judgement:
Appeals Nos. 358 and 359 of 1957.
Appeals by special leave from the judgment and decree dated April 4, 1956, of the Patna High Court in M. J. C. Nos.
546 and 590 of 1955.
J. N. Banerjee and R. C. Prasad, for the appellant (In both appeals).
Basanta Chandra Ghose I and P. K. Chatterjee, for respondents Nos.
1 10 & 12 57 in C. A. No. 358/57.
M. C. Setalvad, Attorney General of India, Nooni Chakraverty and B. P. Maheshwari, for respondent No. 59 in C A. No. 358/57 and Respdt.
No. 1 in C. A. No. 359/57.
R.Patnaik, for respondent No. 63 in C.A. No. 359/57.
August 22.
The Judgment of the Court was delivered by 1193 GAJENDRAGADKAR J.
Where an industrial dispute has been referred to a tribunal for adjudication by the appropriate government under section 10 (1) (d) of the , (XIV of 1947), can the said government supersede the said reference pending adjudication before the tribunal constituted for that purpose ? That is the short question which falls to be considered in these two appeals by special leave.
The question arises in this way: On October 8, 1954, by Notification No. III/DI 1602 /54 L 15225, the government of Bihar referred an industrial dispute between the management of the Bata Shoe Co. Ltd., Digbaghat (Patna), and their 31 workmen, mentioned in annexure I A ', in exercise of the powers conferred on the said government by section 7 read with section 10(1) of the Act.
The dispute was whether the dismissal of the workmen in question was justified; if not, whether they were entitled to reinstatement or any other relief For the adjudication of this dispute, an industrial tribunal with Mr. Ali Hassan as the sole member was consti tuted.
This was reference No. 10 of 1954.
Then, on January 15,1955, by Notification No. III/DI 1601/55 L. 696, a similar industrial dispute between the same Bata Company and its 29 other workmen was referred by the government of Bihar to the same tribunal.
This was reference No. I of 1955.
While the proceedings in respect of the two references, which had been consolidated by the tribunal, were pending before it and had made some progress, the government of Bihar issued a third Notification No. III/Di 1601/55 L 13028 on September 17, 1955, by which it purported to supersede the two earlier notifications, to combine the said two disputes into one dispute, to implead the two sets of workmen involved in the two said disputes together, to, add the Bata Mazdoor 'Union to the dispute, and to refer it to the adjudication of the industrial tribunal of Mr. Ali Hassan as the sole member.
The dispute thus referred to the .
tribunal was, " Whether the dismissal of the 60 workmen, mentioned in annexure 'B ', was justified or unjustified; and to what relief, if any, those workmen are entitled ?" On receipt of this notification, the tribunal passed an 1194 order on September 19, 1955, cancelling the hearing of the two prior references which had been fixed for October 3, 1955, and directing that the files of the said references should be closed.
The Bata Company and its workmen then filed two separate applications before the High Court of Judicature at Patna under articles 226 and 227 of the Constitution and prayed that the last notification should be quashed as being illegal and ultra 'vires.
These.
two applications were numbered as M. J. C. Nos. 546 and 590 of 1955 respectively.
On April 4, 1956, the High Court held that the government of Bihar had no power or authority to supersede the earlier notifications, allowed both the applications and issued a writ in the nature of certiorai quashing the impugned notification of September 17, 1955, and also a writ in the nature of mandamus requiring the industrial tribunal to proceed expeditiously with reference cases Nos. 10 of 1954 and I of 1955 and to bring them to a conclusion in accordance with law.
Against this order the government of Bihar applied for and obtained leave from this court on June 26, 1956.
That is how the two present appeals have come for disposal before US.
In both the appeals, the appellant is the State of Bihar and.
the respondents are the Bata Company and its workmen respectively.
On behalf of the appellant, it is urged before us that the High Court at patna was in error in holding that the government of Bihar had no power or authority to set aside the two earlier notifications and to refer the dispute in question for adjudication to the industrial tribunal under section 10(1) of the Act.
In order to appreciate the background of the, impugned notification, it would be relevant, to mention some material facts.
It appears that the workmen of the company 's factory at Digha formed a, union at the close of the last World War.
The president of the said union was Mr. John and its general secretary was Mr. Fateh Narain Singh.
On June 22, 1947, the company entered into a collective agreement with the said union and by mutual consent the Standing Orders and 1195 Rules, certified under the Industrial Employment (Standing Orders) Act of 1946, were settled.
The union was recognised as the sole and exclusive collective bargaining agency for the workmen of the company.
Towards the end of 1954, two groups of the union were formed and rivalry grew between them.
One group was led by Mr. Fateh Narain Singh and other by Mr. Bari.
On January 22, 1954, the union ' through its general secretary Mr. Fateh Narain Singh served on the company a " slow down notice " with effect from February 24, 1954, and on February 6, 1954, Mr. Bari purporting to act as the president of the union asked his followers to go on strike as from February 23, 1954.
The demands made by Mr. Fateh Narain Singh gave rise to conciliation proceedings under the Act and ended in the settlement which was duly recorded on February 8, 1954.
In spite of the said settlement some workmen, including the sixty workmen in question who supported Mr. Bari, went on an illegal strike on February 23, 1954, although as members of the union they were bound by the ,settlement.
The majority of the workmen were opposed to the strike and in fact on February 16, 1954, a letter signed by 500 workmen who dis associated themselves from the strike, was received by the company.
The company was requested to make suitable arrangements to enable these workmen to attend their duties.
The strike succeeded only partially because out of 854 workmen employed in the company 's factory at Digha nearly 500 workmen attended the factory in spite of the threats of the strikers.
The strike was declared illegal by the appellant under section 23 (c) of the Act.
Subsequently, the company served the strikers with charge sheets and in the end, 274 workmen, including the sixty workmen in question, were dismissed from service by the company.
Thereafter the union entered into negotiations with the company, as a result of which it was agreed that 110 strikers would be employed by the company in the same manner in which 76 strikers had already been employed by it.
It was further 152 1196 agreed that 30 strikers were to remain dismissed and not considered eligible for employment or for any benefits.
In regard to the remaining 30 strikers, the company agreed to consider their cases later on for reemployment.
During these negotiations, the sixty workmen in question did not make any demand to the management for reinstatement either individually or collectively.
nor was their case raised by any other Organisation or body of workmen.
In the result, so far as the union was concerned the dispute regarding the whole body of strikers who had been dismissed by the company came to an end by virtue of, the agreement between the company and the union.
Notwithstanding this agreement, Mr. Sinha, the conciliation officer, wrote to the company on September 3, 1954, that he desired to hold conciliation proceedings inrespectof,some of the dismissed workmen.
The dispute raised by the sixty workmen was not sponsored by any Organisation or body of workmen.
In fact the secretary of the union wrote to the Commissioner of Labour on September 22, 1954, that he strongly objected to the alleged dispute of sixty workmen being referred to adjudication.
It was under these circum stances that the appellant issued the first two notifica tions on October 8, 1954 and January 15, 1955.
On May 30, 1955, the union made an application before the tribunal alleging that the ' majority of the workmen were opposed to the reinstatement of the sixty workmen in question and consequently it had interest in the proceedings before the tribunal.
Two applications were made before the tribunal by other workmen to be joined to the proceedings on the ground that they were opposed to the reinstatement of the workmen whose cases were pending before the tribunal.
All these applications were rejected by the tribunal.
It would appear that Mr. Fateh Narain Singh then moved the Department of Labour Government of Bihar, and it was apparently pursuant to the representation made by him that the third notification was issued by the appellant superseding the first two notifications and referring the whole dispute afresh to the 1197 industrial tribunal with the union of Mr. Fateh Narain Singh added as a party to the proceedings.
That in brief is the genesis of the impugned notification in the present case.
Dr Bannerjee for the appellant has urged before us that in dealing with the question about the powers of the appropriate government under section 10(1) of the Act, it would be necessary to bear in mind the facts which led to the cancellation of the first two notifications and the issue of the third impugned notification.
He contends that in issuing the third notification the appellant has acted bona fide and solely in the interests of fair play and justice ; it came to the. conclusion that it was necessary that the union should be heard before the disputes in question are.
adjudicated upon by the Industrial Tribunal and that it would be more convenient and in the interest of industrial peace and harmony that the dispute should be referred to .the tribunal 'in a more comprehensive and consolidated form bringing before the tribunal all the parties interested in it.
In our opinion, the bona fides of the appellant on which reliance is placed by Dr. Banerjee are really not: relevant for determining the appellant 's 'powers under section 10(1) of the Act.
If the appellant has authority to cancel the notification issued under section 10(1), and if the validity of the cancelling notification is challenged on the ground of mala fides, it may be relevant and material to inquire into the motives of the appellant.
But if the appellant has no authority to cancel or revoke a notification issued under section 10(1), the bona fides of the appellant can hardly validate the impugned cancellation.
That is why, we think, the appellant cannot base its arguments on the alleged bona fides of its conduct.
it is conceded by Dr. Bannerjee that the Act does not expressly confer any power on the appropriate government to cancel or supersede a reference made under section 10(1) of the Act.
He, however, argues that the power to cancel or supersede such a reference must be hold to be implied, and in support of his argument he relies on the, provisions of section 21 of the (X of 1897).
Section 21 provides 1198 that " where, by any Central Act or Regulation, a. power to issue notifications, orders, rules or bye laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or byelaws so issued ".
It is well settled that this section embodies a rule of construction and the question whether or not it applies to the provisions of a particular statute would depend on the subject matter, context, and the effect, of the relevant provision,% of the said statute.
In other words it would be necessary to examine carefully the scheme of the Act, its object and all its relevant and material provisions before deciding whether by the application of the rule of construction enunciated by section 21, the appellant 's contention is justified that the power to cancel the reference made under section 10(1) can be said to vest in the appropriate government by necessary implication.
If we come to the conclusion that the context and effect of the relevant provisions is repugnant to the application of the said rule of construction, the appellant would not be entitled to invoke the assistance of the said section.
We must, therefore, proceed to examine the relevant provisions of the Act itself.
It is clear that the policy of the Act is to secure and preserve good relations between the employers and their workmen and to maintain industrial peace and harmony.
It is with this object that section 3 of the Act contemplates the establishment of the Works Committees whose duty it is to promote measures for securing and preserving amity and good relations between the employers and the workmen.
If the Works Committee is unable to settle the disputes &rising between the employer and his workmen, conciliation officers and the boards of conciliation offer assistance to the parties to settle their disputes.
Sections 3, 4, 5, 12 and 13 refer to the working of this machinery contemplated by the Act.
It is only where the conciliation machinery fails to bring about settlement between the parties that the Act contemplates compulsory adjudication of the industrial disputes by labour courts and 1199 tribunals as the last alternative.
The appropriate government is authorised to constitute labour courts and tribunals under and subject to the provisions of a. 7 and section 7A respectively.
It is in respect of the compulsory adjudication that under section 10, the appropriate government is given wide discretion to decide whether or not the dispute between the employer and his employees should fie referred to the board, court or ' tribunal.
Section 10 (1) (d) provides inter alia that where the appropriate government is of opinion that any industrial dispute exists or is apprehended, it may at any time, by order in writing refer the dispute to a tribunal for adjudication.
The condition precedent for the reference to the industrial tribunal is that the appropriate government must be satisfied that an industrial dispute exists or is apprehended.
It is not in every case where the parties allege the existence of an industrial dispute that a reference would be made under section 10 (1); it is only where the test of subjective satisfaction of the appropriate government is satisfied that the reference can be made.
Thus it is clear that the appropriate government is given an important voice in the matter of permitting industrial disputes to seek adjudication by reference to the industrial tribunal.
But once an order in writing is made by the appropriate government referring an industrial dispute to the tribunal for adjudication under section 10 (1), proceedings before the tribunal are deemed to have commenced and they are deemed to have concluded on the day on which the award made by the tribunal becomes enforceable under section 17A.
This is the effect of section 20(3) of the Act.
This provision shows that after the dispute is referred to the tribunal, during the continuance of the reference proceedings, it is the tribunal which is seized of the dispute and which can exercise jurisdiction in respect of it.
The appropriate government can act in respect of a reference pending adjudication before a tribunal only under section 140(5) of the Act, which authorises it to add other parties to the pending dispute subject to the conditions mentioned in the said provision.
It would therefore be reasonable to hold that except for cases 1200 falling under section 10(5) the appropriate government stands outside the reference proceedings, which are under the control and jurisdiction of the tribunal itself.
Even after the award is made it is obligatory on I the appropriate government under section 17(1) to publish the said award within a period of thirty, days from the date of its receipt by the, appropriate government. 'Sub section (2) of section 17 says that subject to the provisions of section 17A, the award published under (1) of section 17 shall be final and shall not be called in question by any court in any manner whatsoever Section 19(3) provides that an award shall, subject to the other pro visions of section 19, remain in operation for a period of one year from the date on which it becomes emforceable under section 17A.
It is true that as.
17A and 19 confer on the appropriate government powers to modify the provisions of the award or limit the period of its: operation but it is unnecessary to refer to these provisions in detail.
The scheme of the provisions.
in Chapters III and IV of the Act would thus appear to be .
to leave the reference proceedings exclusively within the jurisdiction of the tribunals constituted under the :Act and to make the awards,of such tribunals binding between the parties, subject to the special powers conferred of the appropriate government under as.
17A and 19.
The appropriate government undoubtedly has the initiative in the matter.
It is only where it makes an order in writing refering an industrial dispute to the adjudication of the tribunal that the reference proceedings can commence but the scheme of the relevant provisions would prima facie seem to be inconsistent with any power in the appropriate government to cancel the reference made under section 10 (1).
The power claimed by the Happening to cancel a reference made unders.
10(1) seems also to be inconsistent with some other provisions of the Act.
The proviso to section 10 lays down that the appropriated government shall refer a dispute relating to the public utility service when a notice under section 22 has been given, unless it considers that the notice has been frivolously or vexatiously given, or that it would be inexpedient so to refer the dispute.
This proviso, indicates that in regard 1201 to a dispute relating to public utility concerns normally the government is expected to refer it for adjudication.
In such a case if ' the government makes the reference it is difficult to appreciate that it would be open to the government pending the proceedings of the said reference before the Industrial Tribunal to cancel the reference and supersede its original order in that behalf.
Section 10, sub section
(2) deals with the case where ' the parties to are industrial dispute apply to the appropriate government in the prescribed manner, either jointly or separately, for a reference of the dispute to the appropriate authority, and it provides that in such a case if the appropriate government is satisfied that the persons applying represent the majority of each party it shall make the reference accordingly.
ln such a case all that the government has to satisfy itself about is the fact that the, demand for reference is made by the majority of each party, and once this condition is satisfied, the government is under obligation to refer the dispute for industrial adjudication.
It is inconceivable that in such a case the government can claim power to cancel a reference made under section 10(2).
Indeed in the course of his arguments, Dr. Banerjee fairly conceded that it would be difficult to sustain a claim for an implied power of cancellation in respect of a reference made under section 10(2).
There is another consideration which is relevant in dealing with this question.
Section 12 which deals with the duties of the conciliation officer, provides in substance that the conciliation officer should try his best to bring about settlement between the parties.
If no settlement is arrived at, the conciliation officer has to make a report to the appropriate government, as provided in sub section
(4) of section 12.
This report must contain a full statement of the relevant facts and circumstances and the reasons on account of which in the opinion of the officer the settlement could not be arrived at.
Sub section (5) then lays down that if, on a consideration of the report, the appropriate government is satisfied that there is a case for reference to a board, labour court, tribunal or national tribunal, it may make such a reference.
Where the appropriate 1202 government does not make such a reference it shall record and communicate to the parties concerned its reasons therefor.
This provision imposes on the appropriate government an obligation to record its reasons for not making a reference after receiving a report from the conciliation officer and to communicate the said reasons to the parties concerned.
It would show that when the efforts of the conciliation officer fail to settle a dispute, on receipt of the conciliation officer 's report by the appropriate government, the government would normally refer the dispute for adjudication ; but if the government is not satisfied that a reference should be made, it is required to communicate its reasons for its decision to the parties concerned.
If the appellant 's argument is accepted, it would mean that even after the order is made by the appropriate government under section 10(1), the said government can cancel the said order without giving any reasons.
This position is clearly inconsistent with the policy underlying the provisions of section 12(5) of the Act.
In our opinion, if the legislature had intended to confer on the appropriate government the power to cancel an order made under section 10(1), the legislature would have made a specific provision in that behalf and would have prescribed appropriate limitations on the exercise of the said power.
It is, however, urged that if a dispute referred to the industrial tribunal under section 10(1) is settled between the parties, the only remedy for giving effect to such a compromise would be to cancel the reference and to take the proceedings out of the jurisdiction of the industrial tribunal.
This argument is based on the ,assumption that the industrial tribunal would have to ignore tile settlement by the parties of their dispute pending before it and would have to make an award on the merits in spite of the said settlement.
We are not satisfied that this argument is well founded.
It is true that the Act does not contain any provision specifically authorising the industrial tribunal to record a compromise and pass an award in its terms corresponding to the provisions of O. XXIII, r. 3 of the Code of Civil Procedure.
But it would be very 1203 unreasonable to assume that the industrial tribunal would insist upon dealing with the dispute on the merits even after it is informed that the dispute has been amicably settled between the parties.
We have already indicated that amicable settlements of industrial disputes which generally lead to industrial peace and harmony are the primary object of this Act.
Settlements reached before the conciliation officers or( boards are specifically dealt with by sections 12(2) and 13(3) and the same are made binding under section 18.
There can, therefore, be no doubt that if an industrial dispute before a tribunal is amicably settled, the tribunal would immediately agree to make an award in terms of the settlement between the parties.
It was stated before us at the bar that innumerable awards had been made by industrial tribunals in terms of the settlements between the parties.
In this connexion we may incidentally refer to the provisions of section 7 (2)(b) of the Industrial Disputes (Appellate Tribunal) Act, 1950 (XLVIII of 1950), which expressly refer to an award or decision of an industrial tribunal made with the consent of the parties.
It is true that this Act is no longer in force; but when it was in force, in providing for appeals to the Appellate Tribunal set up under the said Act, the legislature had recognised the making of awards by the industrial tribunals with the consent of the parties.
Therefore, we cannot accept the argument that cancellation of reference would be necessary in order to give effect to the amicable settlement of the dispute reached by the parties pending proceedings before the industrial tribunal.
In this connexion it may be relevant to refer to some other provisions of the Act, which impose restrictions on the parties (luring the pendency of the reference proceedings.
Under section 10(3), where an industrial dispute has been referred to an industrial tribunal, the appropriate government may by order prohibit the continuance of any strike or lock out in connexion with such dispute which may be in existence on the date of the reference.
Similarly, under section 33, during the pendency of the proceedings before an industrial tribunal, no employer shall (a) in regard to any matter connected with the dispute, alter, to the prejudice 153 1204 of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceedings or (b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workmen concerned in such dispute, save with the express permission in writing of the authority before which the proceeding is pending.
Failure to comply with the provisions of section 33(1) is made punishable under section 31 of the Act.
These provisions show that during the pendency of the proceedings before the industrial tribunal the parties to the dispute are expected to maintain status quo and not to take any action which would disturb industrial peace or prejudice a fair trial before the industrial tribunal.
If the power to cancel a reference made under section 10 (1) is held to be implied, the proceedings before the industrial tribunal can be terminated and superseded at any stage and obligations and liabilities incurred by the parties during the pendency of the proceedings would be materially affected.
It is because all these provisions are intended to operate as a self contained Code governing the compulsory adjudication of industrial disputes under the Act, that section 15 enjoins upon the industrial tribunals to hold their proceedings expeditiously and to submit their awards as soon as it is practicable on the conclusion of the proceedings to the appropriate government.
Thus time is usually of essential importance in industrial adjudications and so the Act imposes an obligation on the industrial tribunals to deal with their proceedings as expeditiously as possible.
If the appropriate government has by implication the power to cancel its order passed under section 10(1), the proceedings before the industrial tribunal would be rendered wholly ineffective by the exercise of such power.
Apart from these provisions of the Act, on general principles it seems rather difficult to accept the argument that the appropriate government should have an implied power to cancel its own order made under section 10(1).
If on the representation made by the employer or his workmen the appropriate government considers the matter fully and reaches the conclusion that an 1205 industrial dispute exists or is apprehended and then makes the reference under section 10(1), there appears to be no reason or principle to support the contention that it has an implied power to cancel its order and put an end to the reference proceedings initiated by itself In dealing with this question it is important to bear in mind that power to cancel its order made under section 10(1), which the appellant claims, is an absolute power; it is not as if the power to cancel implies the obligation to make another reference in respect of the dispute in question ; it is not as if the exercise of the power is subject to the condition that reasons for cancellation of the order should be set out.
If the power claimed by the appellant is conceded to the appropriate government it would be open to the appropriate government to terminate the proceedings before the tribunal at any stage and not to refer the industrial dispute to any other industrial tribunal at all.
The discretion given to the appropriate government under section 10(1) in the matter of referring industrial disputes to industrial tribunals is very wide; but it seems the power to cancel which is claimed is wider still; and it is claimed by implication on the strength of section 21 of the .
We have no hesitation in holding that the rule of construction enunciated by section 21 of the in so far as it refers to the power of rescinding or cancelling the original order cannot be invoked in respect of the provisions of section 10(1) of the .
It would now be necessary to refer to the decisions to which our attention was invited in the course of arguments.
For the appellant Dr. Bannerjee has strongly relied on the decision of this court in Minerva Mills Ltd. vs Their Workmen (1).
He contends that Mahajan J. who delivered the judgment of the court, has expressly observed in his judgment that from the relevant provisions of the Act "It could not be held that it was implicit in section 7 that the government could not withdraw a dispute referred to a tribunal or make the appointment of a tribunal for a limited period of time.
" The argument is that this observation shows that the government can withdraw a pending reference from one tribunal and refer it to another tribunal, and, (1) ; 1206 according to the appellant, that is exactly what has been done by it in the present case.
In the case of Minerva Mills Ltd. (1), however, the question about the implied power of the appropriate government to cancel its order made under section 10 did not arise for consideration.
The point which was raised by the appellant was that the government had no power to appoint a tribunal for a limited duration ; and the argument was that if industrial disputes are referred to a tribunal, all the said disputes must be determined by the said tribunal and not by any other tribunal, notwithstanding that the appointment of the original tribunal was for a limited duration.
The first tribunal in the said case had been appointed on June 15, 1952, and some industrial disputes had been referred to it.
The tribunal was appointed for one year.
During its tenure the tribunal disposed of some of the disputes referred to it, but four disputes still remained undisposed of.
For disposing of these references, a second tribunal was appointed on June 27, 1952.
The validity of the constitution of the second tribunal was impugned by the appellant and it was urged that it is the first tribunal alone which can and must try the remaining disputes.
This argument was rejected by this court, and it was held that it was perfectly competent to the appropriate government to appoint a tribunal for a limited duration.
It would be noticed that in this case there was no question of cancelling an order made under section 10(1).
The said order remained in force, and the only step which the government took was to make an order constituting a fresh tribunal to dispose of the references which had not been adjudicated upon by the first tribunal.
It was on these facts that this court took the view that it was competent to the government to refer the said remaining disputes for adjudication to the second tribunal.
Strictly speaking there was no occasion to withdraw any dispute from the first tribunal; the first tribunal had ceased to exist; and so there was no tribunal which could deal with the remaining disputes already referred under section 10(1).
That is why the government purported to appoint a second tribunal to deal with the said dispute.
In our opinion, the decision in the Minerva Mills Ltd. (1) cannot be (1) ; 1207 cited in support of the proposition that the appellant has power to cancel the order of reference made by it under section 10(1).
The decision of this court in Strawboard Manufacturing Co. Ltd. vs Gutta Mill Workers ' Union (1), is then cited in support of the proposition that the appellant has implied power to cancel its order made, under section 10(1).
In this case, the government of the State of Uttar Pradesh had referred an industrial dispute to the Labour Commissioner on February 18, 1950, and had directed the Commissioner to make his award not later than April 5, 1950.
While the proceedings were pending before the Commissioner, two additional issues were referred to him.
Ultimately, the award was made on April 13, and it was sought to be validated by the issue of a notification by the Governor of Uttar Pradesh on April 26, by which the time for making the award was retrospectively extended up to April 30, 1950.
This court held that the notification retrospectively extending the period to make the award was invalid.
Since the award had been made beyond the period prescribed by the original notification, it was void.
It is, however, argued that in dealing with the (question of the validity of the award it was observed by Das J. (as he then was), " In the circumstances, if the State Government took the view that the addition of those two issues would render the time specified in the original order inadequate for the purpose it should have cancelled the previous notification and issued a fresh notification referring all the issues to the adjudicator and specifying a fresh period of time within which he was to make his award.
The State Government did not adopt that course." As we read the judgment, we are not inclined to accept the appellant 's assumption that the passage just cited expresses the view accepted by this court.
Read in its context the said passage appears to state the argument urged by Dr. Tek Chand on behalf of the appellant.
The appellant appears to have urged in substance that if the State Government thought that the addition of new issues referred to the Commissioner by subsequent notification made it difficult for him to submit his award (1) ; 1208 within the specified time, the local government should have cancelled the original reference, made a fresh comprehensive reference and given him requisite time for making his award.
Since that was not done, the position could not be rectified by the issue of the impugned notification retrospectively extending the time originally fixed.
It is in connexion with this argument that the statement on which reliance is placed was apparently made by the learned counsel for the appellant.
If that be the true position, no argument can be based on these observations.
It is conceded that the question about the power of the appropriate government to cancel an order of reference made under section 10(1) did not arise for discussion or decision in this case.
The third decision to which reference has been made in support of the appellant 's case is the decision of Bishan Narain J. in The Textile Workers ' Union, Amritsar vs The State of Punjab and others (1).
Bishan Narain J. appears to have taken the view that the power to cancel an order of reference made under section 10(1) can be implied by invoking section 21 of the , because he thought that by the exercise of such a power, the appropriate government may be able to achieve the object of preserving industrial peace and harmony.
The judgment shows that the learned judge was conscious of the fact that " this conclusion may have the effect of weakening a trade union 's power of negotiation and may encourage the individual firms to deal directly with its (their) own workmen but it is a matter of policy with which I have nothing to do in these proceedings.
" In dealing with the present question, we would not be concerned with any questions of policy.
Nevertheless, it may be pertinent to state that on the conclusion which we have reached in the present case there would be no scope for entertaining the apprehensions mentioned by the learned judge.
As we have already indicated, the scheme of the Act plainly appears to be to leave the conduct and final decision of the industrial dispute to the industrial tribunal once an order of reference is made under section 10(1) by the appropriate government.
We must accordingly hold that Bishan Narain J. was (1) A.I.R. 1957 Pun.
1209 in error in taking the view that the appropriate government has power to cancel its own order made under section 10(1) of the Act.
The decision of the Kerala High Court in Iyyappen Mills (Private) Ltd., Trichur vs State of Travancore Cochin (1), is not of much assistance because in this case the learned judges appear to have taken the view that the first tribunal before which the industrial dispute was pending had ceased to exist at the material time when the dispute was referred by the local government for adjudication to the second tribunal.
If that be the true position, the conclusion of the learned judges would be supported by the decision of this court in Minerva Mills Ltd. (2).
Then, in regard to the observations made by Sinha J. in Harendranath Bose vs Second Industrial Tribunal (3), it is clear that the learned judge was in error in seeking to support his view that the appropriate government can cancel its order made under section 10(1) by the observations found in the judgment of this court in Strawboard Manufacturing Co. Ltd. (4).
We have already stated that the said observations are really a part of the arguments urged by the appellant before this court in that case and are not obiter observations made by the learned judge.
The last case to which reference must be made is the decision of Rajamannar C. J. and Venkatarama Aiyar J. in South India Estate Labour Relations Organisation vs The State of Madras (5).
In this case the Madras Government had purported to amend the reference made by it under section 10 of the Act and the validity of this amendment was challenged before the court.
This objection was repelled oil the ground that it would be open to the government to make an independent reference concerning any matter not covered by the previous reference.
That it, took the form of an amendment to the existing reference and not an additional reference is a mere technicality which does not merit any interference in the writ proceedings.
The objection was one of form and was without substance.
It would thus appear that the question before (1) (2) ; (3) (4) ; (5) 1210 the court was whether the appropriate government can amend the reference originally made under section 10 so far as the new matters not covered by the original reference are concerned, and the court held that what the appropriate government could have achieved by making an independent reference, it sought to do by amending the original reference itself.
This decision would not assist the appellant because in the present case we are not considering the power of the govern ment to amend, or add to, a reference made under section 10(1).
Our present decision is confined to the narrow question as to whether an order of reference made by the appropriate government under section 10(1) can be subsequently cancelled or superseded by it.
We must, therefore, confirm the finding made by the learned judges of the High Court at Patna, that the notification issued by the appellant cancelling the first two notifications is invalid and ultra vires.
That takes us to the question as to the form in which the final order should be passed in the present appeals.
The High Court has purported to issue a writ of certiorari against the State Government quashing the impugned notification.
It has, however, been held by this court in The State of Madras vs C. P. Sarathy (1) that in making a reference under section 10(1) tile appropriate government is doing an administrative Act and the fact that it has to form an opinion as to the factual existence of an industrial dispute as a preliminary step to the discharge of its function does not make it any the less administrative in character.
That being so, we think it would be more appropriate to issue a writ of mandamus against the appellant in respect of the impugned notification.
We would also like to add that since the first two industrial disputes referred by the appellant under the first two notifications have remained pending before the tribunal for a fairly long time, it is desirable that the tribunal should take up these references on its file and dispose of them as expeditiously as possible.
In the result, the appeals fail and must be dismissed with costs.
Appeals dismissed.

dataset_name: IN-Abs

summary:
Section 10(1) of the , does not confer on the appropriate Government the power to cancel or supersede a reference made thereunder in respect of an industrial dispute pending adjudication by the tribunal constituted for that purpose.
Nor can section 21 of the , vest such a power by necessary implication.
It is well settled that the rule of construction embodied in section 21 of the can apply to the provisions of a statute only where the subject matter, context and effect of such provisions are in no way inconsistent with such application.
So judged it is clear that that section cannot apply to section 10(1) of the .
Minerva Mills Ltd. vs Their Workmen, ; , held inapplicable.
1192 Strawboard Manufacturing Co. Ltd. vs Gutta Mill Workers ' Union, ; , explained.
The Textile Workers ' Union, Amritsar vs The State of Punjab and others, A. I. R. 1957 pun.
255 and Hayendranath Bose vs Second Industrial Tribunal, , overruled.
South Indian Estate Labour Relations Organisation vs The State of Madras, , distinguished.
Consequently, where the appropriate Government by two notifications, issued one after the other, referred two industrial disputes between two batches of workmen and their employer for adjudication to the industrial tribunal constituted for that purpose and, thereafter, by a third notification superseded the two earlier notifications and the High Court, on the applications of both the workmen and the employer under articles 226 and 227 of the Constitution, issued a writ of certiorari quashing that notification and by a writ of mandamus required the tribunal to proceed expeditiously with the two references and the State Government appealed: Held, that the impugned notification was invalid and ultra vires 'and the finding of the High Court must be affirmed.
Held, further, that since a reference under section 10(1) of the was in the nature of an administrative act, the more appropriate writ to issue would be one of mandamus and not one in the nature of certiorari.
The State of Madras vs C. P. Sarathy, , referred to.


judgement:
ivil Appeal No. 1846 of 1974.
From the Judgment and Order dated 25.9.1972 of the Bombay High Court in Appeal No. 512 of 1965.
V.N. Ganpule and Mrs. Urmila Sirur for the Appellant.
V.A. Bobde, Uday U. Lalit and A.G. Ratnaparkhi for the Respondent.
The Judgment of the Court was delivered by SHARMA, J.
This appeal by the plaintiff appellant is directed against the decision of the Bombay High Court dismissing her suit for possession of the properties de tailed in the plaint.
The disputed properties belonged to a joint Hindu family governed by Mitakshara law of which one Bhiku and his son Balu were coparceners.
Bhiku died on June 6, 1942 leav ing behind his widow Parvati, the defendant No. 2 in the present suit and Balu who dies soon after his father 's demise on July 24, 1942.
In November 1942 Balu 's widow Lilabai gave birth to a posthumous daughter who is the present appellant.
Sometime later Lilabai remarried and thereupon Parvati 466 adopted Vithal, the first defendant in the present suit, in the year 1949.
After attaining majority, appellant Ashabai filed the present suit for a decree for possession of the properties with mesne profits and a decree for money for Rs.3,000 as expenses of her marriage.
She challenged the power of her grand mother to adopt the first defendant on the ground that her right to adopt was lost on the death of Balu leaving behind his widow Lilabai.
The trial court accepted the defence case, upheld the adoption of the defendant No. 1 as valid, and dismissed the suit.
The plaintiff, Ashabai, challenged the decision by an appeal which was heard by the Extra Assistant Judge, Poona, who allowed the same and passed a decree for possession of the suit properties along with mesne profits.
Now, it was the turn of the defendants to question the decree of the first appellate court before the High Court under section 100 of the Code of Civil Procedure.
After considering a number of Privy Council and Supreme Court decisions, the High Court ruled that a Hindu widow 's power to adopt is revived the moment there is nobody to continue the line, and since Lilabai incapacitated herself in doing so by her remarriage, the right of her mother in law to adopt a son to her husband revived.
The adoption of the first defendant was, thus, found legal and valid.
Accordingly the decree in favour of the plaintiff was set aside and her suit dismissed.
The appellant then moved this Court under Article 136 of the Constitution and special leave has been granted.
The case comes from Maharashtra where a Hindu widow may adopt even without any authority.
The contention of the plaintiff is that on the death of Balu his mother Parvati lost this power which vested in Balu 's widow Lilabai and on Lilabai 's remarriage Parvati 's power did not revive.
The adoption of defendant No. 1 was, therefore, illegal.
Reli ance was placed on several decisions of the Bombay High Court including that in Ram Chandra vs Murlidhar, In similar circumstances the Division Bench held that the mother 's power to adopt a son was permanently extinguished on the death of her natural son leaving a widow.
The High Court in the present case refused to follow the said decision on the ground that the same must be held to have been impliedly over ruled by the judgment of this Court in Gurunath vs Kamalabai, ; our view the High Court has not correctly appreciated the deci sion in Gurunath 's case.
The relevant facts in Gurunath vs Kamalabai, may be briefly put thus.
The disputed property belonged to Krishta rao who died leaving behind two widows Radhabai and Ganga bai and a son 467 Dattatraya.
Dattatraya died in 1913 leaving behind his widow Sundarabai and a son Jagannath.
Sundarabai died soon after the death of her husband and a year later Jagannath also died.
Gangabai, the junior widow of Krishtarao, adopted Gurunath, the appellant before this Court, who filed a suit claiming certain rights as the adopted son of Krishtarao.
One of the issues arising in the case related to the validi ty of Gurunath 's adoption.
A Bench of seven learned Judges of this Court examined several decisions of the Privy Coun cil including the judgment in Arnarendra Mansingh vs Sanatan Singh, [1933] L.R. 60 I.A. 242, and said that the rule, "That the interposition of a grand son, or the son 's widow, competent to continue the line by adoption brings the mother 's power of adoption to an end;" was being followed for a very long time and has become a part of Hindu law.
They also approved the observation of Chandavarkar, J., who delivered the judgment of the Full Bench of the Bombay High Court in Ramkrishna Ramchandra vs Shamrao, Bom.
526, to the following effect: "Where a Hindu dies leaving a widow and a son, and that son dies leaving a natural born or adopted son or leaving no son but his own widow to continue the line by means of adoption, the power of the former widow is extinguished and can never afterwards be revived.
" They also quoted with approval another part of the judgment of Chandavarkar, J., stating that when a son dies before attaining full legal competence and does not leave either a widow or a son or an adopted son then the power of the mother which was in abeyance during his lifetime revives but the moment he hands.
over that torch to another, the mother can no longer take it.
In view of these observations in the judgment in Gurunath 's case there does not appear to be any scope for holding that on the remarriage of the son 's widow the power of the son 's mother to adopt revives.
The matter does not stop here.
Reliance was placed by the appellant on the decision of the Nagpur High Court in Bapuji vs Gangaram, [1941] I.L.R. Nagpur 178, where the facts were identical to those in the present appeal.
The Nagpur High Court had held that the power of the mother revived on the remarriage of the son 's widow.
This Court discussed the Nagpur judgment at some length at pages 1148 and 1149 and disapproved it.
This part of the judgment does not leave any room for doubt that this Court in Gurunath 's case has affirmed the decisions of the Bombay High Court in Ramkrishna Ramchandra vs Shamrao, Bom.
526 468 and Ram Chandra vs Murlidhar, , as laying down the correct law and rejected the rule of law similar to the plea of the present respondent, recognised by Nagpur High Court in identical facts and circumstances.
We accordingly hold that on the death of Balu the responsibili ty for the continuance of the family line fell on his widow Lilabai by the power of adoption vesting in her, and the power of Parvati to adopt was extinguished permanently and did not revive even on Lilabai 's remarriage.
Consequently the adoption of first defendant was invalid in the eye of law and he did not get any interest in the suit properties.
Now remains the next question as to the relief which the plaintiff is entitled to get in this suit.
As has been observed earlier, the properties belonged to the joint family of which Bhiku was a coparcener.
On his death in 1942 his wife Parvati got under section 3(2) of the Hindu Women 's Rights to Property Act, 1937, the same interest as Bhiku had in the joint family properties.
If a partition had taken place Bhiku would have got half share in the properties, which on his death devolved on Parvati.
Parvati is still alive and is defending the claim of her grant daughter.
She cannot, therefore, be deprived of her half share in the properties.
The interest which initially devolved on Para vati, however, was the limited in nature known as Hindu Woman 's estate.
On the passing of the , she became full owner thereof.
Likewise the remaining half share of Balu in the properties, devolved on the appel lant on her mother 's remarriage and she got a Hindu Woman 's estate therein which ripened in full ownership under section 14(1) of the .
She is thus entitled to a decree for half share in the suit properties, as prayed for by way of an alternative relief in the plaint.
She has also asked for a decree for partition in case of a partial decree which she is entitled to get.
The first appellate court had also granted a decree for mesne profits, pendente lite and future, which should be restored but only in respect of her half share.
Accordingly, an inquiry shall be made under Order XX, Rule 12, CPC.
Her claim for a money decree for Rs.3,000 was not allowed even by the first appellate court and stands finally rejected.
In the result, the decision of the High Court is set aside and the plaintiff 's suit for half share in the suit properties with mesne profits as also for portion is de creed.
The appeal is accordingly allowed in part, but the parties are directed to bear their own costs throughout.
R.N.J. Appeal allowed.

summary:
The disputed property belonged to a joint Hindu family, governed by Mitakshra law of which one Bhiku and his son were coparceners.
Bhiku died leaving behind Parvati his widow and a son, Balu.
Soon after, Balu too died, leaving behind his widow Lilabai who gave birth to a posthumous daughter, the present appellant.
Sometime later Lilabai remarried.
Thereupon Parvati, Bhiku 's surviving wife adopted Vithal, the present respondent in this appeal.
The appel lant, Ashabai on attaining majority filed the present suit for a decree for possession of properties with mesne profits and a decree for money and challenged the power of her grand mother to adopt.
The trial court upheld the adoption of the defendant as valid and dismissed the suit.
The plaintiff Ashabai chal lenged the decision by an appeal.
The Appellate court al lowed the appeal and passed a decree in her favour granting the reliefs claimed.
Thereupon the defendants challenged the decree of the first appellate court in the High Court.
The High Court ruled that a Hindu widow 's power to adopt is revived the moment there is nobody to continue the line, and thus the adoption of the respondent was found legal and valid and the decree in favour of the plaintiff appellant was set aside and her suit dismissed.
Hence this appeal by special leave by the plaintiff.
Allowing the appeal in part by decreeing the suit for half share in the suit properties with mesne profits this Court, HELD: There does not appear to by any scope for holding that on the remarriage of the son 's widow the power of son 's mother to adopt revives.
[467F] In the instant case, on the death of Balu, the responsi bility for the continuance of the family line fell on his widow Lilabai by the power of adoption vesting in her and the power of Parvati to adopt was extin 465 guished permanently and is not revived even on Lilabai 's remarriage.
Consequently the adoption of the first defendant was invalid in the eye of law and he did not get any inter est in the suit properties.
[468B] The properties belonged to the joint family of which Bhiku was a coparcener.
On his death in 1942 his wife Par vati got under section 3(2) of the Hindu Women 's Rights to Property Act, 1937, the same interest as Bhiku had in the joint family properties.
[468C] The interest which initially devolved on Parvati, howev er, was limited in nature known as the Hindu Women 's estate.
On passing of the Hindu Succession Act, 1957 she became full owner thereof.
[468D] Ram Chandra vs Murlidhar, ; Gurunath vs Kamlabai, ; ; Amrendra Mansingh vs Sanatan Singh, [1933] L.R. 60 I.A. 242; Ramkrishna Ram chandra vs Shamrao, Bom.
526 and Bapuji vs Gangaram, [1941] I.L.R. Nagpur 178, referred to.


judgement:
Petition (Civil)No. 338 of 1989.
(Under Section 25 of the Code of Civil Procedure, 1908).
Petitioner in person.
V.M. Tarkunde, P.K. Dey and Ms. Rani Jethmalani for the Respondent.
The Judgment of the Court was delivered by AHMADI, J.
Dr. Subramaniam Swamy, the defendant in Suit No. 945/89 pending on the original side of the Bombay High Court, has filed this petition under Section 25 of the Code of Civil Procedure, 1908 ( 'The Code ' hereafter) read with Order XXXVI B of the Supreme Court Rules, 1966, praying for the transfer of the aforesaid suit from the Bombay High Court to any Civil Court in Karnataka, preferably the City Civil Court at Bangalore, on the ground of forum non conven ience.
The respondent Shri Ramakrishna Hegde has filed the aforesaid suit in the Bombay High Court claiming a sum of Rupees one crore by way of damages for injury caused to his reputation by the publication/ imputation of certain alleged defamatory statements made by the petitioner at a Press Conference held in New Delhi on January 10, 1989 which was attended by several members of the Press and media specially invited to the said Conference.
The allegation in the plaint is that the petitioner levelled several accusations against the respondent at the said Press Conference which were widely circulated/reported in the newspapers of January 11, 1989.
These allegations have been catalogued in clauses (a) to (p) of paragraph 4 of the plaint.
It is also alleged that the petitioner had also issued a written statement contain ing allegations set out in clauses (q) to (y) of paragraph 5 of the plaint and followed it up by further similar allega tions made on January 12, 1989 and January 27, 1989, all of which are per se defamatory.
We need not set out the allega tions forming the basis of the suit as they are not relevant for the disposal of this petition.
Suffice it to say that the suit filed by the respondent in the Bombay High Court is for damages for injury caused to his reputation.
472 The petitioner is a politician who is serving his fourth term as a Member of Parliament and is presently a Member of the Rajya Sabha having been elected to that office on a Janta Party ticket sometime in March, 1988.
He claims to have served on various Investigative Committee of Parlia ment, to have received his Doctorate from the Harvard Uni versity in USA where he later taught for almost a decade and to have published more than 150 books, articles and research papers on various aspects of Indian policy including econom ic policy of the country.
On account of this background, contends the petitioner, he was able to understand, analyse and expose the details of the respondent 's various acts of corruption, favouritism and nepotism committed during his tenure as Chief Minister of the State of Karnataka, at the Press Conference of January 10, 1989.
In paragraph 8 of the petition the petitioner states that he "accepts the publica tion of the allegations complained of by the respondent.
" It is thus seen that the factum of publication of the allega tions is not in dispute.
The petitioner, however, contends that the most appro priate place for the trial of the suit filed by the respond ent is the State of Karnataka where the various acts com plained of were committed by the respondent from time to time during his tenure as the Chief Minister of the State.
The grounds in support of the petitioner 's contention may be summarised as follows: the petitioner 's father maintains a family house in Bangalore; all the events that provide the defence to the litigation took place in Karnataka at Banga lore; the entire documentary evidence touching the alleged acts being in official files and in private custody would be easily available in Bangalore; most of the witnesses who are in know of the respondent 's wrongs are residents of Karnata ka, more particularly Bangalore; the discovery and inspec tion of documents can be conveniently had in Bangalore where they are available; the evidence pertaining to telephone tappings done at the behest of the respondent would be available in Karnataka, Bangalore and since the people of Karnataka are vitally interested in the outcome of this litigation, it is essential that the suit should be tried in Karnataka and not in Bombay.
It is further alleged that if the respondent is keen on vindicating his honour he should have no objection to the transfer of the suit to a Civil Court in Karnataka where the suit can be disposed of more expeditiously than Bombay where the Court calendars are clogged because of heavy backlog and a similar suit filed by Shri A.R. Antulay, the Ex Chief Minister of Maharashtra in 1982 has still not reached heating.
According to him, having regard to the nature of the respondent 's suit, it is doubt ful if the Bombay High Court would permit it to jump its place in the queue.
It is lastly alleged 473 that since the respondent is admittedly a resident of Banga lore and usually divides his time largely between Delhi and Bangalore he should have no objection to the trial of the suit in the State of Karnataka.
On the other hand if the suit is not transferred as prayed the petitioner will be considerably handicapped in his defence as both oral and documentary evidence will not be easily available.
The petitioner, therefore, contends that it is necessary to order transfer of the case to meet the ends of justice.
The respondent has filed his counter opposing the peti tion.
He contends that the petitioner having aligned himself with the ruling party at the Centre is indulging in making intemperate, slanderous and false allegations against him with a view to maligning him and advancing the political interest of the ruling party at the Centre.
According to him the suit in the Bombay High Court is delayed as the peti tioner has failed to file his written statement to the suit.
After he files the written statement, a summons for direc tions can be taken out and a request to expedite the suit can be made to the High Court; if the petitioner is sincere in his profession, he should join the respondent in request ing the High Court for an early hearing of the suit.
He further states that this Court can also direct the Bombay High Court to hear and dispose of the suit within a period of six months from the date of the order.
According to the respondent it is not necessary to transfer the suit from the Bombay High Court to a Court in Karnataka merely on the ground that the latter court will be able to dispose of the suit more expeditiously having regard to comparatively less pressure of work.
As regards the allegation that the peti tioner 's father maintains a family house in the State of Karnataka, the respondent contends that the petitioner normally makes frequent visits to Bombay where his in laws have a comfortable home at Nepean Sea Road, Bombay.
The respondent further contends that being the dominus litis he was entitled to choose the forum and no valid grounds have been made out in the petition for the transfer of the suit.
The respondent, therefore, prays that the petition should be dismissed with costs.
The petitioner has filed his rejoinder to the respond ent 's counter.
He contends that the respondent has not made a serious attempt to counter the grounds on which the trans fer petition is founded.
He denies the allegation that he was aligned himself with the ruling party at the Centre and is deliberately making intemperate, slanderous and false accusations against the respondent with a view to advancing the political interest of the said party.
On the question of delay in filing the written statement to the suit he con tends that he 474 received the summons on April 7, 1989 requiring him to appear before the Judge in Chambers on July 25, 1989.
He states that on enquiry he discovered that there was a long queue of matters listed for directions on that date and he was told that his matter was not likely to reach even for preliminary directions in the current year.
He states that his written statement is ready but he has not filed it as his suit is not listed for directions.
He has denied the allegation that his visits to Bombay are more frequent that his visits to Bangalore.
While admitting the fact that he has a place to stay in Bombay he emphasises that his home is in Delhi and his father 's home is in Bangalore and since the events in question had taken place in Bangalore, he consid ers the Karnataka Courts to be the natural and proper forum for the trial of the suit.
According to him while the re spondent had made the choice of forum by instituting the suit at Bombay, Section 25 of the Code empowers this Court to transfer the suit to Karnataka to meet the ends of jus tice.
He, therefore, contends that this Court should exer cise its discretion in the interest of justice and transfer the case to Karnataka where the events complained of had taken place, where the documentary evidence is available in public records and where the witnesses of the alleged trans actions ordinarily reside.
The present Section 25 of the Code was inserted by Section 11 of the Code of Civil Procedure (Amendment) Act, 1976.
The relevant part of the Section with which we are concerned reads as under: "25(1) On the application of a party and after notice to the parties and after hearing such of them as desire to be heard, the Supreme Court may, at any stage, if satisfied that an order under this section is expedient for the ends of justice, direct that any suit, appeal or other proceeding be transferred from a High Court or other Civil Court in one State to a High Court or other Civil Court in any other State.
" Under the old section the State Government was empowered to transfer a suit, appeal or other proceeding pending in the High Court of that State to any other High Court on receipt of a report from the Judge trying or hearing the suit that there existed reasonable grounds for such transfer provided the State Government of the State in which the other High Court had its principal seat consented to the transfer.
The present Section 25 confers the power of trans fer on the Supreme Court and is of wide amplitude.
Under the present provision the Supreme Court is empowered at any stage to transfer any suit, appeal or 475 other proceeding from a High Court or other Civil Court in one State to a High Court or other Civil Court of another State if it is satisfied that such an order is expedient for the ends of justice.
The cardinal principle for the exercise of power under this section is that the ends of justice demand the transfer of the suit, appeal or other proceeding.
The question of expediency would depend on the facts and circumstances of each case but the paramount consideration for the exercise of power must be to meet the ends of jus tice.
It is true that if more than one court has jurisdic tion under the Code to try the suit, the plaintiff as domi nus litis has a right to choose the Court and the defendant cannot demand that the suit be tried in any particular court convenient to him.
The mere convenience of the parties or any one of them may not be enough for the exercise of power but it must also be shown that trial in the chosen forum will result in denial of justice.
Cases are not unknown where a party seeking justice chooses a forum most inconven ient to the adversary with a view to depriving that party of a fair trial.
The Parliament has, therefore, invested this Court with the discretion to transfer the case from one Court to another if that is considered expedient to meet the ends of justice.
Words of wide amplitude for the ends of justice have been advisedly used to leave the matter to the discretion of the apex court as it is not possible to con ceive of all situations requiring or justifying the exercise of power.
But the paramount consideration must be to see that justice according to law is done; if for achieving that objective the transfer of the case is imperative, there should be no hesitation to transfer the case even if it is likely to cause some inconvenience to the plaintiff.
The petitioner 's plea for the transfer of the case must be tested on this touch stone.
The learned counsel for the respondent invited our attention to the observations of this Court in Maneka Sanjay Gandhi & Anr.
vs Rani Jethmalani, [ ; In that case the petitioner figured as an accused in the prosecution launched against her and another by the respondent for an offence of defamation in the Court of Metropolitan Magis trate, Bombay.
This Court was approached for the transfer of the Criminal Case from Bombay to Delhi.
While declining the request for transfer this Court observed as under: "Assurance of a fair trial is the first imper ative of dispensation of justice and the central criterion for the Court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like mini grievances.
Something more sub stantial, more compelling, more imperilling, 476 from the point of view of public justice and its attendant environment, is necessitous if the Court is to exercise its power to trans fer.
This is the cardinal principle although the circumstances may be myriad and vary from case to case.
We have to test the petitioner 's grounds on this touchstone bearing in mind the rule that normally the complainant has the right to choose any court having jurisdiction and the accused cannot dictate where the case against him should be tried.
Even so, the process of justice should not harass the parties and from that angle the court may weigh the circumstances.
" Counsel for the respondent pointed out that mere conven ience of the petitioner and absence of likelihood of preju dice to the respondent should not weigh with the court in directing the transfer of the suit from the Bombay High Court to a Civil Court in Karnataka.
We have already empha sised that the paramount consideration for transfer of the case under Section 25 of the Code must be the requirement of justice.
If the ends of justice so demand, the case may be transferred under this provision notwithstanding the right of dominus litis to choose the forum and considerations of plaintiff 's convenience, etc., cannot eclipse the require ment of justice.
Justice must be done at all costs, if necessary by the transfer of the case from one Court to another.
That is why in Union of India vs Shiromani Gurudwa ra Parbandhak Committee & Ors., ; this Court while sounding a note of caution that the power must be exercised with circumspection observed that the court should not hesitate to act if the ends of justice so demand in an appropriate case.
In the light of the principle enunciated above, we may now consider the case before us.
On a bare perusal of the allegations set out in clauses (a) to (p) of paragraph 4 and clauses (q) to (y) of paragraph 5 of the plaint, which form the basis of the suit, it is evident that the charges of corruption, favouritism and nepotism levelled against the respondent mainly concern the allotment of lands situate in Bangalore and other parts of Karnataka at throw away prices to his close relatives and favoured few besides non resident Indians.
In substance the allegation is that the respondent and his family members pocketed more than Rs.300 crores through fraudulent deals in lands situate in Bangalore and other parts of Karnataka.
There can, therefore, be no doubt that most of the oral as well as the documentary evidence regarding the alleged scandalous deals would be available in Karnataka, more particularly in Bangalore, and not at Bom bay.
If the trial proceeds at 477 Bombay, voluminous evidence will have to be carried to Bombay and several witnesses may have to travel to Bombay to give evidence.
Apart from the inconvenience likely to be caused to the witnesses, the petitioner would also be re quired to incur substantial travel expenses to secure the presence of the witnesses in view of Order XVI Rule 19 of the Code.
And yet, witnesses may be reluctant to travel the long distance to Bombay.
Considerable difficulty may also be experienced in securing discovery and inspection of docu ments.
As the petitioner does not deny the publication of the allegations complained of in the plaint, the burden of establishing his defence to the suit will be on him and he may be required to examine a number of witnesses to dis charge the same.
We have, therefore, no doubt that the petitioner would be handicapped in his defence to the suit if the suit is tried in Bombay.
The ends of justice, there fore, demand that the suit be transferred from the Bombay High Court to the City Civil Court, Bangalore, where most of the documentary evidence and the majority of the witnesses are available.
The respondent in paragraph 20 of the plaint states that since "the impugned allegations have been published through out the nation, including Bombay", the Bombay High Court has jurisdiction to, entertain and try the suit.
The jurisdic tion of the Bombay High Court is, therefore, invoked solely on the ground of publication of the impugned allegations.
It is not the respondent 's case that these allegations had not been published in Karnataka State or in Bangalore where the respondent ordinarily resides.
This also becomes clear from his address given in the cause title of his plaint.
It is not suggested by the respondent in his counter nor was it contended by his counsel that the transfer of the suit will result in substantial prejudice to the respondent.
Since the respondent ordinarily resides in Bangalore and was the Chief Minister of Karnataka during the period the var ious acts of which he is accused took place, the impact of the accusations would be as much if not more on the readers of Bangalore.
There would, therefore, be no dearth of read ers in Bangalore who may have read the offending matters.
We are, therefore, of the opinion that no prejudice, much less substantial prejudice, would be caused to the respondent if the suit is transferred as prayed.
It must however be mentioned that the learned counsel for the respondent argued that the petitioner is seeking transfer of the suit to Bangalore so that he may be able to further defame the respondent.
In this connection he laid stress on the averments in the petition that the 478 suit should be tried in Bangalore as the people of Karnataka are vitally concerned in the outcome of the litigation.
It cannot be denied that the people of that State are indeed vitally interested in the litigation besides the parties themselves but we do not think the petitioner 's request can be spurned on that ground.
Besides in these days of prompt publicity, the apprehension of the learned counsel in this regard appears to be misplaced.
We, therefore, do not see any merit in this contention.
In the result the petition succeeds.
Suit No. 945 of 1989 (Rama Krishna Hegde vs Dr. Subramaniam Swamy) pending on the original side of the Bombay High Court is hereby transferred to the City Civil Court, Bangalore for trial and disposal in accordance with law from the stage at which it is presently pending.
The Bombay High Court will transmit the record of the suit to the City Civil Court, Bangalore within four weeks from the receipt of the order of this Court.
Parties will bear their own costs.
Y. Lal Petition allowed.

summary:
The Respondent had filed a suit for defamation in the Bombay High Court against the petitioner, claiming Rupees one crore as damages for the injury alleged to have been caused to his reputation by the publication/imputation of certain alleged defamatory statements made by the petitioner at a Press Conference held at New Delhi on January 10, 1989.
The allegation in the plaint was that the petitioner le velled several accusations at the said Press Conference which were widely circulated/reported in the newspapers of January 11, 1989.
In substance the allegation was that the Respondent and his family members pocketed more than Rs.300 crores through fraudulent deals in lands situate in Banga lore and other parts of Karnataka, whereby the respondent favoured his relatives/friends, besides non resident Indi ans.
By the instant petition, filed by the petitioner under section 25.
Code of Civil Procedure, the petitioner prays for the transfer of the said suit pending in Bombay High Court to any Civil Court in Karnataka, preferably the City Civil Court at Bangalore on the ground of forum non conven ience.
In support of the petition it is urged by the peti tioner that: (i) the petitioner 's father maintains a family house at Bangalore; (ii) that all the events that provide the defence to the litigation took place in Karnataka at Bangalore; (iii) that the entire documentary evidence touch ing the alleged acts being in official files and in private custody would be easily available in Bangalore, (iv) that most of the witnesses who are in the know of respondent 's wrongs are residents of Karnataka, more particularly Banga lore; (v) that the discovery and inspection of documents can be conveniently had in Bangalore; (vi) that the evidence relating to telephone tappings done at the behest of the respondent would be available in Karnataka, and (vii) that the people of Karnataka State are vitally interested in the outcome of the litigation.
For these reasons, amongst oth ers, the petitioner prays for the Transfer of the suit from Bombay to Bangalore.
470 The respondent while opposing the transfer of the suit contends that the petitioner having aligned himself with the Ruling Party at the Centre was indulging in making intemper ate, slanderous and false allegations against him with a view to maligning him and advancing the political interest of the Ruling Party at the Centre.
According to him the hearing of the suit has been delayed as the petitioner has not filed his written statement.
The respondent further contends that being the dominus litis he was entitled to choose the forum.
Allowing the petition, this Court, HELD: The Supreme Court is empowered at any stage to transfer any suit, appeal or other proceeding from a High Court or other Civil Court in one State to a High Court or other Civil Court of another State if it is satisfied that such an Order is expedient for the ends of justice.
[474H; 475A] The question of expediency would depend on the facts and circumstances of each case but the paramount consideration for the exercise of power must be to meet the ends of jus tice.
[476C] Words of wide amplitude for the ends of justice have been advisedly used to leave the matter to the discretion of the apex court as it is not possible to conceive of all situations requiring or justifying the exercise of power.
[475D] If the ends of justice so demand, the case may be trans ferred under this provision notwithstanding the right of dominus litus to choose the forum and considerations of plaintiff 's convenience, etc.
cannot eclipse the requirement of justice.
Justice must be done at all costs, if necessary by the transfer of the case from one Court to another.
[476D E] The ends of justice in the instant case demand that the suit be transferred from the Bombay High Court to the City Civil Court, Bangalore, where most of the documentary evi dence and the majority of witnesses are available.
Since the respondent ordinarily resides in Bangalore and was the Chief Minister of Karnataka during the period the various acts of which he is accused of took place, the impact of the accusa tion would be as much, if not more, on the readers of Banga lore.
No prejudice, much less substantial prejudice would be caused to the respondent if the suit is transferred as prayed.
[477C & F G] 471 Sanjay Gandhi and Anr.
vs Rani Jethmalani, ; and Union of India vs Shrimani Gurdwara Prabandhak Committee and Ors.
, ; , referred to.


judgement:
ivil Appeal No. 4195 of 1989.
From the Judgment and Order dated 16.2.1987 of the Andhra Pradesh High Court in C.R.P. No. 3750 of 1984.
B. Kanta Rao for the Appellant.
M.S. Ganesh for the Respondents.
The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.
We grant special leave and proceed to dispose of the appeal.
In O.S. No. 821/1973, there was ex parte decree against the appellant for payment of Rs.2,000 and cost.
In execution of the decree, the appellant 's land section No.116 at Bayanguda village measuring 10 acres was brought to Court sale.
His small farm house was also located in the land.
In the auc tion held the respondent purchased the land for Rs. 17,000.
The sale was subject to the prior mortgage for Rs.2,000 in favour of the Land mortgage Bank Jangareddigudem.
On 31 May 1976 the sale was confirmed.
On 26 July 1976, the appellant filed application under Order XXI Rule 90 for setting aside the sale.
He impeached the auction sale broadly on three grounds namely: (i) that he was the owner of only one acre of land and the remaining 9 acres in the said survey number belonged to his father Siddaiah, (ii) that the land was worth about Rs.70,000 but it was sold for a very low price of Rs. 17,000 by fraudulent procedure followed by the au thorities, and (iii) that he was not served with notice before attachment or sale.
453 In support of the above allegations, the appellant entered the witness box as PW 2.
He has also examined four other witnesses besides producing documentary evidence marked as exhibit A 1 to A 13.
The auction purchaser in turn has examined three witnesses.
On appraisal of the evidence, the executing court the Principal District Munsif, Kovvur, rejected the application of the appellant.
He held that the sale was not vitiated by fraud or irregularity.
The appeal against that order was dismissed by learned Subordinate Judge at Kovvur.
Before the appellate court, one other contention was argued on behalf of the appellant.
It was contended that the executing court ought to have sold only such portion of the land as would satisfy the decretal dues and the sale of the entire 10 acres was illegal and without authority.
The appellate court rejected that contention for the reason that it is a single piece of land and could not have been divided into parcels.
The High Court of Andhra Pradesh also dismissed the appel lant 's revision, but expressed no opinion as to whether a portion of the land could have been sold to satisfy the decree.
Hence this appeal.
The principal question that has been highlighted before us relates to the legality of the sale of 10 acres of land without considering whether a portion of the land could have been sold to satisfy the decree.
It is said that the total sum claimed in the execution was Rs.2,395.50.
The relevant provision which has a bearing on the question is Rule 64 Order XXI of the Code of Civil Procedure and it reads as follows: "Order XXI Rule 64: Power to order property attached to be sold and proceeds to be paid to persons entitled Any Court executing a decree may order that any property attached by it and liable to sale, or such portion thereof as may seem necessary to satisfy the decree, shall be sold, and that the proceeds of such sale, or a sufficient portion thereof, shall be paid to the party entitled under the decree to receive the same.
" It is of importance to note from this provision that in all execution proceedings, the Court has to first decide whether it is necessary to bring the entire attached proper ty to sale or such portion thereof as may seem necessary to satisfy the decree.
If the property is large and the decree to be satisfied is small, the Court must bring only such 454 portion of the property, the proceeds of which would be sufficient to satisfy the claim of the decree holder.
It is immaterial whether the property is one or several.
Even if the property is one, if a separate portion could be sold without violating any provision of law only such portion of the property should be sold.
This, in our opinion, is not just a discretion, but an obligation imposed on the Court.
Care must be taken to put only such portion of the property to sale the consideration of which is sufficient to meet the claim in the execution petition.
The sale held without examining this aspect and not in conformity with this re quirement would be illegal and without jurisdiction.
In Takkaseela Pedda Subba Reddy vs Pujari Padmavathamma and Ors., at 340; this Court after examin ing the scope of Rule 64 of Order XXI CPC has taken a simi lar view: "Under this provision the executing Court derives jurisdiction to sell properties at tached only to the point at which the decree is fully satisfied.
The words 'necessary to satisfy the decree ' clearly indicate that no sale can be allowed beyond the decretal amount mentioned in the sale proclamation.
In other words, where the sale fetches a price equal to or higher than the amount mentioned in the sale proclamation and is sufficient to satisfy the decree, no further sale should be held and the court should stop at that stage.
" We may again hark back to the case of the appellant.
The amount claimed in the execution petition was about Rs.2,400.
To realize that amount the land measuring 10 acres was sold for Rs. 17,000.
The appellate court has stated that the land being one, could not have been divided.
Shri Ganesh, learned counsel for the respondent sought to justify that view.
But we find it difficult to appreciate that reason.
It seems to be against common sense.
The land is not indivisible.
Nor division is impracticable or undesirable.
Out of 10 acres, the Court could have conveniently demarcated a portion and sold it.
Unfortunately, no such attempt was made and it was not even thought of.
The Court has blind fold sold the entire property.
This is a usual feature which we have noticed in most of the execution cases.
We must deprecate this tendency.
There is a duty cast upon .the
Court to sell only such property or a portion thereof as necessary to satisfy the decree.
It is a mandate of the legislature which cannot be ignored.
We cannot, therefore, sustain the im pugned sale.
It must be set aside being in contravention of the provisions of Rule 64, Order XXI CPC.
455 In the result, we allow the appeal with costs.
In rever sal of the orders of the courts below, we set aside the impugned sale.
We direct the Executing Court first to put the appellant in possession of the land in question and then refund the sale amount to the auction purchaser if it is in deposit.
The Court, thereafter may proceed to execute the decree according to law and in the light of the observations made.
This order shah be complied with within two months from the date of receipts of this order.
P.S.S. Appeal allowed.

summary:
Rule 64, Order XXI CPC empowers the Court executing a decree to bring to sale any property attached by it or such portion thereof as may seem necessary to satisfy the decree.
The appellant 's land measuring 10 acres was brought to court sale in execution of a decree.
The respondent purchased the land for Rs. 17,000.
The sale was subject to a prior mort gage for Rs.2,000.
The appellant 's application under Order XXI, Rule 90 for setting aside the sale was rejected by the executing court on the ground that the sale was not vitiated by fraud or irregularity.
The appeal against the order was dismissed by the Subordinate Judge.
Before the appellate court the con tention taken on behalf of the appellant was that the exe cuting court ought to have sold only such portion of the land as would satisfy the decretal dues and the sale of the entire 10 acres was illegal and without authority.
The court rejected that contention on the ground that it was a single piece of land and could not have been divided into parcels.
The High Court also dismissed the revision.
Allowing the appeal by special leave, HELD: In all execution proceedings, the court has to first decide whether it is necessary to bring the entire attached property to sale or such portion thereof as may seem necessary to satisfy the decree.
If the property is large and the decree to be satisfied is small, the court must bring only such portion of the property to sale the proceeds of which would be sufficient to satisfy the claim of the decree holder.
It is a mandate of the legislature which cannot be ignored.
Any sale held without examining this aspect and not in conformity with this requirement would thus be illegal and without jurisdiction.
[453H; In the instant case, the amount claimed in the execution petition was about Rs.2,400.
To realize that amount the land measuring 10 acres was sold for Rs.17,000.
The land is not indivisible.
Nor division is impracticable or undesirable.
Out of 10 acres, the court could have conveniently demarcat ed a portion and sold it.
[454E F] The sale must, therefore, be set aside being in contra vention of the provision of Rule 64, Order XXI CPC.
[454H] Takkaseela Pedda Subba Reddy vs Pujari Padmavathamma & Ors., at 340, referred to.