
337 The aforesaid rule is in Chapter X headed "Payment of compensation under section 10 of the Act" and deals with a transfer of property to an allottee by way of final settlement of his claim to compensation and does not deal with the question of allotment on a quasi permanent basis.
Moreover, this rule applies to a proceeding before an authority created by the and not to an authority created by the .
There is, therefore, no substance in this argument.
Finally Mr. Achhruram referred to section 17 of the 1954 Act and to r. 102 of the Rules framed thereunder and said that the powers of the managing officers appointed under the Act are confined only to properties which are entrusted to them for management and not with respect to any other property.
Section 17 deals with the function; and duties of managing officers and managing corporation.
Sub section
(1) provides that managing officers and managing corporations will perform such functions as may be assigned to them under the Act.
Sub section
(2) provides that subject to the provisions of the Act and the rules made thereunder, a managing officer or a managing corporation may, among other things, take such measures as he or it considers it necessary or expedient for the purpose of securing, administering, preserving, managing or disposing of any property in the compensation pool entrusted to him or it. etc.
The argument is that unless there is such "entrustment" the managing officer or managing corporation has no function to perform with respect to evacuee property.
His contention appears to be that there is nothing to show that this property was "entrusted" to a managing officer.
In the first place the section confers the particular powers On managing officers or managing corporations only and no one else.
Therefore, even if no managing officer or managing corporation was appointed with respect to that property no one else could exercise the power of cancellation of allotment.
Further, there is no ground in the special leave petition or in the statement of the 43 338 case that there is no entrustment in fact of this property or this class of properties to a managing officer or managing corporation.
He cannot, therefore, be permitted to make out a new case at this stage of argument.
That apart, this argument assumes that the property, despite the publication of the notification under section 12(1) of the Act continues to be evacuee property.
Again, this provision is a general provision and the particular provision regarding cancellation of allotment is section 19(1) of the Act which does not refer to entrustment at all and it is this provision which must prevail over the general provision.
He then contends that the provisions of section 19(1) of the Act being subject to rules made under the Act must be read along with r. 102 which deals with cancellation of allotments of leases.
That rule reads thus: "Cancellation of allotments and leases A managing officer or a managing corporation may sell any property in the compensation pool entrusted to him or to it, cancel an allotment or terminate a lease, or vary the terms of any such lease or allotment if the allottee or lessee, as the case may be (a)has sublet or parted with the possession of the whole or any part of the property allotted or leased to him without the permission of a competent authority, or (b)has used or is using such property for a purpose other than that for which it was allotted or leased to him without the permission of a competent authority, or (c) has committed any act which is destructive of or permanently injurious to the property, or (d) for any other sufficient reason to be recorded in writing; Provided that no action shall be taken under this rule unless the allottee or the lessee, as the case may be, has been given a reasonable opportunity of being heard.
" He points out that in the first place, the rule speaks of land 'entrusted ' to the manager and, therefore would operate only if entrustment is established.
What we have said in regard to section 17 would apply 339 here also.
He then says that this rule restricts the powers of a managing officer or a managing corporation in the matter of cancellation of allotment in the sense that it permits cancellation only on certain specified grounds and, therefore, it cannot be said that section 19(1) of the Act is completely in conflict with section 10 of the in so far as the question of cancellation of allotment is concerned.
We cannot accept the argument because, apart from the fact that the acquired properties have ceased to be evacuee properties, el.
(d) of r. 102 permits the managing officer or managing corporation to cancel allotment "for any other sufficient reason to be recorded in writing".
The only effect of r. 102 is to permit cancellation 'of an allotment for reasons stated.
That is all.
In our opinion, therefore, this rule does not help the appellants.
Mr. Khanna had raised three other points but upon the view which we have taken as to the effect of sections 12 and 19 of the Act, it is not necessary to consider them.
The appeal is accordingly dismissed.
We, however, make no order as to costs because had there been no delay on the part of the Custodian General in dealing with the revision application the present situation would not have arisen.
Appeal dismissed.

dataset_name: IN-Abs

summary:
The appellants who are displaced persons from West Pakistan, were granted quasi permanent allotment of some lands in village Raikot in 1949.
On October 31, 1952, the Assistant Custodian cancelled the allotment of 14 allottees in village Karodian, and also cancelled the allotment of the Appellants in Raikot but allotted lands to them in village Karodian, and allotted the lands of Raikot to other persons.
The 14 allottees of village Karodian as well as the appellants applied for review of the orders of cancellation of their allotment.
The application of the 14 allottees was dismissed.
They preferred a revision to the Custodian General who cancelled the appellant 's allotment (1) Cal.
926. 329 in Karodian and restored the allotment of the 14 allottees on December 17, 1954 Thereupon,, on January 6, 1955, the appellants moved the Custodian General for calling up their review application and for revising the order of October 31, 1952, cancelling their allotment in Raikot.
The Custodian General refused to revise the order on the ground that his power to revise had been taken away by the .
The appellants contended that the, Custodian General had the power to revise the order.
Held, that after the enactment of the, , the Custodian General ceased to have the power to cancel allotments.
By, the issuing of a notification under, section 12(1) of this Act, the Fight, title or interest of the evacuee in the property specified in the notification was extinguished and the property vested absolutely in the Central.
Government.
The right of the Custodian manage the property under the , came to an end and the management vested in a new set of officers.
Even though no managing officer was appointed or a managing corporation, constituted under the new Act to manage the property no one else could 'exercise the power of cancellation of allotment.
Bal Mukund vs The State of Punjab, I.L.R. 1957 Punj.
712, approved.


judgement:
Appeal No. 52 of 1957.
Appeal from the judgment and decree dated April 22, of 1953, of the Patna High Court in Appeal from Original Decree No. 162 of 1946.
K.N. Bhattacharya and P. K. Chatterjee, for appellants.
N.C. Chatterjee, A. V. Viswanatha Sastri, R. section Chatterji and D. N. Mukherjee, for respondents Nos. 2 to 6. 1961.
March 22.
The Judgment of the Court was delivered by SUBBA RAO, J.
This appeal by certificate granted is directed against the judgment of the High Court of Judicature at Patna dated April 23, 1953, confirming that of the Subordinate Judge, Dhanbad, dated November 30, 1946.
The plaintiffs and the defendant are adjoining colliery owners at Kujama.
The plaintiffs ' land lies immediately to the south of the defendants ' land.
On August 2, 1,894, Raja of Jharia granted mukarrari lease of the coal and coal mining rights in 300 bighas of land in village Kujama to Satya Karan Banerjee and Girish Chandra Samanta.
On June 15,1900, his son, Raja Durga Prasad Singh, granted coal and coal 494 mining rights in respect of 400 bighas out of 592 bighas to one Jugal Kishore Lal.
Samanta purchased the leasehold interest of Banerji, and thereafter on November 23, 1900, it appears that Samanta bad surrendered his rights under the previous lease in favour of the Raja and taken a fresh lease of the same 300 bighas on a reduced rent.
On June 10, 1901, Jugal Kishore Lal granted a lease of 96 bighas out of his 400 bighas to one D. M. Mathews.
On the very same day D. M. Mathews, in his turn, granted a lease to one Walji Kheta in respect of the said 96 bighas.
Walji Kheta executed a kabuliat in favour of M. Mathews on October 11, 1901.
Walji Kheta represented the defendants.
By diverse transfers, the interest of Samanata vested in Bagdigi Kujama Collieries Limited.
The plaintiffs case was that as a result of a letter written by the Inspector of Mines on August 18, 1941, the plaintiffs made an inquiry and came to know that the defendants had encroached upon their coal mines on the northern side and removed coal from the encroached portion and had rendered the remaining coal of the encroached portion unworkable.
On those allegations, they asked for the following reliefs: (a)That the intermediate boundary line between the plaintiffs ' coal land and the defendants ' coal land be ascertained and fixed.
(b)That the area encroached upon by the defendants be ascertained and the defendants be directed to vacate the same,.
(c)That a permanent injunction be issued against the defendants restraining them from encroaching upon the plaintiffs ' coal land and cutting and removing coal therefrom.
(d)That an enquiry be made and the quantity of coal cut and removed by the defendants from the plaintiffs ' coal land as also the quantity of the coal rendered unworkable be ascertained and a decree for the value thereof by way of damages be granted to the plaintiffs against the defendants.
The defendants denied that they had encroached upon the plaintiff , ' coal land and stated that the suit was barred by limitation.
They further pleaded that the 495 plaintiffs would not be entitled to any damages.
The learned Subordinate Judge held that the defendant had encroached upon the plaintiff ' coal land, that the suit was not barred by limitations and that they would be entitled to the reliefs prayed for.
On appeal, the High Court of Patna accepted all the findings of the learned Subordinate Judge and dismissed the appeal.
Hence the present appeal.
The first question that arises for consideration is whether the defendants had encroached Upon the plaintiffs ' coal land.
The answer to this question depends upon the correct, delineation of the boundary line between the plaintiffs ' leasehold and the defendants ' leasehold.
It is common case that the southern boundary of the appellants ' leasehold is conterminous with the northern boundary of the respondents ' lease hold.
Learned counsel for the appellant contends that the said boundary should be fixed solely with reference to the boundaries given in the lease of 1894, whereas learned counsel for the respondents contends that no plan has been annexed to the said lease and, therefore, the boundary could more satisfactorily and definitely be fixed with reference to the plans annexed to the subsequent lease deeds executed in favour of the successors in interest of the appellant and the respondents.
To appreciate the rival contentions it is necessary to consider the various lease deeds in some detail.
On August 2, 1894, Raja Jaimangal Singh executed the lease deed (exhibit 1) in respect of 300 bighas in favour of the respondents ' predecessor in interest.
In that lease deed the northern boundary is described to be the remaining portion of mauza Kujama and the western boundary is described as Chatkari Jorh.
The foot note to the lease reads, "measuring 1101 feet in length running north and south by the side of the said Chatkari Jorh and area being 300 bighas by such measurement".
No plan was annexed to this lease deed.
On June 15, 1900, Jugal Kishore Lal, the predecessor in interest of the appellant, had obtained a lease (exhibit C) of 400 bighas 496 from Raja Durga Prasad Singh, the son of the previous Raja.
The southern boundary of this leasehold is given as the northern boundary limit of the leasehold land of Girish Chandra Samanta and others and the western boundary is shown as the eastern boundary of Chatkari Jorh as per the map annexed.
This lease deed clearly shows that the southern boundary of this plot is conterminous with the northern boundary of the leasehold land in favour of Samanta.
It may also be noticed at this stage that the map annexed to this lease deed has not been filed by the appellants.
It appears that Samanta purchased the interest of Banerji in the leasehold of 1894 and thereafter at the request of Samanta, on November 23, 1900, Durga Prasad Singh gave a fresh lease of the same holding to Samanta and incorporated a map in that lease, i.e., exhibit 3(b).
There, the northern boundary of the leasehold is described as the leasehold of Rajkumar Jugal Kishore Lal Singh Bahadur.
The plan, exhibit 3(b), annexed to this lease deed shows the boundary line between the two leaseholds.
The said plan is drawn to scale and the boundary line is drawn between point A marked in the plan and point B marked therein.
As the plan is a part of the lease deed, it is clear from the plan that the northern boundary of the leasehold of Samanta is the said line.
On June 10, 1901, Jugal Kishore Lal, that is, the predecessor in interest of the appellant demised a plot of 96 bighas carved out from his leasehold to Mathews under a deed exhibit C(1).
Mathews in turn demised under exhibit D the said land of 96 bighas to Walji Khetan representing the appellant.
In both these documents the southern boundary is shown as the northern boundary of the leasehold land of Samanta.
One interesting feature is that a map has been referred to in each of the documents and the said map shows that the line drawn from point A to point B is the boundary between the two leaseholds.
It may be mentioned that the said boundary line is exactly the same as that found in exhibit 3(b).
These documents to which the defendants ' predecessors were parties contain a clear admission that the boundary line between the two leaseholds i.e., between appellant 's and that of the respondents ' is the line between 497 A and B shown in plan exhibit 3(b).
We have no doubt that if the plan annexed to exhibit C was produced by the appellant, it would have also established that the dividing line between the two leaseholds is that found in exhibit 3(b).
The appellant, in our view, has suppressed the said plan and, therefore, in the circumstances, we are justified to draw an inference that, if produced, it would be against appellant 's contention.
From the aforesaid documentary evidence we hold, agreeing with the courts below, that the southern boundary of the appellant 's holding, which is conterminous with the northern boundary of the respondents ' holding, is the line between points A and B shown in exhibit 3(b).
The next question addressed by the courts below is how to ascertain the point A.
The argument of learned counsel for the appellant is that the map translated into words indicates that the correct boundary should be a line drawn from the true meeting point of the four villages Pandebera, Jharia Khas, Lodhna and Kujama at a bearing of 82.15 ', whereas the contention of the respondents is that the line actually drawn on the lease map correctly lays down the northern boundary of the respondents ' leasehold.
It is settled law that a map referred to in a lease should be treated as incorporated in the lease and as forming part of the document: see Darapali Sadagar vs Najir Ahamed (1).
As in this case the map is drawn to scale and incorporated in the lease deed, it is not permissible to ignore the starting point of the boundary line and adopt instead any scientific point based on survey.
The Commissioner appointed by the court tested the position of the six trijunction pillars shown in the map of lease dated November 23, 1900, and found that two of the trijunction pillars were in their correct positions.
On the basis of these two trijunction pillars, the Commissioner relaid, by the process of superimposition, the northern boundary line of the leasehold property, The point A in the map so laid does not tally with the point where the aforesaid four villages actually meet.
He pointed out that the correct (1)(1923) I.L.R 50 Cal 394 63 498 point where the said four villages met would be 1680 feet only from the trijunction pillar of Lodhna, Kujama and Madhuban, whereas the point A was at a distance of 1750 feet from the said trijunction pillar.
But learned counsel for the appellant contends that according to exhibit 3 the western boundary should be according to the revenue plan and, therefore, point A should be fixed at a distance of 1680 feet from the trijunction pillar, as that is the distance according to the revenue plan.
But a perusal of exhibit I shows that there is no reference in regard to the western boundary to revenue records.
That apart, even if 1680 feet is taken as the distance between the injunction pillar and point A in 'the map, it demonstrates that the measurement given in exhibit 3 was incorrect, for, there the distance was shown only as 1101 feet.
But a more serious objection to the argument is that it is not permissible for a court to reconstruct the plan with reference to revenue records when the plan is self contained and drawn to scale.
To summarize: the question is whether the disputed extent is part of the respondents ' holding or that of the appellant 's holding.
The map, exhibit 3(b), annexed to the lease deed executed in favour of the respondents ' predecessor in interest clearly demarcates the boundary line between the holdings of the appellant and the respondents, and according to that plan the disputed extent falls within the boundary of the respondents ' holding.
The lease of the appellant 's predecessor, i.e., exhibit C, also refers to a map, but the appellant withheld it.
In the sub leases created by the appellant, maps were annexed and the boundary therein is in accord with that in exhibit 3(b).
Those documents contain clear admissions supporting the case of the respondents.
No reliance can be placed upon the recitals in exhibit 1, as it is demonstrated that the extent given in respect of the western boundary is incorrect.
On the aforesaid material both the courts have held that the disputed extent of land is part of the holding of the respondents.
It is well settled that a map referred to in a lease should be treated as incorporated in the lease and as 499 forming part of the said document.
In this case the maps accepted by us are drawn to scale and the boundary is clearly demarcated.
The courts were, therefore, certainly right in accepting the boundaries drawn in the plan without embarking upon an attempt to correct them with reference to revenue records.
The question really is one of fact and we accept the finding.
The next question is whether the suit was barred by limitation.
The encroachment by the appellant on the respondents ' colliery and the removal of coal therefrom are alleged to have taken place in or about the year 1932.
The respondents in the plaint averred that they came to know of the said encroachment and removal of coal by the appellant after they received the letter dated August 18, 1941, from the Inspector of Mines and before that they had absolutely no knowledge or information whatsoever regarding thereto.
The appellant denied the said allegation and stated that the respondents all along knew and had been aware that the portion of coal land in question belonged to and was the property of the appellant.
In particular the appellant alleged that the respondents must have the knowledge of it since 1932 when there was a survey by the Department of Mines.
On the said pleadings issue 3 was framed which reads, "Is the suit barred by limitation?" The learned Subordinate Judge found, on the evidence, that the proceedings in 1932 had nothing to do with the delineation of the boundary line between the two holdings.
He held that article 48 of the Limitation Act applied to the suit and that the appellant had failed to prove that the respondents had knowledge of the sinking of the quarries and pits in the encroached land.
On appeal the High Court accepted the finding.
Though the High Court held that the burden of proof to establish knowledge on the part of the respondents beyond the prescribed time was on the appellant, it has given the finding on the assumption that the initial burden was on the respondents to prove that they had knowledge of the said encroachment only within three years thereof.
There are, therefore, concurrent findings of fact on the 500 question of knowledge.
But learned counsel for the appellant contended that the finding is vitiated by the burden of proof having been wrongly thrown on the appellant.
This submission is not accurate, for, as we have pointed out, the High Court arrived at the finding of fact on the assumption that the initial burden of proof was on the respondents.
It is common case that article 48 of the Limitation Act governs the period of limitation in respect of the present suit.
It reads: ___________________________________________________________ Period Time from Description of suit.
of which period limitation begins to run.
___________________________________________________________ For specific moveable When the per property lost, or son having acquired by theft, or the right to dishonest misappro the posses priation or conver Three sion of the sion, or for com years.
property first pensation for wrong learns in ful taking or detain whose posses ing the same.
sion itis.
__________________________________________________________ The article says that a suit for recovery of specific movable property acquired by conversion or for compensation for wrongful taking or detaining of the suit property should be filed within three years from the date when the person having the right to the possession of the property first learns in whose possession it is.
The question is, on whom the burden to prove the said knowledge lies? The answer will be clear if the article is read as follows: A person having the right to the possession of a property wrongfully taken from him by another can file a suit to recover the said specific moveable property or for compensation therefore within three years from the date when lie first learns in whose possession it is.
Obviously where a person has a right to sue within three years from the date of his coming to know of a, certain fact, it is for him to prove that he had the knowledge of the said fact on a particular date, for 501 the said fact would be within his peculiar knowledge.
That apart, section 3 of the Limitation Act makes it obligatory on a court to dismiss a suit barred by limitation, although limitation has not been set up as a defence, indicating thereby that it is the duty of a plaintiff to establish, at any rate prima facie, that the suit is within time.
It is the obligation of the plaintiff to satisfy the court that his action is not barred by lapse of time: see Lalchand Marwari vs Mahanth Rampur Gir (1) and Rajah Sahib Perhlad Sein vs Maharajah Rajender Kishore Sing (2) .
Looking from a different perspective, we arrive at the same result.
Under the Evidence Act there is an essential distinction between the phrase "burden of proof" as a matter of law and pleading and as a matter of adducing evidence.
Under section 101 of the Evidence Act, the burden in the former sense is upon the party who comes to court to get a decision on the existence of certain facts which he asserts.
That burden is constant throughout the trial; but the burden to prove in the sense of adducing evidence shifts from time to time having regard to the evidence adduced by one party or the other or the presumption of fact or law raised in favour of one or the other.
In the present case the burden of proof in the former sense is certainly on the respondents.
But the question is whether they have adduced evidence which had the effect of shifting the onus of proof to the appellant.
On behalf of the respondents, their Colliery Manager was examined as P. W. 2.
He stated in his evidence that the appellant had encroached upon the South Kujamal Colliery in Seam Nos. 10, 11 and 12 and another special seam, known as 4 feet seam and that in August, 1941, be came to know about the encroachment for the first time when the Mines Department forwarded a plan of the joint workings of the two collieries of the parties.
He also stated that he had no knowledge of the encroachment before.
In the cross examination, two suggestions were made to him, namely, that in 1932 there was a survey of the plaintiffs ' and defendants ' coal land by the Mines Department and that Seam Nos. 11 and 12 were (1) Pat. 312.
(2) (1869) 12 M.I.A. 292.
502 worked by the appellant by open quarry system.
He denied that he had any knowledge of the said two facts.
The evidence of this witness has been accepted by the learned Subordinate Judge, and the High Court also accepted his evidence, though in its view it was not very satisfactory.
This evidence, therefore, prima facie, proves that the respondents had knowledge of the encroachment only in 1941.
Let us now consider some of the decisions cited at the Bar.
A division beach of the Patna High Court in Sundarji Shivji vs Secretary of State for India (1) held that "when a defendant in an action based on tort seeks to show that the suit is not maintainable by reason of the expiry of the statutory period of limitation, it is upon him to prove the necessary facts".
There the suit was for conversion of property, and the learned Judges applied article 48 of the Limitation Act to the said suit.
After noticing the words in the last column of the article, the learned Judges proceeded to observe thus: " The starting date of limitation in the case of conversion is the date when the person who has the right to possession first learns of the act of conversion.
" Adverting to the burden of proof, the learned Judges observed: "There is nothing in the pleadings which would show precisely at what period tile plaintiff or the plaintiff 's agent, which is the same thing, became aware of the sale and its wrongfulness, that is to say, became aware of the fact of conversion.
The defendant was unable to provide us with any materials to fix that date and therefore his plea of limitation fails altogether, because he is unable to show a date outside the period of three years which would entitle him to succeed.
" With great respect to the learned Judges, we hold that this case had not been correctly decided.
The burden of proof, as we have explained earlier is on a plaintiff who asserts a right, and it may be, having regard to the circumstances of each case, that the (1) Pat, 752, 760.
503 onus of proof may shift to the defendant.
But to say that no duty is cast upon the plaintiff even to allege the date when they had knowledge of the defendant 's possession of the converted property and that the entire burden is on the defendant is contrary to the tenor of the article in the Limitation Act and also to the rules of evidence.
A division bench of the Calcutta High Court in Kalyani Prasad Singh vs Borrea Coal Co. Ltd. (1) did not accept the view of the Patna High Court, but followed that of the Bombay High Court in the Bank of Bombay vs Fazulbhoy Ebrahim (2).
In the context of the application of article 48 of the Limitation Act, the learned Judges of the Calcutta High Court observed thus: "The burden of proof rests upon the party who substantially asserts the affirmative of the issue. .
We are of opinion that the onus is upon the plaintiff in these suits to prove that the knowledge of his father wag within three years of the suit.
" In Talyarkhan vs Gangadas (3), Rangnekar, J., formulated the legal position thus: "The onus is on the plaintiff to prove that he first learnt within three years of the suit that the property which he is seeking to recover was in the possession of the defendant.
In other words, he has to prove that he obtained the knowledge of the defendant 's possession of the property within three years of the suit, and that is all.
If he proves this, then to succeed in the plea of limitation the defendant has to prove that the fact that the property was in his possession became known to the plaintiff more than three years prior to the suit.
" We accept the said observations as representing the correct legal position on the subject.
The appellant gave evidence to show that the encroachment was prior to 1932, but there is no acceptable evidence on their part to establish that the respondents came to know of the removal of coal by the appellant or their possession of the coal removed beyond three years prior to the suit.
Learned counsel (1) A.I.R. 1946 Cal.
123,127 (2) (3) Bom.
848, 860.
504 took us through the correspondence that passed between the parties and the Mining Department in 1932.
But it does not prove that the respondents had knowledge of the fact that the appellant had encroached upon any portion of their coal mines.
Emphasis is also laid upon the fact that there was quarry system of working in the mines and a contention is advanced that quarrying is done openly and, therefore, the respondents must have had knowledge of the said fact.
But the courts found from Commissioner 's maps that in the encroached portion, there were only underground workings and that the quarries were mostly outside the encroached area.
The learned Subordinate Judge and the High Court refused to base any finding on mere probabilities without clear evidence to sustain them.
We cannot therefore hold that the findings of the courts are vitiated by an error of law by the burden of proof having been wrongly thrown on the appellant.
We accept the findings of the High Court that the respondents had knowledge of the appellant 's encroachment of their coal mines only in the year 1941 which was within three years of the date of the filing of the suit.
The only other outstanding question that remains for consideration is that covered by Issue No. 7.
In paragraph 11 of the plaint, the plaintiffs allege that under the Indian Mines Act and the Rules and Regulations made thereunder the plaintiffs are bound to keep a barrier of 25 feet to the south of the defendant 's working and, therefore, the coal that is still left in the encroached area is not by any means accessible to the plaintiffs and being thus wholly unworkable is entirely lost to them for ever.
In the written statement the defendants did not deny the fact that the coal still left in the encroached area was lost to the plaintiffs, but only stated that it was purely a question of statutory obligation on the part of the plain.
tiffs with which the Defendant had nothing to do.
The learned Subordinate Judge accepted the case of the plaintiffs and held that the coal that was left in the encroached area was entirely lost to them by being rendered unworkable.
The High Court accepted the finding.
Learned counsel for the appellant contends that under the Rules the respondents could request the mining authorities to exempt them from the operation of rule 76 of the Indian Coal Mines Regulation, 1946, and if exemption was granted, they could remove the coal left by the appellant in the encroached area.
This possibility of the respondents getting an exemption from the operation of the rule was not raised either before the learned Subordinate Judge or before the High Court.
Nor can we hold in favour of the appellant on the basis of such a possibility.
We, therefore, accept the concurrent finding of fact arrived at by the courts below in respect to this issue.
No other point was raised.
The appeal fails and is dismissed with costs.
Appeal dismissed.

summary:
The appellants and the respondents were owners of adjoining collieries and the suit out of which the present appeal arose was one brought by the respondents for certain reliefs on the allegation that the appellants had encroached upon their coal mines and removed coal from the encroached portion and that they came to know of the said encroachment and removal of coal after they had received the letter dated August 18, 1941, from the Inspector of Mines.
The appellant denied the encroachment and pleaded that the suit was barred by limitation inasmuch as the respondents had knowledge of the encroachment in 1932 then there was a survey by the Department of Mines.
The trial judge found on evidence that the proceedings in 1932 had nothing to do with the matter, held that article 48 of the Limitation Act applied to the suit and that the appellants had failed to prove that the respondents had knowledge of the sinking of the quarries and pits in the encroached land and decreed the suit.
The High Court on appeal accepted the finding of the trial court and although it placed the burden of proving knowledge on the part of the respondents beyond the prescribed time on the appellants, nevertheless proceeded on the assumption that the initial burden to prove that they had knowledge of the said encroachment within the period was on the respondents and affirmed the decree of the trial court.
Held, that the burden of proof had not been misplaced.
Under article 48 of the Indian Limitation Act, which prescribes a three years ' limitation from the date of the knowledge, the initial onus is obviously on the plaintiff to prove that date since it would be within his special knowledge.
Moreover, under section 3 of the Act, which makes its obligatory on the court to dismiss a suit barred by limitation, even though such a plea is not set up in defence, it is for the plaintiff to establish that the suit is not so barred.
Lalchand Marwari vs Mahant Rampur Gir, pat.
(P.C.) 312 and Rajah Sahib Perhalad Seim vs Maharajah Rajender Kishore Singh, (1869) 12 M.I.A. 292, referred to.
Under the there is an essential distinc tion between burden of proof as a matter of law and pleading and as a matter of adducing evidence and under section 101 of the 493 Act the burden in the former sense is always on the plaintiff and never shifts, but the burden in the latter sense may according to the evidence led by the parties and presumptions of law or fact raised in their favour.
Sundarji Shivji vs Secretary of State for India, Pat. 752, disapproved.
Kalyani Prasad Singh vs Borrea Coal Co. Ltd., A.I.R. 1946 Cal.
123, Bank of Bombay vs Fazulbhoy Ebrahim, and Talyarkhan vs Gangadas, Bom.
848,approved.
Held, further, that it is well settled that a map referred to in a lease is a part of the lease.
Where, therefore, the map is drawn to scale and clearly demarcates the boundary it is not permissible to ignore it and reconstruct the boundary with reference to the revenue records.
Darapali Sadagar vs jajir Ahmad, Cal. 394, referred to.


judgement:
Appeals Nos. 45 and 46 of 1959.
Appeal by special leave from the judgment and order dated March 25, 1957, of the former Bombay High Court in Appeal No. 16 of 1957.
Q. K. Daphtary, Solicitor General of India, H. J. Umrigar and D. Gupta, for the Apellant (In C. A. No. 45 of 59) and Respondent (In C. Appeal No. 46 of 59).
H. N. Sanyal, Additional Solicitor General of India, section N. Andley and J. B. Dadachanji, for the respondents (in C. A. No. 45 of 59) and Appellants (In C. A. No. 46/59).
926 1960.
September 27.
The Judgment of the Court was delivered by DAS GUPTA J.
M/s.
Daulatram Rameshwarlal, a firm registered under the Indian Partnership Act (referred to later in this judgment as "sellers ") are registered dealers under section 11 of the Bombay Sales Tax Act.
In their return of turnover for the period from April 1, 1954 to March 31, 1955, they claimed exemption from Sales Tax in respect of sales of cotton of the total value of Rs. 68,493 2 6 and sales of castor oil of the total value of Rs. 6,47,509 1 6 on the ground that these sales were oil FOB contracts, under which they continued to be the owners of the goods till the goods had crossed the customs barrier and thus entered the export stream, and so no tax was realisable on these sales in view of the provisions of article 286 (1)(b).
The Sales Tax Officer rejected this claim for exemption and assessed them to sales tax on a taxable turnover including these sales.
He also assessed them to purchase tax under section 10(b) of the Bombay Sales Tax Act on their purchase of castor oil which they later sold for the sum of Rs. 6,47,509 1 6 as mentioned above.
The notice of demand for the total sales tax and the purchase tax assessed was served on the sellers on September 30, 1956.
The sellers thereupon moved the Bombay High Court under article 226 of the Constitu tion for the issue of appropriate writs for quashing the order of assessment and the notice of demand and for prohibiting the Sales Tax Officer from taking any steps pursuant to the order or the notice.
The learned Judge who heard the petition rejected the sellers ' contention that the goods remained their property till these crossed the customs frontier and therefore held that the sellers were not entitled to the benefit of article 286(1)(b) of the Constitution.
As regards the assessment to purchase tax also he rejected the sellers ' contention that the assessment in question was illegal.
In this view the learned Judge dismissed the application under article 226.
Against this decision the sellers appealed.
The 927 learned Judges who heard the appeal held, disagreeing with the Trial Judge, that the goods remained the sellers ' property till the goods had been brought on board the ship and so the sales were exempted from tax under article 286(1)(b) of the Constitution.
They however agreed with the Trial Judger that the sellers were liable to pay purchase tax under section 10(b) of the Bombay Sales Tax Act.
Accordingly they directed the Sales Tax Officer not to enforce the demand for payment of sales tax with regard to the sales of cotton for Rs. 68,493 2 6 and sale of castor oil of the total value of Rs. 6,47,509 1 6.
The Sales Tax Officer has, on the strength of special leave granted by this Court, preferred the appeal which has been numbered as Civil Appeal No. 45 of 1959 against the appellate court 's order directing him not to realise the sales tax in respect of sales of cotton and castor oil.
Civil Appeal No. 46 of 1959 has been preferred by the sellers against the appellate court 's judgment in so far as it upheld the assessment of purchase tax under section 10(b).
The only "question for our decision in the appeal by the Sales Tax Officer is whether property in the goods passed on shipment or at some point of time before shipment.
The law is now well settled that if the property in the goods passes to the buyer after they have for the purpose of export to a foreign country crossed the customs frontier the sale has taken place "in course of the export" out of the territory of India.
If therefore in the present sales the property in the goods passed to the buyers on shipment, that is, after they had crossed the customs frontier the sales must be held to have taken place "in the course of export" and the exemption under article 286(1)(b) will come into operation.
The sellers ' case is that these were sales on FOB contracts.
Though the learned Solicitor General appearing on behalf of the Sales Tax Officer tried to convince us that these were not really FOB contract sales, it appears that the averment in Paras.
11 and 13 of the writ petition that these sales were made on FOB basis were not denied in the counter affidavit sworn by the Sales Tax Officer.
It is also 928 worth noticing that in the assessment order itself the Sale Tax Officer referred to these sales as sales on FOB basis.
The specimen contract produced also used the words " FOB delivered ".
There can be no doubt therefore that these were sales under FOB contracts. ' The normal rule in FOB contracts is that the property is intended to pass and does pass on the shipment of the goods.
In certain circumstances, e.g., if the seller takes the bill of , lading to his own order and parts with it to a third person the property in the goods, it has been held, does not pass to the buyer even on shipment.
We are not concerned here with the question whether the passing of property in the goods was postponed even after shipment.
The correctness of the proposition that in the absence of special agreement the property in the goods does not pass in the case of a FOB contract until the goods are actually put on board is not disputed before us.
As has however been rightly stressed by the learned Solicitor General it is always open to the parties to come to a different agreement as to when the Dropert in the goods shall pass.
The question whether there was such a different agreement has to be decided on a consideration of all the surrounding circumstances.
He relies on three circumstances to convince us that the sellers and their buyers agreed in these sales that the property will pass to the buyer even before shipment.
The first circumstance on which he relies is that the bill of lading was taken in the name of the buyer.
Along with this fact we have to consider however the fact that the bill of lading was retained by the sellers, the contract being that payment will be made on the presentation of the bill of lading.
It is not disputed that the term in the contract for "payment at Bombay against presentation of documents " means this.
It was the sellers who received the bills of lading and it was on the presentation of these bills of lading along with the invoices that the buyer paid the price.
When the bills of lading though made out as if the goods were shipped by the buyer, were actually obtained and retained by the sellers, that fact itself would ordinarily indicate an intention of 929 the parties that the property in the goods would not pass till after payment.
The second circumstance to which our attention has been drawn is that the export was under the contract to be under the buyer 's export licence.
This, in our opinion, shows nothing.
The ordinary rule in FOB contracts is that it is the duty of the buyer to obtain the necessary export licence.
That was laid down in Brandt 's case (1) and though in a later case in Hardy vs Pound (2) the Court of Appeal in England held that the judgment in Brandt 's case (1) does not cover every FOB contract and that in the special facts of the particular case before them it was for the sellers to obtain the licence and this view was approved by the House of Lords , it is in our opinion correct to state that the presumption in FOB contracts is that it is the duty of the buyers to obtain export licence, though in the circumstances of a particular case this duty may fall on the sellers.
The third circumstance on which reliance is placed on behalf of the Sales Tax Officer is that the Export Control Order, 1954, which was passed in the exercise of powers conferred by Import & Export Control Act, 1947, contained a provision in its clause 5(2) in these words: " It shall be deemed to be a condition of that licence. . . that the goods for the export of which licence is granted shall be the property of the licensee at the time of the export ".
It has been strenuously contended by the learned Solicitor General that it will be reasonable to think that the parties to the contract intended to comply with this condition and to agree as between themselves that the goods shall be the property of the licensee, that is, the buyer, at the time of the export.
It is argued that the time of the export should be interpreted as the time when the customs frontier is crossed and that we must proceed on the basis that the buyer and the sellers intended that the goods shall be the buyer 's property at the point of time when they crossed this frontier.
We see however no justification for thinking that in this clause "the time of the export " means the time (1) (2) 930 when the goods cross the customs frontier.
Export has been defined in the Import & Export (Control) Act, 1947, as " taking out of India by sea, land or air ".
In the Exports (Control) Order, 1954, the word must be taken to have the same meaning as in the Act.
On that definition the time of the export is the time when the goods go out of the territorial limits of India.
These territorial limits would include the territorial waters of India.
Consequently the time of the export is when the ship with the goods goes be yond the territorial limits.
At any rate, the export of the goods cannot be considered to have commenced before the ship carrying goods leaves the port.
The intention of the parties that in compliance with the requirements of cl.
5(2) of the Exports (Control) Order the goods shall be the property of the licensee at the time of the export would therefore mean nothing more than that the property in the goods shall pass immediately before the ship goes beyond the territorial waters of the country, or at the earliest when the ship leaves the port.
Whichever view is taken there is nothing to indicate that the intention to comply with the requirements of el.
5(2) of the Exports (Control) Order carries with it an intention that the property should pass to the buyer at the time the goods cross the customs frontier.
It is true that in the United Motor '8 Case (1) and in other cases it has been held by this Court that the course of export commences to run when the goods cross the customs barrier.
What the court had to consider in these cases was not however when export commences within the meaning of the Exports (Control) Order but when the course of export commences for the purpose of article 286(1)(b) of the Constitution.
For the reasons which need not be detailed here it was decided that the course of export commences at the time when the goods cross the customs barrier.
These decisions as regards the commencement of the course of export are of no assistance in deciding about the point of time when the export proper commences.
As we have already pointed out when export has been defined in the Import & Export (1) (1953) 4 S.T.C. 133. 931 (Control) Act, 1947, as "taking out of India by land, sea, or air ", export in the Export Control Order, cannot be held to have commenced till at least the ship carrying the goods has left the port, though it may in some contexts be more correct to say that it does not commence till the ship has passed beyond the territorial waters.
We have therefore come to the conclusion that there is no circumstance which would justify a conclusion that the parties came to a special agreement that though the sales were on FOB contracts property in the goods would pass to the buyer at some point of time before shipment.
We think that the learned judges who heard the appeal in the Bombay High Court were right in their conclusion that the goods remained the sellers ' property till the goods had been brought and loaded on board the ship and so the sales were exempted from tax under article 286(1)(b) of the Constitution.
In Civil Appeal No. 46 of 1959 the appellants ' contention is that on a correct interpretation of the provisions of section 10(b) of the Bombay Sales Tax Act no purchase tax was leviable from them.
Section 10(b) provides for the levy of a purchase tax on the turnover of purchase of goods specified in column I of Schedule B, at the rates, if any, specified against such goods in column 4 of the said schedule, "where a certificate under cl.
(b) of section 8 has been furnished in respect of such goods and the purchasing dealer does not show to the satisfaction of the Collector that the goods have been despatched by him or by a person to whom he has sold the goods to an address outside the State of Bombay within a period of six months from the date of purchase by the dealer furnishing such certificate ".
Section 8(b) provides for the deduction from the turnover, of sale of goods to a dealer who holds an authorisation and furnishes to the selling dealer a certificate in the prescribed form declaring inter alia that the goods so sold to him are intended for being despatched by him or by registered dealers to whom he sells the goods to an address outside the State of Bombay.
Admittedly such a certificate was furnished by 932 M/s. Daulatram Rameshwarlal in respect of the castor oil which they sold to others and that in respect of these sales to them their sellers were allowed deductions.
It is equally undisputed that the persons to whom M/s. Daulatram Rameshwarlal sold the goods were sent to an address outside the State of Bombay within a period of six months from the date of purchase by M/s. Daulatram Rameshwarlal.
These persons are however not registered dealers.
The Sales Tax Officer as also the High Court of Bombay has held that the " person to whom he has sold the goods " in section 10(b) means " a registered dealer to whom he has sold the goods ".
It is contended before us on behalf of the appellant dealers that the word " a person " is wide enough to include a registered dealer and an unregistered dealer.
It is urged that the use of the word it a person " instead of the words " a registered dealer " is deliberate and that it was the intention of the Legislature to levy purchase tax on a person who has given such certificate under section 8(b) only if the goods were not 'despatched outside the State of Bombay within the prescribed period by anybody.
It is therefore contended that " a person " in section 8(b) should be interpreted to include a registered dealer or anybody else.
We are unable to agree.
A close examination of sections 8 and 10 justifies the conclusion that the Legislature was anxious to secure that the declaration as regards intention of the goods being despatched outside the State of Bombay should be carried out by despatch by " a registered dealer " to whom he sells the goods.
If such despatch outside the State of Bombay is by a person to whom the certifying dealer has sold the goods but who is not a registered dealer the certificate has not been complied with.
It will be in our opinion unreasonable to think that though the Legislature insisted that the certificate should declare the goods purchased were intended 11 for being despatched by him or by a registered dealer to whom he sells the goods outside the State of Bombay ", the Legislature would be content to accept actual despatch outside the State of Bombay by one who is not a registered dealer as sufficient.
Mr. Sanyal contended that the certificate 933 has to declare only an intention and that if ultimately the actual despatch is made by some person who is not a registered dealer, it cannot strictly be said that the declaration has not been carried out.
It might very well be that if at the time a declaration of intention is made in the certificate the purchasing dealer had the intention as stated and ultimately he sells to a person who is not a registered dealer for despatch of the goods outside the State of Bombay, the purchasing dealer may not be liable for having made a false declaration ".
Even though he has not made a false declaration of his intention, the fact remains that the intention declared has not been carried out.
The scheme of the Legislature clearly is that where the intention as declared has not been carried out purchase tax should be levied.
To hold otherwise would be to make the declaration of the intention useless.
Our conclusion therefore is that the courts below have rightly interpreted the words " a person " in section 10(b) of the Bombay Sales Tax Act as a " registered dealer " and that the purchasing dealers have rightly been assessed to purchase tax under section 10(b).
In the result, both the appeals are dismissed with costs.
Appeals dismissed.

summary:
The respondents firm claimed exemption from Sales Tax under article 286(i)(b) of the Constitution in respect of sales 925 made by them of cotton and castor oil on the ground that the sales were on F.O.B. contracts under which they continued to be the owners of the goods till those crossed the custom barrier and entered the export stream.
They also contested the purchase tax to which they were assessed under section 10(b) of the Bombay Sales Tax Act.
The High Court upheld the contention of the respondents regarding the Sales Tax but held that they were liable to pay purchase tax.
On appeal by both the parties Held, that the goods remained the seller 's property till those had been brought and loaded on board the ship and so the sales were exempted from tax under article 286(i) of the Constitution.
The word " a person " in section 10(b) of the Bombay Sales Tax Act had been correctly interpreted as " a registered dealer " and the purchasing dealers had been rightly assessed to purchase tax.
The normal rule in F. 0.
B. contracts was that the property was intended to pass and did pass on the shipment of the goods.
The presumption in F. 0.
B. contracts was that it was the duty of the buyer to obtain the necessary export licence, though in the circumstances of a particular case that duty might fall on the seller.
H.O. Brandt & Co. vs H. N. Morris & Co. Ltd., [1917] 2 K.B. 784 and M. W. Hardy & Co. vs A. V. Pound & Co., Ltd., (1953) 1.Q.B. 499, considered.
"Export " under the Import and Export Control Act having been defined as " taking out of India by land, sea or air " it could not, under the Export Control Order, be held to have commenced till the ship carrying the goods left the port or in some cases passed the territorial waters.
The State of Bombay vs The United Motors (India) Ltd., (1953) 4 S.T.C. 133, held inapplicable.


judgement:
ION: Criminal Appeal 89 of 1961.
Appeal by special leave from the judgment and order dated December 8, 1960, of the Allahabad High Court in Criminal Appeal No. 1782 of 60 and Referred No. 125 of 1960, section K. Kapur, for the appellant, G. C. Mathur and C. P. Lal, for the respondent.
December 19.
The Judgment of the Court was delivered by RAGUHBAR DAYAL, J.
Ram Singh appeals, by special leave, against the order of the Allahabad High Court dismissing his appeal and confirming 204 his conviction and sentence of death, under section 302, I.P.C., by the Session Judge, Etawah.
The prosecution case, in brief, is that due to enmity, the appellant caused injuries to Sheo Sahai, who was sleeping in his cattle shed in village Bhadurpur Ghar, with a sword at about mid night on the night between June 14 15, 1960.
Sheo Sahai died of the injuries received.
The appellant thereafter proceeded to the Canal Distributory at some distance from the village and had a bath there.
Later on, he went to the Police Station, Ekdil, nine miles away and lodged a report.
He delivered the sword which has been found by the Serologist to be stained with human blood.
The appellant was taken in custody and as a result of the investigation was sent up for trial, The appellant denied the allegation that he had caused the death of Sheo Sahai and alleged that he was falsely accused of the offence.
He also denied the other allegations for the prosecution.
He alleged that one Paley Singh informed him about the murder of Sheo Sahai and asked him to go to the Police Station, Ekdil, and to inform the Station Officer orally about the murder.
He did accordingly.
He was detained at the Police Station till 11 a.m., the next day and was then put up in the lock up.
The Sub Inspector took his thumb impression forcibly on three papers, but did not tell him the reason.
The appellant adduced no evidence in support of his statement.
The Courts below rightly did not accept his version.
The evidence led by the prosecution consisted of the evidence relating to motive, to his extrajudicial confession to one Ujagar Singh when he was having a bath in the Canal, to his purchasing the sword and to his delivering it at the police Station after he had dictated the report.
Both the Courts below rightly believed the evidence about the motive and purchase of the sword by the appellant.
205 The learned Sessions Judge believed Ujagar Singh and acted on the extra judicial confession made by the appellant to him.
The High Court, however, did not rely on this extra judicial confession.
It relied on certain statements made by the appellant in his report dictated at the Police Station and considered those facts together with the motive and the evidence about the purchase of the sword sufficient to confirm the appellant 's conviction and sentence.
The learned counsel for the appellant has argued that the entire report dictated by the appellant was inadmissible in evidence as its contents amounted to a confession of the offence by the appellant made to a Police Officer and that the evidence relied upon by the High Court was insufficient to establish that the appellant had murdered Sheo Sahai.
On the other hand, learned Counsel for the respondent urged that the High Court was wrong in rejecting the statement of Ujagar Singh about the appellant 's extra judicial confession and that the extra judicial confession together with the circumstances relied on by the High Court, fully make out the prosecution case against the appellant.
He also urges that such portions of the report which did not amount to a direct admission of the appellant 's striking Sheo Sahai with a sword and thereby causing his death were admissible in evidence.
We do not consider it necessary to decide whether any portion of the report dictated by the appellant at the Police Station is admissible or not in evidence, as there is good independent evidence with respect to the four matters mentioned in the report and relied on by the High Court in considering the case against the appellant.
These admissions of the appellant are (i) that he purchased a cycle from the deceased; (ii) that there was a quarrel in a play of cards; (iii) that he purchased a sword; and (iv) that he deposited the sword at the Police Station.
206 Ajit Singh, P.W., 5 deposed about the purchase of the cycle and about a dispute taking place between Sheo Sahai and the appellant on account of the latter 's demanding the return of Rs. 10/ which had been paid towards the sale price as the balance of the sale price had not been paid and the deal was cancelled by Sheo Sahai in accordance with the oral contract.
Ajit Singh bears no enmity with the appellant.
In fact, none of the prosecution witnesses is alleged to bear enmity with the appellant.
Paley Singh, P.W. 2, and Baij Nath P.W. 4, depose about the dispute during the game of cards played on June 12, 1960.
Kehar Singh P.W.3.
deposed about the selling of a sword to the appellant on June 13, 1960.
A receipt about the sale was found on the person of the appellant when he was searched after his arrest.
The appellant 's depositing the sword at the Police Station is deposed by Madho Ram P.W. 12, and by Sri Kishan Singh, Station Officer, Ekdil, (P.W. 16), in whose presence the appellant had dictated the report.
It is therefore not necessary to rely on the admissions of the appellant in the report with respect to these facts deposed to by the various witnesses whose testimony has been rightly accepted.
We need also consider whether the facts that the accused had a motive to harm Sheo Sahai and that he had purchased a sword a day before the incident and deposited it stained with human blood at the Police Station on the night of the murder are sufficient to establish that it must be the appellant who committed the murder of Sheo Sahai or not, as we are of opinion that the High Court erred in rejecting the statement of Ujagar Singh about the appellant 's confessing to him that he had murdered Sheo Sahai.
207 In this connection, the High Court simply said: "A perusal of the statement of Ujagar Singh would show that it is very likely that this may have happened.
To us, it seems that in the middle of June when the chari and sugar cane crop would not have been very high, it seems improbable that Ujagar Singh would have been sleeping in his field or that he should have met the appellant in the manner alleged.
We do not feel sure of the extra judicial confession said to have been made by the appellant to Ujagar Singh, and consequently we do not place any reliance on his statement, though it has been relied upon by the court below.
" With respect to the learned Judges, these observations are not very consistent.
If Ujagar Singh 's statement made it very likely that what he stated did happen, there could not have appeared any improbability in Ujagar Singh 's sleeping in his field and meeting the appellant in the manner alleged, especially when the learned Judges believed, and there was evidence about it, that the fields had chari and sugarcane crop at the time.
The learned Judges have not stated those considerations, if any, in addition to the improbability of Ujagar Singh 's presence in his field on account of the crops being not very high, which made them doubt the appellant 's confessing to Ujagar Singh.
It may be mentioned that Ujagar Singh was on the field, according to his statement, for protecting the crop from the depradations of neel gais.
They damage the leaves of the plants and have no partiality for tall plants alone.
In fact, the smaller the plants, the easier it must be to graze.
The learned Sessions Judge has discussed the criticism urged before him against the acceptance of the statement of Ujagar Singh and considered 208 it, for reasons given, not to justify the rejection of Ujagar Singh 's statement.
We agree with those reasons.
There is no enmity between Ujagar Singh and the appellant and therefore no good reasons existed for Ujagar Singh to state falsely.
Extra judicial confessions are not usually considered with favour but that does not mean that such a confession coming from a person who has no reason to state falsely and to whom it is made in circumstances which tend to support his statement, should not be believed.
The murder was committed in the month of June.
Both on account of the temperature and on account of the culprit 's desire to wash of blood marks on his person, the appellant 's bathing in the Canal at that hour of the night cannot be said to be improbable.
It is not stated by sub Inspector Kishan Singh, nor it is alleged that the appellant had on his person or on his clothes blood stains when he presented himself at the Police Station.
This tends to support Ujagar Singh 's statement that the appellant had a bath in the Canal at that hour.
Of course, this consideration springs out of the supposition that the appellant did commit the murder.
The fact that he had the sword which was stained with human blood, leads to such a supposition, even if the mere possession of a sword so stained be not sufficient to establish conclusively that the person who possessed it so shortly after the murder of a person with whom he had enmity, had committed the murder.
The Canal runs beside Ujagar Singh 's field.
Ujagar Singh was on the field for the purpose of watching it against the neel gais trespassing and grazing the crop.
It is not therefore a matter of surprise that he wakes up and proceeds to the spot from where the splashing sound which, is supposed to be due to the wading of the neel gais, came.
On reaching the Canal bank, he observes 209 the person bathing and naturally asks him what.
led him to have a bath at that hour at night.
Taken by surprise, it is not unlikely that the appellant should have made a statement that he had committed the murder of Sheo Sahai and was, thereafter, having a bath.
There is no reason to think that the appellant would not make such a statement when the appellant himself proceeds to the Police Station and hands over the blood stained sword.
It is no doubt unusual, as urged for the appellant, that a person who commits a murder in pursuance of an enmity arising out of minor disputes, would be feeling so justified in his conduct as to openly admit it to the first person he met and to go to the Police Station and report about it.
It is always difficult to find reasons for a person 's acting in a certain manner.
It may be that having blurted out the truth to Ujagar Singh, when taken by surprise, the appellant thought the best thing to be to proceed to the Police Station and report the matter there.
It is true that Ujagar Singh did not rush to the village at once and convey the news of the murder of Sheo Sahai.
The learned Sessions Judge has considered the criticism against such a conduct and has held that there were good reasons for Ujagar Singh 's not leaving his field whose crops he was watching against the neel gais.
We agree with the view of the learned Sessions Judge and do not consider Ujagar Singh 's conduct of continuing to remain on his field during the night to be so improbable as to affect his veracity.
Ujagar Singh went to the village at about 5 a.m., and them told the people of what he had been told by the appellant.
This statement of his, is supported impliedly by Paley Singh, P.W. 2, who states that the Sub Inspector was not present when Ujagar Singh related to them the fact which had taken place at night and by Bishram Singh, P.W. 13, who 210 deposed that Ujagar Singh stated that Ram Singh was taking his bath at night in the Canal Distributory and had said that he had come after committing the murder of Sheo Sahai and that the appellant had then proceeded towards the police station.
We are therefore of opinion that Ujagar Singh 's statement about the appellant 's confessing to him that he had murdered Sheo Sahai has been erroneously rejected by the High Court.
The extra judicial confession of the appellant to Ujagar Singh finds ample support from the facts that the appellant did purchase a sword a day before, that very sword was found to be stained with human blood shortly after the murder and that sword was handed over by the appellant himself to the Police Officer at the Police Station.
The evidence of the appellant 's having enmity with Sheo Sahai, the appellant 's conduct in purchasing a sword and delivering it stained with human blood to the Police and the appellant 's confession to Ujagar Singh, fully establish that the appellant did commit the murder of Sheo Sahai.
We are therefore of opinion that he has been rightly convicted of the offence under section 302, I.P.C., and has been awarded the proper sentence.
We therefore dismiss the appeal.
Appeal dismissed.

summary:
The appellant was tried for murder.
The facts established were that there were quarrels between the appellant and the deceased over the purchase of a cycle and in a play of cards that the appellant had purchased a sword a day earlier and that he had deposited the sword stained with human blood at the police station shortly after the murder.
Evidence was also led of an extra judicial confession made by the appellant to one U but the High Court did not place reliance on it as it did not feel sure of it though it observed that a perusal of the statement of U showed that it was very likely that what he stated may have happened.
^ Held, that the statement of U regarding the extra judicial confession was erroneously rejected by the High Court.
Extra judicial confessions were not usually considered with favour but such a confession coming from a person who had no reason to state falsely and to whom it was made in circumstances which tended to support his statement could be relied upon.
The extra judicial confession in the present case was supported by the facts established, and these together fully established the guilt of the appellant.


judgement:
Civil Appeal No. 50 of 1961.
Appeal by special leave from the Award dated March 10, 1959, of the Industrial Tribunal.
Kozhikode, in I.D. No. 89 of 1958.
A. V. Viswanatha Sastri and T. V. R. Tatachari, for the appellant, Janardan Sharma, for the resondents.
January 29.
The Judgment of the Court was delivered by WANCHOO.J.
This is an appeal by special leave in an industrial matter.
The brief facts necessary for present purposes are these.
The appellant in a saw mill carrying on business in Kozihkode in 824 the State of Kerala.
One Sankaran was in the employ of the appellant as a crosscutter.
It is said that on June 21, 1958, Sankaran came drunk to they mill and abused the Engineer, the Secretary and others and threatened them with physical violence.
He was caught hold of by other workmen and taken outside.
It is said that he came again a short time later at 4 30 p.m. and abused the same persons again.
Thereupon the appellant served a charge sheet on Sankaran on June 24, 1958 acting out the above facts and asked him to show cause why his services should not be terminated on account of his grave indiscipline and misconduct.
Sankaran gave an explanation the same day denying the allegations of fact made against him, though he admitted that he had come to the mill at the relevant time for taking his wages for that week.
On June 25, 1958 Sankaran was informed that in view of his denial, a departmental inquiry would be held and he was also placed under suspension pending inquiry.
The same day Sankaran protested against his suspension and requested that in any case the departmental inquiry should be expedited.
As no inquiry was held till July 2, 1958, Sankaran again wrote to the appellant to hold the inquiry as early as possible.
On July 8, 1958, the appellant terminated the services of Sankaran under r. 18 (a) of the Standing Orders without holding any departmental inquiry and the order was communicated to Sankaran the same day.
In that order the appellant informed Sankaran that the proposed inquiry, if conducted, would lead to further friction and deterioration in the rank and file of the employees in general and also that maintenance of discipline in the undertaking would be prejudiced if he was retained in the service of the appellant, and therefore it considered that no inquiry should be held.
A dispute was then raised by the union which was referred to the industrial tribunal for adjudication by the Government of Kerala in October 1958.
The tribunal held that 825 something seemed to have happened on the afternoon of June 21, 1958 but there was no evidence to prove what had actually happened.
It further held that the appellant had intended to take disciplinary action against the workman but subsequently departmental proceedings were dropped and action was taken under r. 18(a) of the Standing orders.
The tribunal was of the view that this was a colourable exercise of the power given under r. 18(a) to the appellant and therefore its action could not be upheld as a bona fide exercise of the power conferred.
The tribunal also pointed out that no attempt was made before it to defend the action taken under r. 18 (a) by proving the alleged misconduct.
Two witnesses were produced before the tribunal in connection with the alleged misconduct, but the tribunal did not rely on them on the ground that the important witnesses, namely, the Engineer, the Secretary and other members of the staff whose evidence would have been of more value had not been produced and no explanation had been given why they were not produced.
The tribunal therefore held that on the facts it could not come to the conclusion that Sankaran had come drunk to the mill and abused or attempted to assault either the Engineer or the Secretary or other officers.
In the result the order of discharge was set aside and Sankaran was ordered to be reinstated.
The appellant thereupon applied for special leave which was granted; and that is how the matter has come up before us.
The main contention of the appellant is that it is entitled under r. 18 (a) of the Standing Orders to dispense with the service of any employee after complying with its terms.
Rule 18 (a) is in these terms: "When the management desires to determine the services of any permanent workmen 826 receiving 12 as.
or more as daily wages, otherwise than under rule 21, he shall be given 14 days notice or be paid 12 days wages.
" It may be mentioned that r. 21 deals with case of misconduct and provides for dismissal or suspension for misconduct and in such a case the workman so suspended is not entitled to any wages during the period of suspension.
The claim thus put forward on behalf of the appellant is that it is entitled under r. 18(a) of the Standing orders which is a term of contract between the appellant and its employees to dispense with the service of any employee at any time by just giving 14 days notice or paying 12 days wages.
We are of opinion that this claim of the appellant cannot be accepted, and it is too late in the day for an employer to raise such a claim for it amounts to a claim "to hire and fire" an employee as the employer pleases and thus completely negatives security of service which has been secured to industrial employees through industrial adjudication for over a long period of time now.
As far back as 1952, the Labour Appellate Tribunal had occasion to consider this matter relating to discharge by notice or in lieu thereof by payment of wages for a certain period without assigning any reason: (see Buckingham and Carnatic Co. Ltd. Etg.
vs Workers of the Company.
etc.) (1).
It was of opinion that even in a case of this kind the requirement of bona fides is essential and if the terminataton of service is a colourable exercise of the power or as a result of victimisation or unfair labour praction the industrial tribunal would have the jurisdiction to intervene and set aside such termination.
Further it held that where the termination of service is capricious, arbitrary or unnecessarily harsh on the part of the employer judged by normal standards of a reasonable man that may be cogent evidence of victimisation or unfair labour practice.
These observations 827 of the Labour Appellate Tribunal were approved by this Court in The Chartered Bank, Bombay vs The Chartered Bank Employees ' Union (1).
and Assam Oil Company vs Its Workmen (2).
Therefore if as in this case the employer wanted to take action for misconduct and then suddenly dropped the departmental proceedings which were intended to be held and decided to discharge the employee under r. 18 (a) of the Standing orders, it was clearly a colourable exercise of the power under that rule in as much as that rule was used to get rid of an employee instead of following the course of holding an inquiry for misconduct, notice for which had been given to the employee and for which a departmental inquiry was intended to be held.
The reason given by the appellant in the order terminating the services of Sankaran of July 8, 1958, namely, that the proposed inquiry, if conducted, would lead to further friction and deterioration in the rank and file of the employees in general and also that maintenance of discipline in the undertaking would be prejudiced if Sankaran were retained in service, cannot be accepted at its face value; so that the necessity for an inquiry intended to be held for misconduct actually charged might be done away with.
In any case even if the inquiry was not held by the appellant and action was taken under r. 18 (a) it is now well settled, in view of the decisions cited above, that the employer could defend the action under r. 18(a) by leading evidence before the tribunal to show that there was in fact misconduct and therefore the action taken under r. 18(a) was bona fide and was not colourable exercise of the power under that rule.
But the tribunal has pointed out that the employer did not attempt to do so before it.
It satisfied itself by producing two witnesses but withholding the important witnesses on this question.
In the circumstances, if the tribunal did not accept the evidence of the two witnesses 828 who were produced it cannot be said to have gone wrong.
Learned counsel for the appellant however urges that the employer was empowered to take action under r. 18 (a) of the Standing orders and having taken action under that rule, there was nothing for it to justify before the tribunal.
We have already said that this position cannot be accepted in industrial adjudication relating to termination of service of an employee and has not been accepted by industrial tribunals over a long course of years now and the view taken by industrial tribunals has been upheld by this Court in the two cases referred to above.
Learned counsel for the appellant, however, relies on the decision of this Court in Parshotam Lal Dhingra vs Union of India.
(1) That was however a case of a public servant and the considerations that apply to such a case are in our opinion entirely different.
Stress was laid by the learned counsel on the observations at p. 862 where it was observed as follows: "It is true that the misconduct, negligence inefficiency or other disqualification may be the motive or inducing factor which influences the Government to take action under the terms of the contract of employment or the specific service rule, nevertheless, if a right exists under the contract or the rule, to terminate the service, the motive operating on the mind of the Government is, as Chagla C. J. has said in Srinivas Ganesh vs Union of India (2) (supra), wholly irrelevant.
It is urged that the same principle should be applied to industrial adjudication.
It is enough to say that the position of government servants stands on an entirely different footing as compared to industrial employees.
Articles 310 and 311 of the Constitution apply to government servants and it is in the 829 light of those Articles read with the Rules framed under article 309 that questions relating to termination of service of government servants have to be considered.
No such constitutional provisions have to be considered when one is dealing with industrial employees.
Further an employer cannot now press his right purely on contract and say that under the contract he has unfettered right "to hire and fire" his employees.
That right is now subject to industrial adjudication and even a power like that granted by r. 18 (a) of the Standing orders in this case, is subject to the scrutiny of industrial courts in the manner indicated above.
The appellant therefore cannot rest its case merely on r. 18 (a) and say that having acted under that rule there is nothing more to be said and that the industrial court cannot inquire into the causes that led to the termination of service under r. 18 (a).
The industrial court in our opinion has the right to inquire into the causes that might have led to termination of service even under a rule like 18(a) and if it is satisfied that the action taken under such a rule was a colourable exercise of power and was not bona fide or was a result of victimisation or unfair labour practice it would have jurisdiction to intervene and set aside such termination.
In this case the tribunal held that the exercise of power was colourable and it cannot be said that view is incorrect.
The appellant failed to satisfy the tribunal when the matter came before it for adjudication that the exercise of the power in this case was bona fide and was not colourable.
It could have easily done so by producing satisfactory evidence; but it seems to have rested upon its right that no such justification was required and therefore having failed to justify its action must suffer the consequences.
Learned counsel for the appellant also drew our attention to another decision of this Court in 830 The Patna Electric Supply Co. Ltd. Patna vs Bali Rai(1).
That case in our opinion has no application to the facts of this case because that case dealt with an application under section 33 of the Industrial Disputes Act while the present proceedings are under section 10 of the Act and the considerations which apply under section 33 are different in many respects from those which apply to an adjudication under section 10.
The appeal therefore fails and is hereby dismissed with costs.
Appeal dismissed.

summary:
S, employed by the appellant as a cross cutter in the saw mill was asked to show cause why his services should not be terminated on account of grave indiscipline and misconduct and he denied the allegations of fact.
He was thereafter informed about a department enquiry to be held against him and was suspended pending enquiry.
Purporting to act under r. 18(a) of the Standing Orders, the appellant terminated the services of S, without holding any departmental enquiry.
The industrial tribunal to which the dispute was referred held, that action taken, after dropping the proposed departmental proceedings was not bonafide and was a colourable exercise of the powerconferred under r. 18(a) of the Standing order and since no attempt was made before it to defend such action by proving the alleged misconduct, it passed an order for reinstatement of S, The appellant contended that as the termination was strictly in accordance with the terms of contract under r. 18(a) of the Standing Orders, it was entitled to dispense 823 with the service of an employee at any time by first giving 14 days notice or, paying 12 days wages.
^ Held, that the employer 's decision to discharge the employee under r. 18(a) of the Standing Orders after dropping the enquiry intended to be held for misconduct was clearly a colourable exercise of the power, and an employer could not press his right purely on contract and say that under the contract he has unfettered right "to hire and fire" his employees, right was subject to industrial adjudication and even a power like that granted by r. 18(a) of the Standing orders in this case was subject to the scrutiny of industrial courts.
Even in a case of this kind the requirement of bona fides was essential and if the termination of service was a colourable exercise of power, or was a result of victimisation or unfair labour practice, the tribunal had jurisdiction to intervene and set aside such termination.
Buckingham and Carnatic Co. Ltd. vs Workers of the Company, , referred to.
The Chartered Bank Bombay vs The Chartered Bank Employees Union. ; and Assam Oil Company vs Its Workmen, [1960] 3 S.C.R. 457, followed.
Held, further, that the principle relating to termination of Government service stands on an entirely different footing as compared to industrial employees and the same principle could not be applied to industrial adjudication.
Parshotaa Lal Dhingra vs Union of India, ; , distinguished.