judgement:
Appeal No. 1690 of 1993.
From the Judgment and Order dated 14.2.1991 of the Central Administrative Tribunal Jabalpur in O.A. No. 217 of 1987.
M.K. Ramamurthi and V.J. Francis for the Appellants.
Narayan B. Shetye, K. Lahiri, Vineet Kumar, Ms. Sushma Suri, Ms. Kitty Kumar Mangalam, S.N. Terdo and B.K. Prasad for the Respondents.
The Judgment of the Court was delivered by KULDIP SINGH, J.
Special leave granted.
This appeal is a sequel to the checkered litigation, over a period of two decades, between members of the Indian Ordnance Factories Class III Service (the Service).
The first round of litigation was concluded in favour of K.K.M. Nair and others, the appellants, on July 28,1986 when the special leave petitions filed by the Union of India, against the judgment of Madhya Pradesh High Court, were dismissed by this court.
As a consequence the Director General Ordnance Factories (DG) issued an order dated February 20/25, 1987 granting benefits to the appellants towards seniority 909 in different grades of the Service.
S.K Chattopadhyay and others, the respondents, who were not parties to the earlier litigation, challenged the order dated February 20/25, 1987 before the Central Administrative Tribunal.
The Tribunal by its judgment dated February 14,1991 allowed the application of S.K Chattopadhyay and others and set aside the order dated February 20/25, 1987.
This appeal by K.K.M. Nair and others is against the judgment of the Central Administrative Tribunal Jabalpur.
The recruitment and seniority of the members of the Service are governed by the statutory rules called 'Indian Ordnance Factories (Recruitment and Conditions of Service of Class III Personnel) Rules, 1956" (the rules).
Rules 3(1), 8 and 12 of the rules which are relevant are reproduced hereunder: "3(1).
The Class III personnel service in the Indian Ordnance Factories to which these rules shall apply consists of the posts of the following grades, namely: Foreman (including Foreman/Design).
Storeholder Assistant Foreman Assistant Storeholder Chargeman, Grade I (including Chargeman, Grade I/Design) Chargeman, Grade II Supervisor, Grade 'A ' Supervisor, Grade 'B '.
8(1) Appointments by promotion shall be made by the Director General on the basis of selection lists prepared for the different grades by the duly constituted Depart mental Promotion Committees.
(2) Such Selection lists shall be prepared: 910 (a) In respect of appointment to the grade of Foreman, Storeholder, Assistant Foreman, Assistant Storeholder by the Departmental Promotion Committee 11 consisting of the Director General and two officers of the Directorate General, Ordnance Factories nominated by the Director General; (b) In respect of appointments to the grade of Chargeman, Grade I, and Chargeman, Grade 11, by the Departmental Promotion Committee III (Central) consisting of the Deputy Director General, Ordnance Factories and two officers of the Directorate General, Ordnance Factories nominated by the Director General after perusal of the recommendations of the Departmental Promotion Committee III (Factories) which shall be set up in each Factory and shall consist of the Superintendent of the Factory and two other gazetted officers of the Factory nominated by the Director General; and (c) In respect of appointments to the grades of Supervisor 'A ' and 'B ' Grades by the Departmental Promotion Committee III (Factories) consisting of the Superintendent of the Factory and two other gazetted officers of the Factory nominated by the Director General.
(3) The Departmental Promotion Committee shall meet periodically at least once a year and as more often as may be necessary and shall prepare for each grade and category in order of merit a list of names of persons considered at for promotion.
(4) A vacancy to be filled by promotion shall be filled by persons on the approved list strictly in the order in which names are arranged in that list provided that: (i) appointments to the grade of Supervisors, Grade 'A ' shall normally be confined to employees in the particular Factory in which the Vacancy has arisen; and (ii) in respect of appointment to other posts the next 911 person on the list working in the Factory in which the vacancy has arisen may be appointed out of turn if the vacancy is not likely to last for more than nine months.
No appointment to the posts to which these rules apply shall be made otherwise than as specified in these rules".
Appellants 1, 6, 11 and 12 were appointed Supervisor Grade 'B ' during the years 1961/62.
The remaining appellants were appointed Supervisor Grade 'A ' during the period 1964/65.
Appellants 1 to 11 were promoted as Chargeman, Grade II on different dates during 1972/77.
They were promoted to Chargeman Grade I during the years 1979/80.
They were further promoted to the post of Assistant Foreman during the period 1981 to 1984.
S.K. Chattopadhyay and others are respondents 4 to 9 in this appeal.
Respondents 4 and 5 joined as Chargeman Grade II in the year 1966, respondent 9 in the year 1967, respondent 6 in the year 1971 and respondents 7 and 8 in the year 1974.
They were promoted to Chargeman Grade I during the years 1978/1979.
Respondents 4 to 9 were further promoted to the post of Assistant Foreman during the period from 1980 to 1984.
It is not disputed that the recruitment and promotions of the appellants and respondents were made in accordance with the rules.
It is necessary to lay down the factual matrix which led to the passing of the order dated February 20/25, 1987 by the DG.
The DG issued circular dated November 6, 1962 (first circular) which is reproduced hereunder: "D.G.O.F. has decided that Diploma holders serving as Supervisor 'A ' (Tech)/Supervisor 'B '/(Tech) and in equivalent grades should be treated as follows: (i) All those Diploma holders who have been appointed as Supervisor 'B ' (Tech) (and in equivalent grades) should on completion of one year 's satisfactory service in ordnance factories be promoted to Supervisor 'A ' (Tech) and in equivalent grades.) (ii) All those Diploma holders who work satisfactorily as Supervisor 'A ' (Tech) or in equivalent grades for 2 years in Ordnance Factory should be promoted to Chargeman.
" 912 Subsequently the D.G. issued circular dated January 20, 1966 (second circular).
The operative part of the second circular is as under: "The question of promotion of Diploma holders in Mech/Elec.
Engineering and Ex apprentices serving as Supr. 'A ' Gr. or in equivalent grades has received further consideration of the D.G.O.F. who has decided that in future promotions of all such individuals will be effected in accordance with the normal rules i.e. on the basis of their listing by the relevant D.P.C. and not merely on completion of 2 years satisfactory continuous service as Super.
or equivalent grades. ' It is, thus, obvious that after the issue of second circular no Supervisor Grade 'A ' could claim to have become eligible for promotion merely on completion of two years satisfactory service and his promotion thereafter could be effected only in accordance with the rules.
In a nut shell the first circular was withdrawn by the second circular.
Seventy Five supervisors Grade 'A ' (other than the appellants and the respondents before us) filed a writ petition in the Allahabad High Court in the year 1972 claiming benefit of the first circular.
Their grievance was that they were not being promoted to the post of Chargeman Grade 11 on completion of two years satisfactory service even though large number of Supervisors Grade 'A ' had already been promoted in terms of the first circular.
The writ petition was contested by the Union of India, inter alia, on the ground that under rule 8 of the rules promotion from Supervisor Grade 'A ' to Chargeman Grade II was to be made on the basis of selection.
In the first instance the selection was to be made by the Departmental Promotion Committee at the Factory level and thereafter by the Departmental Committee at the central level.
The promotions were to be made by the DG on the basis of the select list prepared as a result of the selections made by the two committees.
It was further asserted that all the writ petitioners were considered for promotion in accordance with the rules but they were not found fit for promotion.
The learned Single Judge of the Allahabad High Court, however, did not go into the merits of the controversy and dismissed the writ petition on the ground of delay.
Against the judgment of the learned Single Judge appeal was preferred before a Division Bench of the High Court.
The Division Bench went into the merits 913 of the controversy and came to the conclusion that promotion from Supervisor Grade 'A ' to Chargeman Grade II could only be made in accordance with the procedure laid down under the rules.
The learned Judges further took the view that the first circular was to be interpreted in conformity with the rules.
It was further held that even if it was to be assumed that the DG promoted some Supervisors Grade 'A ' to the post of Chargeman Grade II immediately on the completion of two years service, without following rule 8 of the rules, no right would accrue in favour of the writ petitioners inasmuch as such promotions would be contrary to the rules and would confer no legal right on the writ petitioners for likewise promotion in breach of the rules.
The argument based on Article 16 was also rejected.
The Division Bench of the Allahabad High Court, thus, dismissed the writ petition on merits.
Against the judgment of the Allahabad High Court Civil Appeal No. 441 of 1981 was preferred in this Court.
Since the order dated February 2, 1981 passed in Virendra Kumar & Ors.
vs Union of India and Ors.
Civil Appeal No. 441/81 is the backbone of the appellants claim we reproduce the said order hereunder: "Heard counsel.
Special leave granted.
Our attention has been invited by learned counsel for both the sides to the relevant rules which govern promotion to the post of Chargeman Grade 11.
It appears that a large number of persons have been promoted to those posts though they have completed only two years of service.
The Government now appears to insist that in so far as the appellants are concerned they cannot be considered for promotion unless they complete three years of service.
We see no justification for any such differential treatment being given to the appellants.
If a large number of other persons similarly situated have been promoted as Chargeman Grade 11 after completing two years of service, there is no reason why the appellants should also not be similarly promoted after completing the same period of service.
We are not suggesting that the appellants are entitled to be promoted to the aforesaid posts even if they are found unfit to be promoted.
We therefore direct that the concerned authorities will 914 consider the cases of the appellants for promotion as Chargeman Grade 11 and promote them to the said posts unless they are found to be unfit.
If the appellants are promoted, they will naturally have to be promoted with effect from the date on which they ought to have been promoted.
This order will dispose of the appeal.
There will be no order as to costs.
" Thereafter K.K.M. Nair and 124 others, the appellants, filed six writ petitions before the Madhya Pradesh High Court during the period 1981 82.
It was contended before the High Court that the reasons which weighed with this Court in allowing Civil Appeal No. 441/81 applied to the six writ petitions also and it was prayed that the same relief be granted to the petitioners.
The Madhya Pradesh High Court, relying upon the judgment of this Court in Civil Appeal No. 441/81, allowed the writ petitions by its judgment dated April 4, 1983.
Against the aforesaid judgment of the Madhya Pradesh High Court special leave petitions (Civil) 'Nos. 5987 92/86 were filed in this Court by the Union of India and were dismissed on July 28, 1986.
Pursuant to the judgment of the Madhya Pradesh High Court dated April 4, 1983 the DG issued the order dated February 20/25, 1987 giving ante dated seniority to the appellants for the purposes of promotion to the next higher grades.
The appellants were, thus, given deemed dates of promotion to the post of Chargeman, Grade 11 from the date when they completed two years of service as Grade A and consequent seniority in the other higher grades.
S.K. Chattopadhyay and others who were senior to the appellants in the cadre of Chargeman, Grade 11 and other higher grades in the service were made junior to the appellants as a consequence of the order dated February 20/25, 1987.
At this stage we may notice the judgment of this Court in Palun Ramkrishnaiah & Others etc.
vs Union of India & Anr., ; delivered by a Three Judge Bench of this Court dismissing a bunch of nineteen writ petitions under Article 32 of the Constitution of, India.
The petitioners in the aforementioned writ petitions claimed to have been appointed as Supervisors, Grade 'A ' in various ordnance factories between 1962 to 1966 and had filed the writ petitions with the prayer that the same relief be granted to them as was given by this Court to seventy five 915 Supervisors, Grade A in Civil Appeal No. 441 of 1981.
This Court in Paluru 's case considered the rules, the first circular, the second circular and the order of this court in Civil Appeal No. 441/81 dated February 2, 1981.
Dismissing the writ petitions this Court held as under: 1.
The executive instruction could make a provision only with regard to a matter which was not covered by the rules and such executive instruction could not over ride any provisions of the rules.
Notwithstanding the issue of the instructions dated November 6, 1962 the procedure for making promotion as laid down in rule 8 of the Rules had to be followed, and the said procedure could not be abrogated by the executive instructions dated November 6, 1962.
The only effect of the circular dated November 6, 1962 was that Supervisors Grade 'A ' on completion of two years satisfactory service could be promoted by following the procedure contemplated by rule 8 of the Rules.
This circular had indeed the effect of accelerating the chance of promotion.
The right to promotion on the other hand, was to be governed by the rules.
This right of promotion as provided by the rules was neither affected nor could be affected by the circular.
After coming into force of the circular dated January 20, 1966 promotions could not be made just on completion of two years satisfactory service tinder the earlier circular dated November 6, 1962, the same having been superseded by the latter circular.
Supervisor, Grade A who had been promoted before the coming into force of the circular dated January 20, 1966 stood in a class separate from those whose promotions were to be made thereafter.
The fact that some Supervisors, Grade A had been promoted before the coming into force of the circular dated January 20, 1966 could not, therefore, constitute the basis for an argument that those Supervisors Grade A whose cases came up for consideration thereafter and who were promoted in due course in accordance with the rules were discriminated against.
There are sufficient indications that when Civil Appeal No. 441/81 was heard by this Court the circular dated January 20, 1966 and the legal consequences flowing therefrom were not brought to the notice of this Court by the learned counsel for the respondents or the same were not 916 properly emphasised.
It is thus obvious that the Three Judge Bench of this Court in Paluru 's case did not approve the order dated February 2, 1981 of Two Judge Bench in Civil Appeal No. 441/81.
Since the judgment of this Court in Civil Appeal No. 441/81 had become final inter partes, it had to be implemented.
While considering the extent of the relief to be given to the appellants in Civil Appeal No. 441/81 this Court in Paluru 's case observed as under: "As already noticed earlier certain writ petitions filed in Madhya Pradesh High Court were allowed by that Court were allowed by that Court on 4th April, 1983 relying on the judgment of this Court dated 2nd February, 1981 in Civil Appeal No. 441/81.
Against th e aforesaid judgment of the Madhya Pradesh High Court dated 4th April, 1983 Special Leave Petitions (Civil) Nos.
5987 92 of 1986 were filed in this Court by the Union of India and were dismissed on 28th July, 1986.
The findings of the Madhya Pradesh High Court in its judgment dated 4th April, 1983 thus stand approved by this Court.
In this view of the matter to put them at par it would be appropriate that the appellants in Civil Appeal No. 441 of 1981 may also be granted the same relief which was granted to the petitioners in the writ petitions before the Madhya Pradesh High Court.
" The appellants have raised an argument based on the above quoted observations of this Court in Paluru 's case which we shall consider at a later stage in this judgment.
We may come back to the point of time when the Director General issued the order dated February 20/25, 1987 giving ante dated seniority to the appellants in various grades of the service.
As mentioned above S.K. Chattopadhyay and others were not impleaded as parties at any stage of the litigation earlier to the issue of the said orders.
They were adversely affected in the matter of seniority for the first time by the order dated February 20/25, 1987.
S.K. Chattopadhyay and others challenged the said order before the Central Administrative Tribunal, Jabalpur Bench.
The 917 Tribunal by its judgment dated February 14, 1991 allowed the application of S.K. Chattopadhyay and others and set aside the order dated February 20/25, 1987 giving ante dated seniority to the appellants.
We agree with the conclusions reached by the Tribunal though we do not appreciate the reasoning adopted by the Tribunal in reaching the said conclusions.
This Court has authoritatively laid down in Paluru 's case that Civil Appeal No. 441/81 was not correctly decided by this Court.
The appellants have through out, been basing their claim on the order dated February 2,1981 in Civil Appeal No. 441/81.
Once the base is knocked out by the judgment of this court in Paluru 's case the appellants are left with no ground to sustain the order dated February 20/25, 1987 by which they were given ante dated seniority.
Following the judgment of this Court in Paluru 's case and the reasoning therein we uphold the impugned judgment of the Central Administrative Tribunal, Jabalpur.
Mr. M.K. Ramamurthy, learned counsel for the appellants, has vehemently argued that the judgment dated April 4, 1983 by the Madhya Pradesh High Court in favour of the appellants having been approved by this Court in Palunt 's case the Tribunal had no jurisdiction to negate the same.
We do not agree with the learned counsel.
We have reproduced above the paragraph from the judgment in Paluru 's case wherein this Court has observed, "findings of the Madhya Pradesh High Court in its judgment dated 4th April, 1983 thus stand approved by this Court".
It is not disputed that the said "approval" by this Court was by dismissing the special leave petitions against the judgment of the Madhya Pradesh High Court.
There is no reasoned judgment/order by this Court approving the judgment of the Madhya Pradesh High Court.
It is not necessary for us to go into the question whether in a situation like this any court below could have reversed the judgment by review or otherwise, because in this case we are faced with different situation.
S.K. Chattopadhyay and others were not parties to the proceedings before the Madhya Pradesh High Court which ended by the dismissal of the special leave petitions by this Court on July 28, 1986.
Till that date no action adverse to them had been taken by the DG or any other authority.
It was incumbent on the appellants to have impleaded all the persons who were likely to be adversely affected in the event of appellants success in the writ petition before the Madhya Pradesh High Court.
Under the circumstances 918 even if it is assumed that the Madhya Pradesh High Court judgment had 'become final and could not have been reviewed by the High Court or the Tribunal, it became final only between the parties inter se.
The first circular was issued in the year 1962.
The appellants filed writ petitions in the Madhya Pradesh High Court twenty years thereafter seeking enforcement of the first circular.
The petitioners wanted the clock to be put back by two decades through the process of the Court.
All those persons who were promoted in accordance with the rules during that long period and were not parties before the Madhya Pradesh High Court cannot be made to suffer for no fault of theirs.
On the other hand, S.K. Chattopadhyay and others challenged the order dated February 20/25, 1987 which affected them adversely within the period of limitation before the Central Ad ministrative Tribunal.
In any case the judgment of this Court in Civil Appeal No. 441 of 1981 having been over ruled by Three Judge Bench of this Court in Paluru 's case, the appellants have neither the law nor the equity on their side.
The judgment of the Tribunal being in conformity with the law laid down by this Court in Paluru 's case, we see no ground to interfere with the same.
Before parting with this judgment we may mention that because of contradictory judgments of various courts and Central Administrative Tribunals in the country the seniority position of the members of the service all over the country, numbering about twenty thousand could not be crystallised over a period of two decades.
We have been informed by the Union of India that the Central Administrative Tribunals all over the country have, by and large, taken uniform view following the judgment of this Court in Paluru 's case and the seniority lists have been issued in conformity therewith.
It has been a long drawn out battle in the court corridors causing lot of expense and suffering to the members of the service.
We hope that this judgment has finally drawn the curtains over the con troversy.
The appeal, is therefore, dismissed.
No costs.
G.N. Appeal dismissed.

summary:
The Director General, Ordnance Factories (D.G.) issued a Circular dated 6.11.1962 to the effect that the Diploma holders who have been appointed as Supervisor Grade 'B ' (technical) or in equivalent grades, should on completion of one year 's satisfactory service be promoted the post of Supervisor Grade 'A ' (Tech.) and the Diploma holders who worked satisfactorily as Supervisor 'A ' (Tech.) or in equivalent grades for 2 years should be promoted as Chargeman.
Subsequently the D.G. issued another Circular dated 20.1.1966 according to which promotions were to be in accordance with normal rules,i.e.
on the basis of their listing by the relevant Departmental Promotion ' Committee and not merely on satisfactory completition of 2 years continuous service as Supervisor 'A ' Grade or equivalent grades.
In effect, the first Circular was withdrawn by the second Circular.
In 1973 some Supervisors Grade 'Al riled a Writ Petition before the High Court claiming benefit of the first circular.
Without going into the merits of the controvery, a Single Judge of the High Court dismissed the Writ Petition on the ground of delay.
On appeal, a Division Bench of the High Court dismissed the Writ Petition on merits.
On further appeal this Court directed that the cases of those appellants be considered for promo906 907 tion as Chargeman Gr.
II and they promoted them, unless they were found unfit, from the dates on which they ought to have been promoted.
(Virendra Kumar & Ors.
vs U.O.I, C.A. No. 441/1981 decided on 2.2.81).
Thereafter the present appellants riled Writ Petitions before the High Court praying for the same relief as was granted by this Court in Virendra Kumar 's case.
The High Court allowed the Writ Petitions.
The Special Leave Petitions filed by the Union of India against the Judgment came to be dismissed.
Consequently.
the D.G. issued an order giving antedated seniority to the appellants for the purposes of promotion.
The appellants were also given deemed dates of promotion to post of chargeman Gr.11 from the dates when they completed two years of service as Supervisor Gr. 'A ' and consequent seniority in the other higher grades.
This resulted in some employees who were senior to the appellants in the cadre of Chargeman Gr.
II and other higher grades becoming junior to the appellants.
These employees who were 'adversely affected by the order of the D.G. giving ante dated seniority to the appellants and were not impleaded as parties at any stage of the litigation, challenged the DG 's order before the Central Administrative Tribunal.
The Tribunal allowed the application and set aside the DG 's order giving ante dated seniority to the appellants.
Aggrieved by the Judgment of the Tribunal, the appellants preferred the present appeal.
Dismissing the appeal, this Court, HELD: 1.
This Court has authoritatively laid down in Paluru 's case that Civil Appeal No. 441/81 Virendra Kumar vs U.O.I, was not correctly decided.
The appellants have throughout been basing their claim on Virendra Kumar 's case.
Once the base is knocked out by the judgment of this Court in Paluru 's case the appellants are left with no ground to sustain the order dated February 20/25, 1987 issued by the D.G. by which they were given ante dated seniority.
[917 B C] 1.2.
Even if it is assumed that the High Court judgment had become final with the dismissal of the SLP against it, and could Rot have been reviewed by the High Court or the Tribunal, it became final only between the parties inter se.
The first circular was issued in the year 1962.
The appellants riled writ petitions in the High Court twenty years thereafter seeking enforcement of the first circular.
The petitioners wanted the clock to be put back by two decades through the process of the Court.
All those 908 persons who were promoted in accordance with the rules during that long period and were not parties before the High Court could not be made to suffer for no fault of theirs.
On the other hand some employees challenged the order dated February 20/25, 1987 which affected them adversely within the period of limitation before the Central Administrative Tribunal.
In any case the judgment of this Court in Virendra Kumar having been over ruled in Paluru 's case, the appellants have neither the law nor the equity on their side.
The judgment of the Tribunal being in conformity with the law laid down by this Court in Paluru 's case there is no ground to interfere with the same.
[918 A D] Paluru Ramkrishnaiah & Ors. etc.
vs Union of India & Anr., ; , followed.
Virendra Kumar & Ors.
vs Union of India & Ors.
, Civil Appeal No. 441/81 decided on 2.2.1981, referred to.


judgement:
Appeal Nos.
2919 20 of 1981.
From the Judgment and Order dated 15.9.1981 of the Calcutta High Court in Civil Rule No.3567 (W) of 1981.
section Murlidhar, Rathin Das and R.F. Nariman for the Appellant.
S.S. Ray, S.M. Jain, A.P. Dhamija, Sudhanshu Atreya, B.K. Jain, S.K., Jain and P.K. Mukherjee for the Respondents.
The Judgment of the Court was delivered by KASLIWAL, J.
Both the above appeals by grant of special leave are directed against the common order of the High Court dated 15.9.1981 as such the same are disposed of by one single order.
The respondent Messrs Singel Tea and Agricultural Industries Limited, a private limited company incorporated under the (in short 'The Company ') filed a writ petition under Article 226 of the Constitution in the High Court on 22.4.1981 challenging the order dated 16.4.1981 issued by the Collector, Darjeeling whereby possession of the tea garden known as M/s. Singell Tea Estate were taken over with effect from 16.4.1981.
In view of the fact that the West Bengal Tea Development Corporation Limited, a Government Company (in short 'The Corporation ') had been handed over the possession of the tea garden on 21.4.1981; the said Corporation was also impleaded as a party respondent.
The State of West Bengal enacted The West Bengal Estates Acquisi 882 tion Act, 1953 (hereinafter referred to as 'The Act ') to provide for the State acquisition of estates, of rights of intermediaries therein and of certain rights of raiyats and under raiyats and of the rights of certain other persons in lands comprised in estates.
The State Government also issued a notification under Section 4 of the Act vesting all estates and rights of every intermediary in the State free from all encumbrances.
This notification also covered the land comprised in the tea garden know as M/s. Singell Tea Estate.
The Revenue Officer, Kurseong, Darjeeling issued notices to the Company initiating proceedings for assessment of rent of the said tea garden.
The Company appeared in the said proceedings and contended that it was not an intermediary within the meaning of the Act and the provisions of the Act were not applicable to the said tea garden as the same was a freehold land and the Revenue Officer had not jurisdiction to assess the rent under Section 42(2) of the Act.
The Revenue Officer rejected the contentions of the Company and passed two orders fixing the rent at Rs.2,375.94 per year.
The Government being not satisfied with the quantum of rent determined by the Revenue Officer took further proceedings for the revision of the entries in the record of rights in respect of the tea garden and in those proceedings the Revenue Officer by order dated 22.8.1968 redetermined the rent at Rs.8,769.24 per year.
The Company aggrieved against the aforesaid order of the Revenue Officer preferred two appeals before the District Judge, Darjeeling acting as Tribunal under sub section (3) of Section 44 of the Act.
Both the appeals were dismissed in default.
The company filed two applications for restora tion of the appeals under Order 41 Rule 19 of the Code of Civil Procedure, but both the applications were dismissed by the Learned District Judge by his order dated 16.8.1975.
The Company then filed two applications under Section 115 of the Code of Civil Procedure read with Article 227 of the Constitution in the High Court challenging the aforesaid orders of the District Judge dated 16.8.1975.
A Division Bench of the High Court by its order dated 1.10.1975 granted interim stay of the operation of the order of the Revenue Officer dated 22.8.1968.
During the pendency of the aforesaid cases in the High Court, the Additional Deputy Commissioner of Darjeeling by his letter dated 20.6.1979 informed the Manager of Singell Tea Estate that inspite of repeated reminders, the Company had not executed the long term lease for 30 years on prepayment of the requisite number of instalments of rent and cesses.
883 The above mentioned letter of the Additional Deputy Commissioner, Darjeeling was received by the Company on 8.&1979 and was replied by the Solicitor of the Company by letter dated 13.8.1979.
In the reply, it was pointed out that the High Court had granted the stay order and as such requested the Additional Deputy Commissioner to stay his hands till the disposal of the said cases.
Thereafter, the Collector of Darjeeling served upon the Company a notice under Section 106 of the determining the tenancy of the Company in respect of the tea garden on the expiry of 14.4.1981.
The Company was requested to hand over vacant and peaceful possession of the tea garden to the Junior Land Reforms Officer or the Sub Divisional Land Reforms Officer of the area or the Executive Magistrate immediately on the expiry of 14.4.1981, failing which it was directed that the Company would be deemed a trespasser and would also be liable to pay mesne profits till the Company was evicted in due course of law.
The above notice was received by the Company on 15.11.1980.
In reply to the said notice under Section 106 of the , the Solicitor of the Company replied by letter dated 15.12.1980 agains pointing out the issuance of the stay orders by the High Court and requested the Collector of Darjeeling to stay his hands until further order from the High Court.
Thereafter, the Collector, Darjeeling issued the order dated 16.4.1981 which reads as under: "To : The Proprietor, M/s. Singella Tea Estate, P.O. Kurseong, District : Darjeeling.
I do hereby take over the possession of your tea garden known as Singel Tea Estate with effect from 16th April, 1981 as you have failed to execute Long Term Lease/Summary Lease, by paying the government dues by 14th April 1981 as required in the notice served upon you section 106 of .
Sd/ Illegible Collector, Darjeeling.
" According to the Company, by the impugned order the Collector intimated the Company that he would take possession of the estate.
But the language of the order shows as if the Collector had taken possession of the tea estate on 16.4.1981 and he recorded the fact of taking possession 884 of the tea garden in the said order.
According to the Company, the said order did not mention as to how and in what manner the possession of the tea garden was taken by the Collector.
The stand of the State Government in this regard was that possession of the tea garden was taken by the Collector on 16.4.1981, as stated in the order.
The further case of the Government was that the possession of the tea garden was handed over to the Corporation on 21.4.1981.
As already stated above, the Corporation was subsequently added as a party and an affidavit was filed by Shri Aninda Mohan Bose, the Managing Director of the Corporation stating therein that possession of the tea garden was taken by one Shri R.B. Subba, Circle Inspector (Land Reforms) Kurseong, L.R. Circle on behalf of the Government on 21.4.1981 and handed over to the Corporation.
The High Court from the above circumstances concluded that the statement made by the Collector in the impugned order dated 16.4.1981 about his taking over the possession of the tea garden on that date was incorrect.
The High Court, however, observed that it was not disputed that tea garden was now in the possession of the West Bengal Tea Development Corporation Limited since 21.4.1981.
The High Court examined the question whether the tenancy of the Company in respect of the tea garden could be terminated and the possession of the same could be taken over by the Government.
The High Court in the circumstances mentioned above held that the Collector of Darjeeling was fully aware of the stay order dated 1.10.1975 passed by tile High Court against the order of the Revenue Officer dated 22.8.1968 fixing the rent at Rs.8,769.24 per year before issuing the notice under Section 106 of the as well as on the date of issuing the impugned order dated 16.4.1981.
According to the High Court, there was no question of granting a lease so long as the rent was not determined under Section 42 (2) of the Act.
As the order fixing the rent was stayed by the High Court, the question of granting on execution of the lease by the Company could not arise.
Thus, the action of the Collector in taking possession of the tea garden by the impugned order dated 16.4.1981 on the ground that the Company had failed to execute a long terms lease or summary lease by paying the Government dues by 14.4.1981 as required in the notice given under Section 106 of the , was not correct.
The High Court further held that the Collector did not make any order of summary settlement as required by paragraph 1 of Schedule F of The West Bengal Estates Acquisition Rules, 1954.
Thus, the Collector failed to 885 perform his statutory duty by not granting a summary settlement specifying the terms and conditions of the tenancy and violated the provisions of the Rules.
As regards the contention on behalf of the State Government that the Company should have paid at least the rent at the rate of Rs.2,375.94 per year initially determined by the Revenue Officer under Section 42 (2) of the Act, the High Court rejected the same on the ground that the Government had not accepted the same and had not made any demand for payment of rent at that rate.
The High Court took the view that the rent was fixed for the second time by order dated 22.8.1968 but the demand for payment of rent was made after a long time in 1979 and obviously such demand would be for the enhanced rent as fixed for the second time and the same having been stayed by the High Court, it was doubtful whether the tenancy could be terminated and possession could be recovered on the ground of non payment of rent.
The High Court, as such, held that the Collector had taken the law into his own hands and took over possession otherwise than in accordance with law and such action on the part of the responsible officer like the Collector cannot be approved.
As a result of the above findings, the High Court allowed the writ petition and issued a writ of mandamus commanding the State Government and other authorities to deliver the possession of the tea garden to the Company within a month from the date of the order.
Both the State of West Bengal as well as the Corporation have come in appeal challenging the order of the High Court.
We have heard learned counsel for the parties and have persued the record.
The two revisions filed under Section 115 of the Code of Civil Procedure read with Article 227 of the Constitution challenging the two orders passed by the District Judge dismissing the two applications filed under Order 41 Rule 19 of the Code of Civil Procedure for restoration of the two appeals filed against the determination of the rent for the second time at the rate of Rs.8,769.24 per year are still pending before the Calcutta High Court.
This Court on 13.12.1991 had passed the following order: "The Calcutta High Court is requested to dispose of finally within the three months from today Civil Rule Nos.3741 42 of 1975.
These appeals to be on board on 7th April, 1992.
The. order communicated to the Calcutta High Court forthwith." 886 However, inspite of the above order, we were informed by the learned counsel for the parties that the Civil Rule Nos.3741 42 of 1975 have not been disposed of by the High Court.
As the above mentioned two appeals directed against the order of the High Court dated 15.9.1981 are pending in this Court for the last more than 11 years, we do not consider it proper to further wait for the decision of the Civil Rule Nos.3741 42 of 1975 pending in the High Court and we propose to decide these appeals.
The West Bengal Estates Acquisition Act, 1953 abolished the intermediaries and upon the due publication of a notification under Section 4 of the Act, the estates and the rights of intermediaries in the estates vested in the State free from all intermediaries under Section 5 of the Act.
Section 6 provides for retaining certain lands by the intermediaries.
Section 42 provides for retaining possession of any land subject to the liability to pay rent as determined by the Revenue Officer.
Sub section (2) of Section 42 provides that when an intermediary is entitled to retain possession of any land comprised in a tea garden under Clause (f) of sub section (1) as read with sub section (3) of Section 6 of the Act, the Revenue Officer shall determine the rent payable in respect of such land in the manner provided in the said sub section.
In the present case, the Revenue Officer had initially determined the rent at the rate of Rs.2,375.94 per year and on the representation of the State Government the same was refixed at Rs.8,769.24 per year.
So far as the Company is concerned, it had taken a clear stand before the Revenue Officer that it was not an intermediary nor the provisions of the Act applied in the case as the land was claimed as freehold.
The admitted facts of the case are that the Revenue Officer had initially determined the rent at the rate of Rs.2,375.94 per year, but the same was not accepted by the Government and on a representation made by the State Government, the Revenue Officer had refixed the rent at Rs.8,769.24 per year by order dated 22.8.1968.
The Company had challenged the rent refixed at Rs.8,769.24 and the High Court in Civil Rule Nos.
3741 42 of 1975 had stayed the order of the Revenue Officer dated 22.8.1968 fixing the rent at the rate of Rs.8,769.24 in view these circumstances, it was necessary on the part of the Collector to have passed an order of summary settlement as contemplated under Form I Schedule F of The West Bengal Estates Acquisition Rules, 1954.
The High Court in these circumstances was right in holding that the Collector had no jurisdiction 887 to terminate the tenancy on the ground of non payment of rent or for not executing a lease deed inasmuch as the Collector had not mentioned in the notice terminating the tenancy under Section 106 of the that he was prepared to accept the rent at the rate of Rs.2,375.94 per year as determined initially by the Revenue Officer.
We agree with the reasoning and conclusion arrived at by the High Court.
Now, taking in the view the entire facts and circumstances of the case and in order to do complete justice between the parties, we deem it proper that the respondent Company should be given the possession of the tea garden provided the Company pays the entire areas of rent from 27.7.1965 to 21.4.1981, the date when the Company was dispossessed calculated at the rate of Rs.8,769.24 per year after adjusting any amount already paid within three months from today.
There would be no necessity for the Collector to make any order of summary settlement and a long term lease shall be executed as contemplated under sub section (3) of Section 6 of the Act.
As soon as the arrears of rent as mentioned above are paid by the Company, and a lease deed is executed, the Company shall be handed over the possession of the tea garden.
In case, any increase in the amount of rent is permissible under the law due to lapse of time, the State Government would be free to take the same into consideration while granting the long term lease.
The learned counsel appearing for the respondent Company had not objected for determining the arrears of the rent at the rate of Rs.8,769.24 per year, to put an end of this litigation.
These appeals are disposed of in the manner indicated above.
In the facts and circumstances of the case, we make no order as to costs.
G.N. Appeals disposed of.

dataset_name: IN-Abs

summary:
The appellant State issued a notification under section 4 of the West Bengal Estates Acquisition Act, 1953 covering the land comprised in the tea garden of the respondent company.
The Revenue Officer issued notices to the respondent company initiating proceedings for assessment of rent.
The Company objected stating that it was not an intermediary within the meaning of the Act and since its tea estate comprised of free hold land the Revenue Officer had no jurisdiction to assess the rent under Section 42(2) of the Act.
The Revenue Officer rejected the contention and fixed the rent at Rs.2,375.94 per year.
On revision preferred by the State, the Revenue Officer determined the rent at Rs.8,765.24 per year.
The Company preferred appeals before the Tribunal.
The appeals were dismissed in default and the restoration applications were also rejected.
Thereafter, the Company preferred applications before the High Court under Section 115 CPC read with Article 227 of the Constitution for restoration of the two appeals, and obtained stay of the operation of the Revenue Officer 's order.
During the pendency of the cases, the Additional Deputy Commissioner informed the respondent that inspite of the repeated reminders the company had not executed the long term lease for 30 years on prepayment of the requisite number of instalments or rent and cess.
The respondent company replied pointing out that the High Court had granted the stay order and therefore the matter stood stayed till the disposal of the said cases.
Thereafter, the Collector served upon the Company, a notice under section 106 of the Transfer of Property Act, 880 1882 determining the tenancy of the company In respect of the tea garden on the expiry of the specified date.
The company was required to hand over the vacant and peaceful possession of the tea garden.
In reply to the said notice, the company stated that in view of the stay order granted by the High Court no further proceedings be taken.
Thereafter the Collector took over the possession of the tea garden.
The applications before the High Court were still pending.
However, aggrieved by the order of the Collector taking over its tea garden, the Respondent preferred a Writ Petition before the High Court Allowing the writ petition, the High Court directed the appellant State Government and other authorities to deliver the possession of the tea garden to the Company within a month.
Aggrieved by the High Court 's order, the State as also the West Bengal Tea Development Corporation to whom the possession of the tea garden is transferred by the State, preferred appeals, before this Court.
Disposing of the appeals, this Court, HELD:1.
The Revenue Officer had initially determined the rent at the rate of Rs.2,371.94 per year, but the same was not accepted by the Government and on a representation made by the State Government, the Revenue Officer had refixed the rent at Rs.8,769.24 per year by order dated 22.8.1968.
The Company had challenged the rent refixed at Rs. 8.769.24 and the High Court had stayed the order of the Revenue Officer fixing the rent at the rate of Rs.8,769.24.
In view of these circumstances, it was necessary on the part of the Collector to have passed an order of summary settlement as contemplated under Form I Schedule F of the West Bengal Estates Acquisition Rules, 1954.
The High Court was, therefore, right in holding that the Collector had no jurisdiction to terminate the tenancy on the ground of non payment of rent for not executing a lease deed inasmuch as the Collector had not mentioned in the notice terminating the tenancy under Section 106 of the Transfer of Property Act, that he was prepared to accept the rent at the rate of Rs. 2,375.94 per year as determined initially by the Revenue Officer.
[886 F H; 887 A,B] 2.In order to do complete justice between the parties, it is proper that the respondent Company should be given the prosession of the tea garden provided the Company pays the entire arrears of rent from 27.7.1965to 21.4.1981, the date when the Company was dispossessed, 881 calculated at the rate of Rs. 8,769.24 per year after adjusting any amount already paid, within three months.
There would be no necessity for the Collector to make any order of summary settlement and a long term lease should be executed as contemplated under sub section (3) of Section 6 of the West Bengal Estates Acquisition Act, 1953.
As soon as the arrears of rent are paid by the Company and a lease deed is executed, the Company should be handed over the possession of the tea garden.
In case any increase in the amount of rent is permissible under the law due to lapse of time, the State Government would be free to take the same into consideration while granting the long term lease.
[887 B D]


judgement:
Appeal No. 298 of 1955.
Appeal from the judgment and order dated April 28, 1953, of the Patna High Court in Appeal from Original Order No. 90 of 1949, arising out of the judgment and order dated January 25, 1949, of the Sub Judge, Purnea, in Misc.
Case No. 54 of 1947.
Sir lqbal Ahmad, section N. Andley, J. B. Dadachanji and Rameshwar Nath, for the appellant.
366 M.C. Setalvad, Attorney General for India and R. C. Prasad, for the respondent.
March 16.
The Judgment of the Court was delivered by SARKAR, J.
This appeal arises out of a proceeding in execution of an adjudication made under the provisions of the United Provinces Encumbered Estates Act, 1934 (U. P. XXV of 1934), an Act passed by the legislature of the United Provinces, now called the Uttar Pradesh.
The questions that arise in this appeal largely turn on the provisions of that Act and they have therefore to be referred to.
The Act was intended to give relief to the proprietors of certain landed properties in the United Provinces.
Section 4 of the Act enabled a proprietor of such landed properties to make an application in writing to the Collector of the District in which any of his lands is situate, stating the amount of his debts and asking for the application of the Act to him.
Upon such an application being made, the Collector is to make an order under section 6 forwarding it to a Special Judge appointed under the Act who, under section 3 is any civil judicial officer appointed for a local area, to exercise the powers conferred and to perform the duties imposed, by the Act.
Section 7 of the Act provides that upon the making of an order by the Collector under section 6, subject to certain exceptions which it is not necessary to enumerate, all proceedings pending in the courts in the United Provinces in respect of a debt due by the applicant shall be stayed and all execution processes issued against him by such courts shall become null and void and no fresh process in execution shall be issued against him, nor any fresh suit or other proceeding instituted.
The Special Judge after he has received the application sent to him by the Collector is required by section 8 to call upon the applicant to submit a written statement verified in the manner of a plaint, setting out full particulars of his debts, the names and addresses of his creditors and the nature and extent of his proprietary rights in land as also of all his properties which are liable to attachment under section 60 of 367 the Code of Civil Procedure.
Under section 9 the Special Judge has then to publish a notice calling upon persons having claims against the applicant to submit the same within a time specified.
Section 10 states that the claimant shall give full particulars of his claim and of the applicant 's properties.
Section 11 provides that the Special Judge will publish a further notice specifying the properties mentioned by the applicant as belonging to him and any person wishing to make a claim to any such property has to do so within a certain period.
The same section gives power to the Special Judge to decide the claims made to the properties and provides that the decision made by him is to be deemed to be a decree of a civil court of competent jurisdiction.
Section 14 lays down that the Special Judge will inquire into the claims submitted by the creditors against the applicant and decide the questions in issue on the same principles as those on which a court of law would have decided them, but he has the power to reduce the interest due and to give relief to the applicant in respect of such claims under certain specified United Provinces Acts.
Sub section (7) of section 14 provides that if upon enquiry the Special Judge finds that any amount is due to any claimant he shall pass a simple money decree for such amount together with costs and interest and " such decree shall be deemed to be a decree of a civil court of competent jurisdiction " but it shall not be executable within the United Provinces except under the provisions of the Act.
The next section to be referred to is section 19 which requires the Special Judge to send the decrees granted under section 14(7) to the Collector for execution in accordance with the provisions of Chapter V of the Act and to inform him of the nature and extent of the property which he has found to be liable to satisfy the debts of the applicant.
Then come the provisions as to execution contained in Chapter V.
The sections in this Chapter provide that the Collector will himself and without being required to be moved for the purpose by any person, proceed to execute the decree against the properties of the applicant within the United Provinces by the various methods indicated, and for 368 realising the value of the applicant 's properties the Col lector shall have all the powers of a civil court for the execution of a decree.
With regard to the properties of the applicant outside the United Provinces, the Act could not provide for execution.
To cover such cases it was enacted by section 24(3) that for the purpose of execution against property outside the United Provinces the decrees passed by the Special Judge would be deemed to be decrees in favour of the Collector.
These are all the provisions of the Act that need be referred to for the purposes of this case.
The facts may now be stated.
The respondent was the proprietor of landed properties in the United Provinces and was entitled to claim relief under the Act.
He became heavily encumbered in debts.
It is not necessary to go into his financial embarrassment in great detail and it will be enough to say that in 1926 and 1927 he had created several mortgages on his properties in favour of the Allahabad Bank, the Banaras Bank and a person called Kalia, for very large sums.
In 1929, the Banaras Bank filed a suit against the respondent in the Court of the Additional Sub Judge, Banaras, in the United Provinces for enforcement of its mortgage making the other creditors of the respondent named above parties to the suit.
A decree was passed in that suit giving the creditors priority in a certain order.
The Allahabad Bank not being satisfied with that order of priority, filed an appeal in the High Court at Allahabad which was decided in its favour.
While the appeal was pending, the respondent applied to the Collector of Banares for relief under the Act.
The procedure laid down in the Act as earlier summarised was duly followed and on March 21, 1940, the Special fudge of Banares to whom the application had been forwarded by the Collector, passed three money decrees in favour of the three creditors of the respondent mentioned above in a certain order of priority with which we shall not be concerned in this case.
The total amount of such decrees came nearly to rupees nine lacs.
He then sent the decrees to the Collector of Banaras for execution as required by the Act.
The execution of the decrees 369 was thereafter commenced by the Additional Collector, Banaras under the provisions of the Act against the properties in the United Provinces.
The respondent owns an estate in the district of Purnea in Bihar, called the Semapur estate.
Under section 24(3) of the Act earlier mentioned, the decrees passed by the Special Judge are to be deemed to be decrees in favour of the Collector for the purpose of execution against the Semapur estate.
The Additional Collector, Banaras, applied to the Additional Civil Judge, Banaras, for transmission of the said decrees to the Court of the Subordinate Judge, Purnea for execution and an order for transmission of the decrees to the Court at Purnea was accordingly made by that Judge on January 4, 1947.
Thereafter on March 17, 1947, the Additional Collector, Banaras, applied to the Subordinate Judge, Purnea, as the transferee Court to execute the decrees by attachment and sale of the Semapur estate.
The Subordinate Judge thereupon made an order directing execution to issue as sought.
The respondent preferred an appeal to the High Court at Patna from this order of the Subordinate Judge, Purnea and his appeal was allowed with the result that the execution of the decrees against the Semapur estate failed.
The present appeal is by the Additional Collector, Banaras against the order of the High Court.
The first question that arises in this appeal is whether the Subordinate Judge, Purnea, bad jurisdiction to order execution of the decree transferred to him.
The High Court held that he did not have that jurisdiction.
The matter was put in this way.
The decree was not a decree under the Code of Civil Procedure.
It was only to be deemed as such because of section 14(7) of the Act.
The Act was an Act of the United Provinces legislature which could not pass a legislation having effect outside the United Provinces.
The operation of section 14(7) of the Act had therefore to be confined within the borders of the United Provinces.
The Subordinate Judge, Purnea could not apply that section in Bihar and treat the decree as a decree 47 370 under the Code.
If he could not do so he could not order execution of the decree.
If he were permitted so to apply the Act, then an Act of the legislature of the United Provinces would be indirectly affecting property outside the United Provinces which it could not directly do.
The Act could be applied in Bihar only by giving it an extra territorial operation.
This the law did not allow.
So the decree could not be executed in Purnea.
We think that this argument is fallacious.
No question of any extra territorial application of the United Provinces Act either directly or indirectly, arises in this case.
It is clear that by virtue of section 14(7) of the Act, a decree of the Special Judge under the Act is within the United Provinces, a decree for all purposes of the Code.
It could therefore be transferred decree under section 39 of the Code of Civil Procedure to a court outside the United Provinces, for execution.
Now when a decree is transferred, it is the duty of the transferee court to execute it by all methods provided by the Code of Civil Procedure.
But it is said that the transferee court must be satisfied that it is a decree under the Code of Civil Procedure before it can order execution under that Code.
How then is the transferee court to decide that ? It has before it a decree passed not by itself but by another ,court.
It has therefore to satisfy itself that the decree was one which, for that court, was a decree passed under the Code.
In order to do that it is asked to apply the United Provinces Act to the decree passed within the United Provinces.
How can it be said that if it so applies the United Provinces Act it is giving it an extra territorial operation ? It is doing nothing of the kind.
It is applying an Act of the United Provinces to something which happened within the territories of those Provinces; it is applying an United Provinces Act to a matter within the competence of the legislature of the United Provinces to legislate upon.
No doubt a court outside the United Provinces is applying a statute of those Provinces, but that does not amount to giving extra territorial operation to that statute.
If the statute is being so applied 371 to one of its legitimate objects, it is not being given any extra territorial operation at all.
We further find it difficult to appreciate how the application by the Subordinate Judge of Purnea of the United Provinces Act to the decree of the Special Judge, Banaras, sent to him for execution, results in the United Provinces Act affecting property outside the United Provinces.
The only result of such application is to remove the objection that that decree is not a decree of a court in the United Provinces passed under the Code; the Act is not thereby made to affect property outside the United Provinces.
Of course, if that decree is a decree under the Code it can be executed against any property outside the United Provinces.
That however is not the result of the United Provinces Act but of the Code of Civil Procedure which is a central legislation and applies to Bihar also.
The High Court was therefore wrong in thinking that the Subordinate Judge, Purnea, had no jurisdiction to execute the decree passed under the Act within the United Provinces and sent to him for execution.
It was then contended that the order of transfer of the decree was invalid because under section 39 of the Code such an order could be made only on the application of the decree holder and in the present case it had not been made on his application.
His point was this.
Under section 24(3) of the Act, a decree of the Special Judge is to be deemed to be a decree in favour of the Collector for the purpose of execution against property outside the United Provinces.
Therefore, in the present case it was the Collector, Banaras, who was the decree holder and he alone could apply for the transfer of the decree.
Actually however the order for the transfer had been made in this case on the application of the Additional Collector, Banaras.
So it was said the order was invalid.
Now this argument depends upon the Collector and the Additional Collector being different persons.
It is clear however that they are not.
That appears from sections 14 and 14A of the United Provinces Land Revenue Act, 1901, to which our attention was drawn.
Section 14 gives power to the Government to appoint a Collector for discharging the 372 duties mentioned in the Act or any other law for the time being in force.
Section 14A(1) gives power to the Government to appoint an Additional Collector.
Sub section (3) of section 14A provides that the " Additional Collector shall exercise such powers and perform such duties of a Collector" as the Government may direct.
The Additional Collector therefore exercises such of the powers and discharges such of the functions of the Collector, as the Government directs him to do.
We have before us a document containing such an order by which the work of sale and execution which under the Encumbered Estates Act had to be done by a Collector, had been entrusted to the Additional Collector.
It follows that for the purposes of execution and sale under the Act, the Additional Collector is to be deemed to be the Collector as he exercises the latter 's powers in this regard.
The Additional Collection was hence quite competent to apply for the transfer of the decree.
The third point against the validity of the order of the learned Subordinate Judge was that under section 39 of the Code the decree could be transferred only by the Court which passed it.
It was said that in the present case it is only by virtue of section 14 of the Act that the decision of the Special Judge is deemed to be a decree ; that since it was his decision, he must be deemed to have passed it.
It was then pointed out that the order for the transfer of the decree had in fact been made by the Additional Civil Judge, Banaras, and not by the Special Judge, Banaras, and hence that order was of no effect.
This is an argument with which we are not much impressed.
It has been pointed out to us that the powers of a special Judge under the Act were conferred on the Court of the Additional Subordinate Judge, Banaras, by the United Provinces Government 's Revenue Department notification No. 767 Rev.
published in the United Provinces Gazette of the 12th October, 1935.
The Additional Subordinate Judge later came to be called the Additional Civil Judge.
It is therefore the same court which exercises the powers of an Additional Civil Judge as also those of a Special Judge under the Act.
We find 373 no difficulty in treating the order of transfer as having been made by the Special Judge.
The fact that the order purported to be made by the Additional Civil Judge was a matter of mere irregularity and cannot make it invalid.
Nor do we find any lack of power in the Special Judge to order a transfer of the I decrees.
The Act provides that his adjudication would be treated as a decree of a civil court of competent jurisdiction.
The execution of such a decree outside the United Provinces is also clearly contemplated by section 24(3).
We have earlier held that such execution is permissible in law.
That being so, in order to give effect to the provisions of the Act it has to be held that the Special Judge must be deemed to be a court which passed the decree within the meaning of section 39 of the Code of Civil Procedure.
Nor does there seem to be any objection to think that the Special Judge is a civil court.
From the provisions of the Act earlier set out there is no doubt that he adjudicates upon rights of the parties and acts in the same way as any other civil court would do.
Indeed, apart from the fact that the proceedings before him do not commence by the filing of a plaint, we find no distinction between him and a court as ordinarily understood.
The order of transfer of the decree is hence, in our view, clearly a good order.
Lastly, it was said that the decree was barred by limitation long before the order for its transfer was made.
It was contended that article 182 of the Limitation Act governed the case, and the application for its execution had been made beyond the time limited.
The question is, does the article apply ? The High Court held that that article had no application to the present case and that no question of limitation arose " for the execution proceeding in Purnea Court is merely a continuation of the execution proceeding pending before the Collector of Banares ".
In our opinion, the High Court was right in the view that it took.
It is quite clear that if the application for execution with which we are concerned was made in a pending execution proceeding, notion of the application of article 182 arises.
It = long been 374 recognised by the courts in our country that a right to continue a proceeding which is pending is a right which arises from day to day and no question of any bar of limitation with regard to the enforcement of such a right arises: See Kedar Nath Dutt vs Harra Chand Dutt (1) Subba Chariar vs Muthuveeran Pillai (2).
The question then is, was the application for execution which has resulted in the order under appeal, one for continuing a pending execution proceeding ? It is not disputed that all along since the decree was sent by the Special Judge to the Collector for execution and before that date the decree was not executable it has continuously been in execution under the provisions of the Act by the Additional Collector, Banaras, and that such execution proceeding was pending on the date of the present application for execution.
The question thus is, whether the execution proceeding started in the Court of the Subordinate Judge, Purnea, was a continuation of the execution proceeding by the Additional Collector, Banaras.
We think it was.
We have to remember that section 14(7) of the Act which said that an adjudication of the special Judge was to be deemed to be a decree also provided that that decree would not be executable within the United Provinces except under the provisions of the Act.
We have also to remember that the Act provided that as against the properties within the United Provinces the decree could only be executed by the Collector on his own by the various methods provided.
We may also point out that section 24(4) provides that for the purpose of such execution the Collector is to have all the powers of a civil court for the execution of a decree.
It is therefore clear that the only mode of execution of the decree within the United Provinces contemplated by the Act is the execution by the Collector.
Within the United Provinces the execution of the decree by the Collector would be deemed to be an execution under the Civil Procedure Code.
The execution by the Collector is execution of what is a decree within the Code.
When the decree is executed outside the United Provinces, where, as already stated, it can be legally (1) Cal, 420.
(2) Mad.
375 executed, the amount realised by the execution by the Collector has to be taken into account.
When the Subordinate Judge, Purnea, has to decide the question , whether the application for execution made to him is in continuance of an existing execution proceeding, he has to recognise the proceeding before the Additional Collector, Banares, as a proceeding in execution under the Code for it is so under the Act.
In doing this, for the reasons earlier mentioned, he would not be giving any extra territorial operation to the Act.
It seems to us therefore that the execution of the decree by the Collector must be deemed to be execution of a decree for all purposes and therefore an application made to the Subordinate Judge, Purnea, for execution of the same decree while an execution proceeding was pending before the Collector, must be a continuation of the execution last mentioned.
No question of limitation can arise in regard to such an application.
We think therefore that this appeal must succeed.
We set aside the order of the High Court and restore the order of the Subordinate Judge, Purnea.
The respondent will pay the costs of the appellant in this Court and in the High Court.
Appeal allowed.

summary:
The respondent, who owned landed properties at Banaras in Uttar Pradesh and at Purnea in Bihar, was heavily indebted and applied to the Collector, Banaras under section 4 of the U. P. Encumbered Estates Act, 1934, for, liquidation of his debts.
The Collector, acting under section 6, forwarded the application to the Special judge, appointed under the Act who on March 21, 1940, passed after the enquiry directed by the Act three money decrees in favour of three creditors of the respondent and forwarded them to the Collector for execution.
Section 14(7) of the Act provided that such decrees were to be deemed to be decrees of a civil Court 365 of competent jurisdiction.
Section 24(3) of the Act provided that for purposes of execution against property outside U. P. such decrees were to be deemed to be in favour of the Collector.
The execution of the decrees was commenced by the Additional ' Collector, Banaras against the respondent 's properties in U. P. Thereafter, the Additional Collector applied to the Additional Civil judge, Banaras, and on January 4, 1947, got the said decrees transferred to the Subordinate judge, Purnea and on March 17, 1947, he applied to the Subordinate Judge for execution of the decrees by attachment and sale of the respondents properties at Purnea.
The Subordinate judge made an order directing execution to issue, but, on appeal, the High Court set aside the order on the ground that the Subordinate Judge had no jurisdiction to entertain the execution application.
Held, that the Subordinate judge Purnea had jurisdiction to execute the decrees.
By virtue of section 14(7) of the Act a decree of the Special judge was, within U. P., a decree for all purposes of the Code of Civil Procedure and could properly be transferred under section 39 Of the Code for execution to a Court outside U. P.
No question of extra territorial operation of the Act arose in the application of section 14(7) to the decrees as the Purnea Court was merely applying the U. P. Act to decrees passed in U. P.
For the purposes of execution and sale the Additional Collector was to be deemed to be the Collector as he exercised the Collector 's powers in this regard.
As such the applications for transfer and execution of the decree were properly made by the Additional Collector.
It was the same Court which exercised the powers of the Additional Civil Judge as also those of the Special judge.
The order of transfer of the decree made by the Additional Civil judge could be treated as having been made by the Special judge.
As such it was made by the same Court which passed the decrees and was a good order under section 39 of the Code.
The application for execution before the Subordinate judge, Purnea was made while execution proceedings in respect of the same decrees were pending before the Additional Collector, Banaras and was a continuation of the same.
No question of limitation could arise in respect of such an application.


judgement:
Appeal No. 228 (NT) of 1987.
From the Judgment and Order dated 8.4.1982 of the Karnataka High Court in S.T.R.P.No. 100/81.
M. Veerappa and K.H. Nobin Singh for the Appellant.
The judgment of the Court was delivered by KULDIPSINGH,J.
The question for consideration in this appeal is whether the mandate, under Section 20 (3) of the Karnataka Sales Tax Act, 1957 (the Act), to pay the undisputed tax before the appeal is entertained, is also applicable to the additional tax payable under Section 6B of the Act.
In other words whether it is obligatory under the Act to deposit the tax and the additional tax before the appeal is entertained.
The respondent assessee challenged the best judgment assess ment made against him for the year 1972 73 before the First Appellate Authority which was dismissed in limine on the ground that the respondent failed to pay the tax "not disputed in appeal".
The second appeal filed by the assessee before the Karnataka Appellate Tribunal was also dismissed.
On a revision petition under the Act the Karnataka High Court reversed the findings of the authorities below on the ground that unpaid "not disputed ' tax was the additional tax which was different than the tax envisaged under Section 20 (3) of the Act.
The High Court allowed the revision petition of the assessee and remanded 83 the matter to the appellate authority to dispose of the appeal in accordance with law.
This appeal by way of special leave against the judgment of the High Court is by the State of Karnataka.
Before the appellate authority it was the admitted case of the parties that no part of the undisputed tax levied under Section 5 (1) of the Act had remained unpaid.
It was only the undisputed additional levy under Section 6B of the Act which had not been paid.
Section 20 (1) of the Act confers a right of appeal.
Sub section 2 of Section 20 refers to the period of limitation.
Sub Section 3 (A) of section 20 is as under: "No appeal against an order of assessment shall be entertained by the appellate authority unless it is accompanied by satisfactory proof of the payment of the tax and penalty not disputed in the appeal." The High court on the interpretation of various provisions of the Act came to the conclusion that the additional tax under Section 613 is a levy distinct from the impost under section 5 (1) of the Act.
The High Court thus came to the conclusion that the nonpayment of the additional tax would not bar the entertainment of the appeal under the Act.
The findings of the High Court are based on the following reasoning: "Though the tax under section 6B is and impost of a similar nature, it is a levy distinct from the impost under Section 5(1) or under Section 6.
This is the clear outcome of the scheme of Section 6B and the effect of Section 6B(2) of the Act.
Section 6B(2) by providing for the application of the provisions of the 'Act ' to the tax under Section 6B as they apply to the sales or purchase tax under the Act, recognises the distinction between the additional tax on the one hand and the other imposts under the 'Act ' on the other. .
Section 20(1) creates and confers a right of appeal.
Sub Section (3) of Section 20 seeks to restrict that right and subject it to certain conditions.
It appears us 84 that the "tax" in Section 20 (3) on the payment of which the right of appeal is mad e dependent should receive a construction which would advance that right and one which would not make that right dependent upon or subject to payment of a "tax" which is distinct from the tax constituting the subject matter of the appeal. . .
In the present case, the appeal is one directed against the main impost and no part of the assessment relating to the additional tax, is the subject matter of the appeal.
That being so, the view that non payment of the additional tax would bar the entertainment of the appeal is not unjustified.
" We are not inclined to agree with the view taken by the High Court, Section 6B of the Act as it stood at the relevant time reads as under: "6 B. Levy of additional tax.
(1) There shall be levied and collected from every dealer liable to pay tax under section 5 or under section 6 (and from every dealer liable to pay tax under Section 25 B) an additional tax at the rate of ten paise in the rupee on the sales tax or purchase tax or both payable by such dealer; Provided that in respect of the sale or purchase of any of the declared goods mentioned in the Fourth Schedule, the tax together with the additional tax shall not exceed four percent of the sale or purchase price thereof.
(2)The provisions of this Act and the rules made thereunder including those relating to refund or exemption from tax shall, so far as may be, apply in relation to the levy, assessment and collection of the additional sales tax or purchase tax or both, as they apply in relation to the levy assessment and collection of sales tax or purchase tax under this Act.
" 85 It is obvious that the additional tax is leviable at the rate of ten paise in the rupee on the sales tax or purchase tax or both, payable by such dealer.
The additional tax is computed with reference to the tax payable by the dealer.
When once the assessing authority determines the sales tax or purchase tax under the Act the additional tax is levied automatically and becomes part and parcel of the assessment order.
The expression "tax" has been defined to mean a tax leviable under the provisions of the Act and as such includes the additional tax levied under section 6B of the Act.
When Section 20(3) talks of "payment of the tax and penalty not disputed in the appeal" it obviously includes the additional tax.
On the plain language of Section 20(3) of the Act it is not possible to make any distinction between the tax and the addition tax and the only conclusion which can be drawn is that the undisputed "tax" which includes additional tax has to be deposited before the appeal is entertained.
The fact that the quantum of the additional tax is determined with reference to the sales tax/purchase tax impost would not alter its character.
The additional tax is nothing but an enhancement in the rate of the sales tax/purchase tax under the Act.
As soon as the assessing authority determines the levy of sales tax/purchase tax the additional tax under Section 6B become part of the assessment order.
Similarly if the main impost under Section 5 (1) is successfully challenged, the reasoning sustaining the challenge would also ipso facto affect the validity of the additional impost under Section 6B of the Act.
We are, therefore, of the view that the High court was not justified in holding that additional tax under Section 6B was not a tax for the purposes of Section 20 (3) of the Act.
We allow the appeal , set aside the judgment of the High court and dismiss the revision petition filed by the assessee before the High Court.
No costs.
U.R. Appeal allowed.

summary:
The respondent assessee challenged the best judgment assess ment for the %,ear 1972 73.
The First Appellate Authority dismissed it its limine on the ground that the respondent had failed to pay the tax " not disputed In appeal".
A second appeal was dismissed by the Karnataka Appellate Tribunal.
The High Court allowed the revision petition of the assessee on the ground that the additional tax payable under section 6B was distinct from the tax in S.20 (3) on the payment of which the right of appeal is made dependent.
In the appeal by the State to this Court the question was whether the mandate unders.
20(3) to pay the undisputed tax before the appeal is entertained is also applicable to additional tax payable under s.6B of the Act.
Allowing the appeal, this Court, HELD: 1.
The expression 'tax ' has been defined to mean a tax leviable under the provisions of the Act and as such includes the additional tax levied under section 6B of the Act.
When Section 20 (3) talks of "payment of the tax and penalty not disputed in the appeal" it obviously includes the additional tax.
(85 B) On the plain language of section 20 (3), the only conclusion which can he drawn is that the undisputed 'tax ' which includes additional tax has to he deposited before the appeal is entertained.
(85 C) 82 2.
The fact that the quantum in of the additional tax is determined with reference to the sales tax, purchase tax imposts would not alter its character.
The additional tax is nothing but an enhancement in the rate of the sales tax/purchase tax under the Act.
As soon as the assessing authority determines the levy of sales tax/purchase tax the additional tax under Section 6B become .
part of the assessment order.
Similarly if the main impost under Section 5 (1) is successfully challenged, the reasoning sustaining the challenge would also ipso facto affect the validity (if the additional impost under Section 6B of the Act.
(85 D E)