judgement:
Civil Appeal No.2215 of 1977.
From the Judgement and Order dated 237 1976 of the Madhya Pradesh High Court in Misc.
Appeal No.23 of 1976.
T.U.Metha, S.K. Gambhir, Vivek Gambhir and Surinder Karnail for the Appellants.
Uday U. Lalit and A.G.Ratnaparkhi for the Respondents.
The Judgement of the Courtwas delivered by SHAREMA,J,.
The question for decision in this appeal by special leave is whether a petition under s.11 of the , for declaring the marriage of the petitioner as nullity is maintainable after the death of the petitioners ' spouse.
The appellent No. 1, hereinafter referred to as the Maharani, was marriedto Maharaja Rameshwarsighji in1960 and a daughter, the appellant no.2, was born of the wedlock in 1964.
The relationship between the husband and the wife thereafter ceased to be cordial and the appellants started living in Bombay and the Maharaja within his estate in Madhya Pradesh.
According to the case of the respondent no.1 the Maharaja decided to remarry without legally separating from the appellant Maharani.
The respondent who is a relation of the Maharaj 's mother, respondent No.2, was misled both by theMaharaja and his mother in believing that the first marriage of the Maharaja had been dissolved and under the belief she married the Maharaja and the couple got several issues.
In 1974 when the Maharaja died, an application for grant of Letters of Administration was filed by the appellant Maharani and the respondent applied for probate on the basis of an alleged will which is denied by the appellant.
The proceedings are still pending.
In this background the respondent 197 No. 1 filed the present application under section 11 of the for declaring her marriage as nullity.
The Maharaja 's mother was impleaded as the sole respondent.
When the appellants learnt about the case, they intervened and were joined as parties.
The appellants challenged the maintainability of the application on the ground that the marriage could not be declared nullity after the death of the Maharaja.
Both the trial court and the High Court have rejected the appellants ' plea. 4.
mr. Mehta, the learned counsel for the appellants, has contended that having regard to the very special relationship between husband and wife, a marriage cannot dissolved or declared to be a nullity unless both of them are parties thereto.
The marital status of a person stands on a much higher footing than other positions one may hold in the society or may have in relation to a property; and cannot be allowed to be challenged lightly.
The marriage of a person, therefore, cannot be declared as a nullity after his death when he does not have an opportunity to contest.
He relied upon the language of s.11.
After its amendment in 1976 the section read this: "11.
Void marriages: Any marriage solemnized after the commencement of this Act shall be null and void and may , on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i),(iv) and (v) of Section 5." (emphasis added) 5.
The present proceeding was started in 1974, that is, before the amendment, and the section did not contain the words which have been underlined by us above.
At that time all that was required was that the application had to be filed by a party to the marriage under challenge.
On the plain language of the section as it stood then, it could not be claimed that in absence of the other spouse as a party to the proceeding, the same would not be maintainable.
The argument of Mr. Mehta is that the section had the same meaning before and after the amendment and the addition of the words in 1976 was merely clarificatory in nature.
He strongly relied upon the 69th Report of the Law Commission. 6.
The Report recommended several amendments in the which led to the passing of the Amending Act of 1976.
198 Reliance was placed on paragraph 6.1A of Chapter 6 of the Report which referred to the divergent views taken by the High Courts of Punjab and Madras on the question of maintainability of a petition under s.11 after the death of the other spouse.
The Commission, thereafter, observed thus: "We ought, however, to point out that in such a case, the proper remedy is a suit under the Specific Relief Act.
A petition under section 11 of the cannot be appropriate, because the other spouse is an essential party to any such petition.
This should be clarified by an amendment.
" It has been argued before us that the view of the Madras High Court referred to in the Report is the correct view which was accepted by the Law Commission, and since there was scope for controversy on the language of the section, the legislature agreeing with the Law Commission added the aforementioned additional words by way of clarification.
It is urged that such interpretation of the section did not lead to any injustice inasmuch as a suit for such a declaration was and is maintainable in the civil court.
Reliance has also been placed on "Rayden and Jackson 's Law and Practice in Divorce and Family matters." (15th Edn.), and several English cases in support of the proposition that on the death of a party to a matrimonial action the cause of action does not service.
Reference has been made to the case of Butterfield vs Butterfield, I.L.R. (Vol.50) Calcutta 153, where after the wife had obtained a decree nisi for dissolution of her marriage the husband died.
Following the English case of Stanhope vs Stanhope,[1886] 11 P.D.103, it was held that the decree could not be confirmed.
The learned counsel for the respondent relied upon certain observation made in other High Courts ' judgments supporting his stand.
He pointed out that having regard to the language of section 16, as it stood before the amendment, the children born of the respondent would not have been entitled to the benefit of the section in the absence of a decree declaring the marriage of their parents as nullity, and this was precisely the reason that the respondent had to commence the present litigation.
We have considered the argument of Mr. Mehta closely but do not find ourselves in a position to agree with him.
It is not correct to suggest that one uniform rule shall apply for deciding the maintainability of all proceedings involving issues relating to marital status.
The 199 question will be dependent upon the nature of the action and law governing the same.
The provisions of the relevant statute relating to a proceeding in question will be very material.
This aspect has been taken note of by Rayden and Jackson also in their book which has been relied upon by Mr. Mehta.
The passage at page 650 summarises the position in the following words: "Death of a party: effect on suit.
In many cases the fact of the death of one of the parties will render the process meaningless by reason of the circumstances that a marriage brought to an end by death could no longer be dissolved by an Act of the court.
But there is no general rule that, where one of the parties to a divorce suit has died, the suit abates, so that no further proceedings can be taken in it.
It has been said that it is unhelpful to refer to abatement at all.
The real question in such cases is whether, where one of the parties to a divorce suit has died, further proceedings in the suit can or cannot be taken.
The answer to that question, when it arises, depends in all cases on two matters and in some cases also on a third.
The first matter is the nature of the further proceedings sought to be taken.
The second matter is the true construction of the relevant statutory provision or provisions, or of a particular order made under them, or both.
The third matter is the applicability of section I (I) of the Law Reforms (Miscellaneous Provisions) Act 1934.
The dispute issue in the present appeal has to be answered by considering the nature of the proceedings and the true construction of the relevant provisions of the .
Under the general law a child for being legitimate has to be born in lawful wedlock, and if the marriage is void or declared to be so by the court, it will necessarily have the effect of bastardising the child born of the parties to such a marriage.
By enacting section 5(i) of the Act, the legislature abolished polygamy, which had always remained permissible and prevalent among the Hindus in the past.
The Act was bringing about a very significant departure in this regard; and taking into account the possibility of violation of the law in numerous cases atleast for sometime to come special provisions were included under s.16 of the Act with the object of protecting the legitimacy of the children.
The original section before the amendment of 1976 read as follows: "16.
Where a decree of nullity is granted in respect 200 of any marriage under section 11 or section 12, any child begotten or conceived before the decree is made who would have been the legitimate child of the parties to the marriage if it had been dissolved instead of having been declared null and void or annulled by a decree of nullity shall be deemed to be their legitimate child notwithstanding the decree of nullity.
Provided that nothing contained in this section shall be construed as conferring upon any child of a marriage which is declared null and void annulled by a decree of nullity any rights in or to the property of any person other than the parents in any case where, but for the passing of this Act, such child would have been incapable of possession of acquiring any such rights by reason of his not being the legitimate child of his parents.
" It will be seen that the benefit of the section was confined to only such cases where a decree of nullity was granted under section 11 or s.12.
it did not extend to other cases.
In 1976 s.11 was amended by inserting the words "against the other party", and along with the same s.16 was amended as it read now.
the following words in section 16(i). ". and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act." enlarged the applicability of the beneficial provisions, so as not to deny the same to children who are placed in circumstances similar to those of the present respondent.
By the amendment in s.11, in so far the cases where marriage can be declared as nullity, the application of the rule protecting the legitimacy was widened.
If that had not been done, the children born of such marriage would have been deprived of the advantage on the death of either of the parents.
By the simultaneous amendment of the two sections it can safely be deduced that the Parliament did not hold identical views as expressed by the Law Commission 's Report.
Even if it be assumed that the meaning of the section was not free from ambiguity, the rule of beneficial construction is called for in ascertaining its meaning.
The intention of the legislature in enacting s.16 was to protect the legitimacy of the children who would have been 201 legitimate if the Act had not been passed in 1955.
There is no reason to interpret s.11 in a manner which would narrow down its field.
With respect to the nature of the proceeding, what the court has to do in an application under s.11 is not bring about any change in the marital status of the parties.
The effect of granting a decree of nullity is to discover the flaw in the marriage at the time of its performance and accordingly to grant a decree declaring it to be void.
we, therefore, hold that an application under s.11 before its amendment in 1976, was maintainable at the instance of a party to the marriage even after the death of the other spouse.
Accordingly, this appeal is dismissed with costs.

summary:
The appellant No.1 Maharani was married to a Maharaja in 1960 and the daughter appellant no.2 was born of the wedlock in 1964.
The relationship between the husband and the wife thereafter ceased to be cordial and the appellant started living in Bombay and the Maharaja within his estate in Madhya Pradesh.
It is the case of the respondent No.1 that the Maharaja decided to remarry without legally separating from the appellant.
The respondent who is a relation of the Maharaja 's mother, respondent No.2,was misled both by the Maharaja and his mother, respondent No.2 was misled both by the Maharaja and his mother in believing that the first marriage of the Maharaja had been dissolved and under that belief she married the Maharaja had been dissolved and under that belief she married the Maharaja and several issues were born of this wedlock.
In 1974 when the Maharaja died, on application for grant of Letters of Administration was filed by the appellant Maharani, and the respondent No.1 applied for probate on the basis of an alleged will.
This will was denied by the appellants.
These proceedings are still pending.
Respondent No.1 filed an application under Section 11 of the for declaring her marriage as nullity, and the Maharaja 's mother was impleaded as the sole respondent.
The appellants intervened and were impleaded as parties.
The maintainability of the aforesaid application was challenged by the appellants on the ground that the marriage could not be declared 194 a nullity after the death of the Maharaja but both the trial court and the High Court have rejected this plea.
In the appeal to this Court it was contended on behalf of the appellants that having regard to the very special relationship between husband and wife,a marriage cannot be dissolved or declared to be a nullity unless both of them are parties thereto.
The martial status of a person sands on a much higher footing than other positions one may hold in the society and cannot be allowed to be challenged lightly,and that the marriage of a person, therefore, cannot be declared as nullity after his death when he does no have an opportunity to contest.
Reliance was placed upon the language of Section 11 of the .
On behalf of the respondent, it was pointed out that having regard to the language of Section 16 of the as it it stood before its amendment in 1976,he children born of the respondent would not have been entitled to the benefit of the section in absence of a decree declaring the marriage of their parents as nullity, and this was precisely the reason that the respondent had to commence the present litigation On the question: whether a petition under Section 11 of the for declaring the marriage of the petitioner as a nullity is maintainable after the death of the petitioner 's spouse.
Dismissing the appeal, this Court, HELD: 1 .An application under Section11 of the before its amendment in 1976, was maintainable at the instance of a party to the marriage even after the death of the other spouse.[201B].
In the instant case, the proceeding was started in 1974 that is, before the amendment was made in the Hindu Marriage Act,1955.
Section II did not contain the words "against the other party".
At that time all that was required was that the application had to be filed by a party to the marriage under challenge.
On the plain language of the section as it stood then,it could not be claimed that in absence of the other spouse as a party to the proceedings, the same would not be maintainable.[197F] 3.Under the general law a child for being legitimate has to be 195 born in lawful wedlock and if the marriage is void or declared to be so by the Court, it will necessarily have the effect ofbastardising the child born of the parties to such a marriage.[199F] 4.
By enacting Section 5(i) of the the legislature abolished polygamy, which had always remained permissible and prevalent among the Hindus in the past.
The Act was bringing about a very significant departure in this regard; and taking into account the possibility of violation of the law in numerous cases at least for sometime to come special provisions were included under Section 16 of the Act with the object of protecting the legitimacy of the children.[199G] 5.
The benefit of Section 16 was confined to only such cases where a decree of nullity was granted under Section 11 or section 12.
It did not extend to other cases.
in 1976 section 11 was amended by inserting the words "against the otherparty" and alongwith the same section 16 was amended.[200D] 6.
By the amendment in section 11, in so far the cases where marriage can be declared as nullity, the application of the rule protectingthe legitimacy was widened.
If that had notbeen,the children born of such marriages would have been deprived of the advantage on the death of either of the parents.
By the simultaneous amendment of the two sections it can safely be deducted that the Parliament did not hold identical views as expressed by the law Commission in its59th Report.[200F G] 7.
The intention of the legislature in enacting section 16 was to protect the legitimacy of the children who would have been legitimate if the Act had not been passed in 1955.[200H] 8.
There is no reason to interpret section 11 in a manner which would narrow down its field.
With respect to the nature of the proceedings, what the court has to do in an application under section 11 is not to bring about any change in the marital status of the parties.
The effectof granting a decree of nullity is to discover the flow in the marriage at the time of its performance and accordingly to grant a decree declaring it tobe void.
[201A B] Butterfield vs Butterfield; I.L.R.(Vol.50) Calcutta 153 and Stanhope vs Stanhope, , and Law Commission of India 59th Report Chapter 6, para 6.1A referred to.
196 9.It is not correct to suggest that one uniform rule shall apply for deciding the maintainability of all proceedings involving issues relating to marital status.
The question will be dependent upon on the nature of the action and law governing the same.
The provisions of the relevant statue relating to a question will be very material.[198H 199A] Rayden and Jackson 's Law and Practice in Divorce and Family Matters, (15th Edn.).
p.650, referred to.


judgement:
ivil appeal Nos.
552 554 of 1991.
From the Judgment and Order dated 9.10.1989 of the Central Administrative Tribunal, New Bombay in Transfer Applications No. 430, 431 and 433 of 1987.
B.K. Mehta, C.P. Pandey, M. Chopra and V.S. Sharma for the Appellants.
K. Lahiri, Ms. Kitti Kumaramangalam and Ms. Sushma Suri (NP) for the Respondents.
The Judgment of the Court was delivered by AHMADI, J.
Special leave granted The appellants and the writ petitioners are presently serving in the Time Keeping Department of the Naval Dockyard, Bombay, which is under the administrative control of the Vice Admiral, Flag Officer, Commanding in chief, Western Naval Command, Bombay.
In the said department there are several posts of Junior Time Keepers and only two posts of Senior Time Keepers.
Since the promotional posts were limited in number there was stagnation at the base level of Junior Time Keepers.
With a view to removing this stagnation, the cadre of Time Keepers was sought to be amalgamated with the clerical cadre in the same department.
On 14th September, 1966, the Under Secretary to the Government of India, Ministry of Defence, wrote a letter to the Chief of Naval Staff on the subject of amalgamation of the Time Keepers cadre with the clerical cadre.
The text of the letter reads as under: "Sir, I am directed to convey the sanction of the President to the merger of the cadre of time keepers with the clerical cadre in all Naval Establishments.
Consequent on this merger, 223 Senior Time Keeper will be redesignated as Upper Division Clerks.
The authorised ratio of 1:4 between UDCs and LDCs will be maintained after this merger but where because of the merger and redesignation of Senior Time Keepers as Upper Division Clerks the number of Upper Division Clerks exceeds the authorised ratio, no reservations will be made and the excess vacancies of Upper Division Clerks will be adjusted against vacancies of Upper Division Clerks becoming available by way of increase in Establishment, retirement, etc.
The existing pay of the time keepers will be protected and they will continue to draw increments in the new cadre on the due dates: 3.
Any subsidiary instructions regarding seniority promotion etc.
will be issued by you.
4.This letter issue with the concurrence of Ministry of Finance (Defence/Navy) vide their u.o.
No. 3161 NA dated 31.8.1866.
" A few days later another letter dated 5th December, 1966 was issued by the office of the Rear Admiral, Western Naval Command, Bombay, on the same subject which reads as under; "In accordance with the Govt.
of India, Ministry of Defence letter No. CP(A)/4895/NHQ/8364/D/N II dated 14th September 1966 the Cadre of Time Keepers will be merged with that of LDC/UDC with effect from 1st December, 1966.
This merger is intended only to give promotion to the Time Keepers alongwith the LDC/UDC.
Their duties, terms and conditions of service will remain the same and their hours of work will also continue to be 45 in a week.
Consequent upon the issue of this order and in order to distinguish them from the UDC/LDC and UDC(s)/LDC(s) the suffix "T" will be added after their designation.
All records and correspondence relating to them should also be indicated by this suffix".
224 The employees working in the Time Keeping Department were entitled to the benefit of over time and productivity linked bonus since they were considered to belong to the industrial wing.
Lower Division Clerks and Upper Division clerks belonging to the clerical cadre who were working in different administrative offices of the Naval Dockyard were not entitled to this benefit.
Therefore, when one Thoppil Ramakrishnan was transferred in August, 1980 as UDC(T) in the Spare Parts Distribution Centre, he challenged his transfer by filing a Writ Petition No. 1065/80 in the High Court of Bombay on the ground that since he was appointed as Junior Time keeper in 1953 and was promoted as UDC(T) in 1967 he belonged to a special cadre and could not be transferred to the general cadre as that would entail loss of the benefit of over time and productivity linked bonus.
His petition was allowed by the High Court by the judgement and order dated 1st March, 1984.
The High Court, treating the letter of 5th December, 1966 as clarificatory, concluded that the merger was intended for the sole purpose of making available to the Time Keepers avenues of promotion in the clerical cadre but their terms and conditions of service were to remain in tact and it is for that purpose that they were to be designated by the suffix"T".
The High Court, therefore, held that there was no complete merger of the two cadres.
The High Court, however, realised that Time Keepers could not be given promotion to more responsible assignments unless they received the required experience of administrative work normally available to Lower Division Clerks and Upper Division Clerks, but rested content on the statement made by the counsel for the petitioner that the pertitioner will not claim the benefit of promotion in the clerical cadre.
On this statement the High Court made the rule absolute.
Against this judgement a Letters Patent Appeal was filed but without success.
Another Writ Petition No.1066/80 files by Chob Singh Tomar was similarly disposed of by the same learned Judge on the next day i.e. 2nd March 1984.
Both the above Judgement were mainly based on the language of the letter of 5th December, 1966.
Realising the difficulty created by the saidletter, the Flag Officer, Commanding in Chief, Western Naval Command, Bombay, cancelled the said letter by his communication dated 27th August, 1984.
The subsequent communication reads as under: "1.
Ministry of Defence Letter CP(A)/4895/NHQ/8634/D(N II) dated 14 Sep. 66 is reproduced as Annexure I to this order for information.
225 2.This Headquarters Civilian Establishment Order Part II of 1966 No.6 dated 05 Dec. 66 and 50/80 dated 23 Aug. 80 are hereby cancelled.
" By a subsequent letter dated 20th November, 1984 it was further directed that the suffix"S" and suffix "T" should bed removed from all records and the incumbents should be redesigned as LDCs/UDCs.
On the cancellation of the letter of 5th December, 1966 and the removal of the suffix "T", what survived was only the merger order of 14th September, 1966.
Consequently inter se transfers from the Time keeping Department to the various administrative departments of the Naval Dockyard became possible.
Thereupon, R.A. Sawant and R.D. Jawakar who were working in the Time Keeping Department were transferred on promotion as UDC by orders dated 17th April, 1985 and 5th October, 1985 respectively to other administrative departments of the naval establishment.
These transfers triggered off certain writ petitions in the High Court of Bombay.
On the constitution of the Central Administrative Tribunal for that area, those writ petitions were transferred to the Tribunal for disposal in accordance with law.
The Tribunal by its impugned common judgement dated 9th October, 1989 came to the conclusion that after the cancellation of the order dated 5th December, 1966 the field was held by the Presidential Order referred to in the letter of 14th September, 1966.
The Tribunal held that the employees in the Time Keeping Department no longer belonged to separate cadre and the authorities were entitled to transfer them to the other ministerial branches in the Naval establishment under the Merger Scheme.
In regard to the judgements delivered by the High Court of Bombay on 1st and 2nd March, 1984, it opined that on the cancellation of the order of 5th December, 1966 those decisions had lost their force and the question had to be answered solely on the basis of Presidential Order referred to in the letter of 14th September, 1966.
In this view of the matter the Tribunal dismissed the applications and vacated the interim orders.
It is against the said judgement of the Tribunal that the aforesaid appeals have been filed.
Certain other employees who apprehended transfer from the Time Keeping Department to other administrative departments in the Naval establishment approached this Court directly by way of a writ petition.
Their contention is identical to the contention raised in the appeals preferred against the impugned order of the Tribunal.
We will, therefore, dispose of the appeals as well as the writ petition by this common judgement.
226 Mr. Mehta, the learned counsel for the appellant petitioners contended that the employees working in the Time Keeping Department of the Naval establishment perform duties which are distinct from ordinary clerical duties and therefore they constitute a separate and distinct cadre to which are attached certain additional monetary benefits, such as, over time payment, productivity linked bonus, etc., which would be lost to them if they are transferred to other administrative departments of the naval establishment.
He submitted that since the Junior Time Keepers did not have sufficient avenues for promotion and were stagnating at the base leval and the Senior Time Keepers had no promotional avenue altogether, their grievance was sought to be redressed by providing them further avenues of promotion under the Presidential Order, without depriving them of their identity and special benefits available as belonging to the industrial wing of the establishment.
According to him the Presidential Order of merger contained in the letter dated 14th September, 1966 was issued for this limited purpose only of giving the Time Keepers an opportunity of career advancement which was available to their counter part in the administrative (Non industrial) departments of the Naval establishment but it was never intended to deprive them of the additional monetary benefits to which they were entitled as belonging to the industrial wing.
In other words according to Mr. Mehta the merger of the Time Keepers ' cadre with the clerical cadre was only notional and limited to opening avenues for promotion for the former but there was no actual merger in the sense of the Time Keepers losing their identity and that is why in the subsequent letter of 5th December, 1966 the department rightly observed that their duties, terms and conditions of service will remain the same and their hours of work will continue to be 45 in a week and they should be distinguished by the use of the suffix "T" after their designation.
The cancellation of the order of 5th December, 1966 by the subsequent order of 22nd August, 1984 does not alter the situation contended Mr. Mehta and, therefore, said he, the Tribunal was in error in coming to the conclusion that the earlier two decisions of the Bombay High Court had lost their force.
He, therefore, submitted that the Tribunal 's approach was clearly erroneous and this Court must correct the same.
Mr. Lahiri, the learned counsel for the department contended that the Presidential Order referred to in the letter of 14th September, 1966 had merged both the cadres and the Time Keepers were, therefore, redesignated as Lower Division Clerks and Upper Division Clerks.
He submitted that there was no indication in the Presidential Order that these Time Keepers who were redesignated as LDCs/ 227 UDCs will continue to constitute a separate cadre and yet be entitled to promotion in the clerical cadre.
He, therefore, submitted that the subsequent order of 5th December, 1966 was issued on an erroneous reading of the Presidential Order and when the department realised the mistake after the High Court 's judgements, it promptly cancelled the said order and restored the position as on the issuance of Presidential Order.
He, therefore, submitted that the Tribunal was right in coming to the conclusion that as the High Court 's judgements were based on the subsequent order of 5th December, 1966 and the same was since cancelled, the judgements no longer held the field and the appellants petitioners were not entitled to the benefit thereof.
He further pointed out that under the Presidential Order the ` pay ' of the Time Keepers has been protected and therefore, they can have no cause to complain but such of those LDCs/UDCs who are posted in the Time Keeping Department are allowed to draw overtime wages as well as bonus admissible under the relevant law.
These benefits are attached to the post and not the individual and the one who is manning the same is entitled to them and not others.
He, therefore, submitted that this Court should not interfere with the view taken by the Tribunal and should dismiss these appeals as well as the writ petition.
We have carefully considered the contentions urged before us by the learned counsel for the contesting parties.
The letter of 14th September, 1966 clearly refers to the Presidential sanction"to the merger of the cadre of Time Keepers with the clerical cadre in all Naval establishments".
Consequent on this merger the Junior Time Keepers were to be redesignated as Lower Division Clerks and there Senior Time Keepers as Upper Division Clerks.
There is nothing in this letter to convey that they were to retain their identity as Time Keepers.
The letter further states that their entry into the clerical cadre should not disturb the authorised ratio of 1:4 between UDCs and LDCs but where because of the merger and redesignation of Senior Time Keepers as UDCs, the numbers of UDCs exceeds the authorised ratio, there should be no revision but in the excess should be adjusted against vacancies becoming available by way of increase in establishment, retirement, etc.
Paragraph 2 of that letter states that the existing pay of the Time Keepers will be protected and they will continue to draw increments in the new cadre on the due dates.
It is clear from the above text of the letter of 14th September, 1966 that the intention was to merge the cadre of Time Keepers with the clerical cadre and to adjust the imbalance.
If any, caused on account of such merger in a manner so as not to disturb the authorised ratio.
The pay and increments of the Time Keepers were protected by the said order.
There 228 can, therefore, be no doubt that the plain language of the Presidential Order as reproduced in the letter of 14th September, 1966, clearly manifests an intention to merge the existing Time Keepers ' cadre with the clerical cadre, albeit with a view to opening avenues for promotion for the Time Keepers.
The subsequent order of 5th December, 1966 issued by the Western naval Command could not alter this Presidential Order.
If that subsequent order was found to be inconsistent with the Presidential Order, it had to be ignored for the simple reason that the officers of the Naval establishment were not competent to alter, vary or modify a Presidential Order.
The interpretation placed on that subsequent letter by the Bombay High Court in the judgements delivered on 1st and 2nd March, 1984 does give the impression that the High Court thought that there was no complete merger and the personnel meaning the Time Keeping Department retained their identity and were, therefore, entitled to the additional benefits of over time and productivity linked bonus.
After the judgements were delivered the department instead of approaching this Court thought it wise to undo the mischief by cancelling the subsequent order of 5th December, 1966 which was the source of trouble.
Since the conclusion reached by the High Court was based on the language of the subsequent order of 5th December, 1966, the Tribunal was not bound to follow the same on the cancellation of that order.
We may also state, with respect to the learned judge in the High Court, that we find it difficult to persuade ourselves to his point of view for diverse reasons.
Firstly, the plain language of the text of the Presidential Order manifests a clear intention to merge the cadre of Time Keepers with the clerical cadre on the establishment.
Secondly, the subsequent order of 5th December, 1966 had to be read consistently with the Presidential Order as to fulfil the purpose or objective and not to impede or stifle it.
Thirdly, even if the subsequent order was found to be inconsistent with the Presidential Order in certain respects, the inconsistency had to be ignored for the obvious reason that the officer issuing the order could not have altered or modified the Presidential Order and lastly, if there was any confusion caused by the subsequent order it should have been read harmoniously with the Presidential order Order so as to advance its objective or merger of the Time Keepers ' cadre with the clerical cadre.
In order to appreciate Mr. Mehta 's contention that by the Presidential Order only a notional merger for the limited purpose of providing the Time Keepers with promotional avenues was intended and not actual merger so as to deprive the Time Keepers of their distinct identity, it is necessary to realise that the sole purpose of the exercise 229 indisputably was to make career advancement possible for the Time Keepers.
At the time of issuance of the Presidential Order there were only two layers in the Time Keeping Department of the establishment.
The base level which was fairly large comprised Junior Time Keepers and above them were Senior Time Keepers.
Since there were only two posts of Senior Times Keepers, the prospects of promotion for Junior Time Keepers were very dim.
As there was no further promotional avenue for the Senior Times Keepers, the mobility was restricted and they too suffered on that account.
There was, therefore, large scale stagnation and with a view to overcoming the same the question of merger of the Time Keepers ' cadre with the clerical cadre was examined.
On the same being found feasible, the Presidential Order came to be issued.
The High Court realised that if the Time Keepers do not gather sufficient exprience of administrative work they would not be able to handle responsible work at higher levels in the heierarchy and hence their movement to the ministerial posts is absolutely necessary.
But the High Court resolved this situation by obtaining a statement from the incumbent that he would not claim the benefit of promotion to which he may otherwise be entitled by reason of the merger policy.
Would this advance the policy of merger or fulfil the purpose of opening avenues of promotion for the Time Keepers? If the mobility from Time Keepers ' post to the clerical post is halted on account of the former 's unwillingness to move to the clerical side to gain experience and equip himself to discharge higher responsibilities in future merely to retain the monetary benefit accruing from overtime wages and bonus, it is difficult to understand how even the limited objective of providing promotional avenues to Time Keepers would be satisfied.
And it is all the more difficult to understand how those incumbents who entered the Time Keepers Department after the Presidential Order became effective can claim that they have a vested right to continue in the department because they would suffer a monetary loss if they are transferred to the clerical posts.
The list Annexure C to the appeals would show that except for those at serial Nos.
1 to 3, 8 and 12, the rest of the incumbents had either joined as LDC in the Time Keeping Department after the Presidential Order became effective or had been transferred to that department from the other administrative departments where they were working as LDCs.
It is difficult to understand how those who entered that department after the merger via the other administrative branches of the establishment can refuse to go back on the specious plea that they would suffer a financial loss.
They can have no right to the post in the Time Keeping Department.
So long as they are posted there and are discharging the functions of the Keeper they would be entitled to overtime wages 230 and bonus but on that plea they cannot contend that they are not transferable to the ministerial posts on the establishments.
We have,therefore, no hesitation in concluding that those who joined the Time Keeping Department after the Presidential Order became effective,either by a direct posting in that department as LDC or on transfer to that department,have no right to continue in that department merely because their would entail economic loss since they are governed by the merger scheme which had become operative before their entry in that department.
, They were borne on the common cadreand werenever members of the earlier Time Keeper 's cadre.
But the case of those Time Keepers who were serving as such in the Time Keeping Department,such as, the incumbents at serial Nos.1 to 3, 8 and 12 (S.P.Jadhav,V.S.Khot,P.J. Rodrigues, B.J.Dhamba and V.S. Shinde), must be viewed differently.
They belonged to a separate cadre of Time Keepers at the date of the issuance of the Presidential Order.
Their terms and conditions of service couldnot be altered,varied ormodified to their detriment without giving them an opportunity to exercise their option.
If their transfer outside the Time Keeping Department becomes possible by the merger of their cadre with the clerical cadre but the same entails civil consequences in the form of loss of overtime wages and bonus, justice demands that they must be given an option to choose which course is beneficial to them and if they decide or opt in favour of the status quo they must be allowed to continue as Time Keepers and not be transferred outside that department without their consent, because to do so would render the scheme vulnerable unless the department agrees to make good the economic loss suffered on transfer.
Therefore,so far as those Time Keepers who were serving in the Time keeping Department on and before the date of the implementation of the Presidential Order and who continue to serve in the same department are concerned, the department should give them an option if they are proposed to be transferred outside that department or the department should undertake to make good the economic loss which they are likely to suffer on transfer.
Such a reading of the Presidential Order is permissible on the plain language of theorder and saves it from being rendered vulnerable.
See: The State of Kerala vs M.K.Krishnan Nair & Ors.
, ; at 571.
In the result we allow the appeals partly insofar as they concern the aforenamed five persons to the extent indicated above and dismiss them in respect of the remaining appellants.
Since the writ petitioners 231 are not shown to belong to the category of employees who were borne on the cadre of Time Keepers and were actually working in the Time Keeping Department on or before the issuance of the Presidential Order, their writ petition fails and is dismissed.
There will,however, be no order as to costs in the appeals as well as the writ petition.

dataset_name: IN-Abs

summary:
The appellants and Writ Petitioners are serving the Time Keeping Department of the Naval Dockyard, Bombay under the control of the Western Naval Command.
With a view to removing the stagnation in the cadre of Time Keepers for lack of promotion avenues, the Government of India, Ministry of Defence, by its letter dated 14.9.1966 addressed to the Chief Naval Staff conveyed the sanction of the President to the merger of the Time Keepers Cadre with the Clerical Cadre in all Naval establishments.
Consequent to this merger the Jr. Time Keepers were to be re designated as Lower Division Clerks and Sr.
Time Keepers as Upper Division Clerks.
A few days thereafter the office of the Rear Admiral, Western Naval Command, issued a letter dated 5.12.1966 which reads as under: ". . . . . . . 2.
This merger is intended only to give promotion to the Time Keepers along with the LDC/UDC.
Their duties, terms and conditions 220 of Services will remain the same and their hours of work will also continue to be 45 in a week.
Consequent upon the issue of this order and in order to distinguish them from the UDC/LDC and UDC(s)/LDC(s) the suffix "T" will be added after their designation.
As per their conditions of service the employees serving in the Time keeping Department were entitled to the benefit of over time and productivity linked bonus but those belonging to the clerical cadre working in the Administrative Offices of the Dockyard were not entitled to these benefits.
One Thoppil Ramakrishnan on being transferred in August 1980 as UDC(T) in the Spare Parts Distribution Centre, challenged his transfer by a Writ Petition in the High Court of Bombay wherein he contended that as he was initially appointed Jr. Time Keeper and promoted as UDC(T) in 1967 he belonged to a special cadre and could not be transferred to the general cadre as that would entail loss of benefit of over time and bonus.
The High Court treating the letter dated 5th December, 1966 as merely clarificatory, held that there was no complete merger of the two cadres and on the statement of the counsel for the petitioner that the petitioner will not claim the benefit of promotion in the clerical cadre, allowed the writ petition quashing the transfer order.
Realising the situation created by its letter of 5th December, 1966 the western Naval Command cancelled the said letter and consequently inter se transfer became possible.
Thereafter, some employees in the Time Keeping Department were transfered by orders dated 17.4.1985 and 5.10.1985.
The affected employees filed a Writ Petitions in the High Court which were later transfered to the Central Administrative Tribunal.
The Tribunal came to the conclusion that after the cancellation of the Order dated 5.12.1966, the field was held by the Presidential Order dated 14.9.1966, that under the merger Scheme envisaged by the said order the employees in the Time Keeping Department no longer belonged to a separate Cadre and as such the Authorities were entitled to transfer them to other ministerial branches.
The Petitions were accordingly dismissed by a common judgment dated 9th October, 1989.
This judgment is assailed by the concerned employees in the appeals before this court.
One Writ Petition has also been filed by some other 221 employees apprehending similar transfers.
Allowing the appeals partly insofar as they relate to five employees who belonged to the separate cadre of the Time Keeping Department at the date of issuance of the Presidential Order and dismissing the same in respect of the remaining appellants and also dismissing the Writ Petition, this Court, HELD: The letter of 14th September, 1966 clearly refers to the Presidential sanction "to the merger of the cadre of Time Keepers with the clerical cadre in all Naval establishments".
Consequent on this merger, the Junior Time Keepers were to be redesignated as Lower Division Clerks and the Senior Time Keepers as Upper Division Clerks.
There is nothing in this letter to convey that they were to retain their identity as Time Keepers.[227E] The subsequent order of 5th December, 1966 issued by the Western Naval Command could not alter this Presidential Order.
If that subsequent order was found to be inconsistent with the Presidential Order, it had to ignored for the simple reason that the Officers of the Naval establishment were not competent to alter, very or modify a Presidential Order.
[228B] It is difficult to understand how those who entered the Time Keeping Department after the merger order, can refuse to go on transfer on the plea that they would suffer a financial loss.
They can have no right to the post in the Time Keeping Department.
So long as they are there and are discharging the functions of the Time Keeper, they would be entitled to the special benefit of over time and bonus but on that plea they cannot contend that they are not transferable to the ministerial posts.
We have, therefore, no hesitation in concludingthat those who joined the Time Keeping Department after the Presidential Order became effective, have no right to continue in that department merely because their transfer would entail economic loss since they are governed by the merger scheme which had become operative before their entry in that department.
They were borne on the common cadre and were never members of the original Time Keepers Cadre.
[229G 230B] So far as those Time Keepers who were serving in the Time Keeping Department on and before the date of implementation of the Presidential Order and who continue to serve in the same department are concerned, the department should give them an option if they are proposed to be transferred outside that department or the depart 222 ment should undertake to make good the economic loss which they are likely to suffer on transfer.
[230F G] The State of Kerala vs M.K. Krishnan Nair & Ors., , referred to.


judgement:
ivil Appeal No. 1277 of 1979.
From the Judgment and Decree dated 4.8.1977 of the Kerala High Court in A. section No. 640 of 1971.
G. Viswanath lyer, F.S. Nariman, K. Parasaran, K.R. Nambiar, P. K. Pillai, section Balakrishnan, section Ganesh, Joy Joseph, Mrs. A.K. Verma, section Sukumaran for J.B.D. & Co., Baby Krishnan and V.J Francis for the appearing parties.
The Judgment of the Court was delivered by KULDIP SINGH, J.
The dispute before us is regarding the ownership rights over the timber clear felled from about 150 acres of jungle area in Kallar Valley and the right to transport the timber so felled from the said area.
The Kallar Valley area forms part of the tract of land originally known as Kanan Devan Anchanatu Mala in the erstwhile Travancore territory of Kerala State.
This area is generally called the Kanan Devan Hills concession (hereinafter called the 'Concession Area ') ' The Poonjar Rajs, held free hold proprietary rights in the Concession Area.
Originally the Raja was exercising sovereign rights but later on he came under the suzerainty of Travancore State.
The Poonjar Rajsa, by a deed dated July 11, 1877 (hereinafter called 'First Concession '), conveyed the concession area with all the hills and forests therein to one J.D. Munro for cash consideration of Rs.5,000 and a deferred perpetual annual payment of Rs 3,000 from 1884 onwards.
Thereafter on July 26, 1879 a second document was executed between the same parties (hereinafter called 'Second Concession ').
The terms of the first concession were reiterated enuring to Munro, his heirs, successors and assigns absolute right for ever to make all kinds of cultivations and improvements on the Concession Area.
The grant of rights to Munro by the First Concession was ratified by the Travancore Government by a deed of ratification dated November 28, 1878.
Munro assigned the Concession Area to The North Travancore Land Planting and Agricultural Society Limited by a deed dated December 8, 1879.
Thereafter an agreement was executed between the Travancore Government and the Society on August 2, 1886.
264 By virtue of the agreement dated September 18, 1889 between the Poonjar Raja and the Travancore Government and the proclamation of the Maharaja of Travancore dated August 24, 1899 the territory comprising the Kanan Devan Hills including the Concession Area was declared part of the Travancore State.
There were various transfers in respect of the Concession Area but finally by a deed dated July 16, 1900, the Concession Area came to be vested in the Kanan Devan Hills Produce Company Limited, (hereinafter called 'the company ').
In and around May 1963 the company clear felled about 150 acres in the Concession Area for cultivation.
The Company applied to the State Government for grant of free passes to transport the timber from the Concession Area.
The State Government by an order dated November 25, 1966 informed the company that it could not take away timber outside the limits of the Concession Area except in accordance with the Rules of the forest department and on payment of levy in the shape of Kuttikanam.
According to the Government in terms of the deeds of conveyance/ratification the company was liable to pay Kuttikanam in respect of the timber taken out of the Concession Area.
The company filed a suit in the year 1968 in the Court of Subordinate Judge, Kottayam against the State of Kerala and its officers.
In the suit, the company prayed for the following reliefs: (a) A declaration that the plaintiff company has full and unqualified ownership and title over, and right of removal of the said timber from the Concession Area; (b) Declaration that the State has no right to claim seigniorage, Kuttikanam or any other payment in respect of the said timber; (c) A mandatory injunction directing the defendants to grant the necessary free passes for the free transit of the timber outside the Concession Area; (d) Prohibitory injunction restraining the defendants from taking any steps under the order dated 25.11.1966.
The State Government resisted the suit and controverted the interpretation placed by the company on the deeds of conveyance/ ratification.
According to the State the company was only a lessee of the Concession Area and in terms of the deeds of conveyance/ratification the State Government had the absolute right over the trees and 265 timber in the Concession Area.
The company only acquired the right to use and remove the timber subject to the restrictions imposed in the said documents.
It was further contended by the State Government that the title and ownership in the trees and timber in the Concession area always remained with the State Government and the company could only take the timber outside the limits of the Concession Area in accordance with the rules framed by the State Government and on payment of Kuttikanam.
The Trial Court in a detailed and well reasoned judgment dismissed the suit of the company.
The Trial Court on the interpretation of First Concession (Exhibit P 1), Second Concession (Exhibit P 2), deed of ratification (Exhibit P 62) and the Government agreement with the Society dated August 2, 1866 (Exhibit P 64) came to the conclusion that the company did not acquire absolute proprietary rights over the Concession Area or the trees and timber in the said area.
It was held that the Poonjar Chief had only conveyed heritable and transferable possessory rights over the Concession area to the grantee.
It was also held that absolute rights over the trees and timber in the Concession Area did not pass to the grantee and it had only the right to use and remove timber subject to the restrictions imposed in the deeds of conveyance/ratification.
The Court further held that the relevant rules framed under the Travancore Forest Act, 1952 for levy of Kuttikanam were applicable to the timber transported from the Concession Area.
The contention of the company that it was entitled to free passes for transportation of timber outside the Concession Area under the Transit Rules was rejected.
The suit of the company was thus dismissed with costs.
The company went up in appeal before the High Court.
It was contended that the Trial Court misinterpreted the documents P 1, P 2, P 62 and P 64.
It was contended that the Poonjar Raja had conveyed absolute possession to the grantee to be enjoyed perpetually with heritable and transferable right and it ought to have been held that the natural consequence of such a conveyance was to grant the company absolute title to the trees standing on the area so conveyed.
It was argued before the High Court that the State Government had no right over the trees and the timber within the Concession Area.
Before adverting to the various contentions raised by the parties before it the High Court indicated the approach it adopted to the questions involved in the case in the following words: 266 "For resolving the real controversy in the case we do not think there should be an enquiry into the question whether the plaintiff company is the absolute owner of the Concession Area as alleged by them or the company is only a lessee as contended by the defendants.
Nor do we think any decision is necessary here as to whether at the time, the agreement and proclamation of 1899 came into existence, the Poonjar Chief had vested in him any proprietary rights over the Concession Area which he could pass to the government.
We also do not think we should make a general enquiry as to the nature and extent of the rights conveyed and secured by the First Poonjar Concession of 11.7.1877 and second Poonjar Concession of 26.7.1879 (Exs.
P 1 and P2).
We can well proceed in the matter on the basis, as stated by the court below, that absolute rights over the Concession Area had not been conveyed under Exs.
P 1 and P 2, that by virtue of the transactions the plaintiff had only absolute possession with heritable and transferable interest and the right to enjoy the land subject to the terms and conditions declared and defined in the Ratifica tion Deed and agreement of modification, namely Exs.
P 62 and P 64.
The question is what is the plaintiff 's right over the timber and tree growth in the area on the basis of the grant under Exs.
P 1 and P 2, wherein it gets wide rights in regard to the jungles and forest in the Concession Area unqualified rights to clear the land and improve the source.
It is no doubt true that the rights which the plaintiff has acquired as per the grant of the Poonjar Raja are subject to the terms and conditions imposed by the Sovereign power of the Maharaja under exhibit P 62 and P 64.
In short the question for a decision in the appeal will revolve round the interpretation of the relevant clauses in these documents.
" The High Court then considered the contents of the documents P 62 and P 64 and came to the conclusion that the company had full rights over the timber clear felled from the Concession Area and it had right of removal of the timber with the necessary free passes issued under the timber transit rules.
It was further held that the State of Kerala had no right or claim for the seigniorage or Kuttikanam or any other payment in respect of the said timber.
The High Court allowed the appeal of the company and set aside the judgment and decree of the Trial Court.
This appeal via special leave petition is against the judgment of the High Court.
267 The High Court proceeded on the basis that absolute rights over the Concession Area had not been conveyed under the documents of conveyance/ratification and the right to enjoy the land was subject to the terms and conditions declared in the ratification deed P 62 and the agreement of modification P 64.
We agree with the approach of the High Court.
The question, therefore, is what are the company 's rights over the timber and the tree growth in the Concession Area.
This takes us to clause 5 of P 62 and clause 7 of P 64 which are relevant.
Clause fifth of the ratification dated November 28, 1878 Exhibit P 62 is as under: "Fifth: The grantee can appropriate to his own use within the limits of the grant all timber except the following and such as may hereafter be reserved, viz., Teak, Coal teak, Black wood, Aboney, Karinthali Sandalwood.
Should he carry any timber without the limits of the grant it will be subject to the payment of Kuttikanam or customs duty or both as the case may be in the same way as timber ordinarily felled.
In the case of the excepted timber the grantee is required to pay seigniorage according to the undermentioned scale. .
The grantee is bound to deliver to the Poonjar Chief, to enable him to make over to the Sirkar, all ivory, cardamoms and other royalties produced in the land and all captured elephants and he will be paid by the said Chief according to agreement with him the regulated price for the articles of produce and the regulated reward for the elephants.
Clause 7 of the agreement dated August 2, 1886 Exhibit P 64 is as under: "7.
The society, its successors and assigns may use and appropriate to its own use within the limits of the said tract of land all timber except the following and such as may hereafter be reserved, viz., Teak, Coak teak, Black wood, Aboney, Karinthali and Sandalwood.
But such society, its successors and assigns shall not fell any timber beyond what is necessary for clearing the ground for cultivation and for building, furniture and machinery within the limits of the grant.
No unworked timber or articles manufactured therefrom shall be carried outside the limits of the grant except in conformity with the rules of the forest and 268 customs department for the time being in force.
In the case of the excepted timber the society for itself, its successors and assigns agrees to pay seigniorage according to the undermentioned scale. . .
The society for itself, its successors and assigns agrees to deliver to the said Poonjar Raja or Chief to enable him to make over the same to the government of Travancore, all ivory and cardamoms and other royalties. . captured elephants. .
Mr. Parasaran, learned counsel appearing for the respondent company contended that in P 62 it was provided that the grantee could not carry timber beyond the limits of the grant without payment of Kuttikanam but by the time the agreement P 64 was executed in the year 1886 Kuttikanam had been abolished and as such there was no provision for the payment of Kuttikanam in the document P 64.
Clause 7 of P 64 reproduced above makes it clear that the respondent company may use and appropriate to its own use within the limits of the Concession Area all timber except to the extent mentioned therein.
It was further provided that. . . society, its successors and assigns shall not fell any timber beyond what is necessary for clearing the ground for cultivation and for building, furniture and machinery within the limits of the grant.
No unworked timber or articles manufactured therefrom shall be carried outside the limits of the grant except in conformity with the rules of the forest and customs department for the time being in force".
It is thus clear that the company has no right under the said clause to carry the unworked timber beyond the limits of the grant.
The company could not fell timber beyond what was necessary for clearing the ground for cultivation and for building, furniture and machinery within the limits of the grant.
Clause 7 clearly indicates that the grantee has no absolute right of ownership over the tree growth and the timber within the Concession Area.
The ownership remains with the Government and the grantee has been given the right to fell the trees for clearing the ground for cultivation and to use the timber for specified purposes within the limits of the grant.
An identical clause in another grant entered into by the Travancore Government came for consideration before a Full Bench of the Kerala High Court in George A Leslie vs State of Kerala, [ K. K. Mathew, J. (as the learned Judge then was) interpreted the clause as under: "We think that if title to the reserved trees passed to the grantees, a provision of this nature would have been 269 quite unnecessary.
There was no purpose in stating that the grantees will be free to appropriate the reserved trees for consumption within the limits of the grant, if title to the trees passed to the grantees; the provision is a clear indication that the grantees were allowed to cut and appropriate the reserved trees for consumption within the limits of the grant as a matter of concession.
We agree with the interpretation given to the clause by Mathew, J. and hold that the respondent company did not acquire absolute proprietary rights over the Concession Area or the trees and the timber therein.
The company acquired the right to fell the trees and use the timber subject to the restrictions imposed in clause 7 of P 64.
Since the respondent company has no right to remove the timber beyond the limits of the Concession Area, the State Government was justified in refusing to permit free transportation of timber from the said area.
We do not agree with Mr. Parasaran that Kuttikanam having been abolished in the year 1884 the respondent company was not liable to pay Kuttikanam while transporting the timber from within the Concession Area.
In Leslie vs State of Kerala (supra) the term "Kuttikanam" was explained as under: "In the Malayalam and English Dictionary by Rev. H. Gundert D. Ph. page 278, 'Kuttikanam ' is defined as meaning 'the price of timber; fee cliambable by the owner for every tree cut down by the renter '.
In 'The Manual of Malabar Law ' by Kadaloor Ramachandra lyer, Chapter, VII, page 44, it is stated: 'Kuttikanam is a mortgage of forests by which the landlord assigns on mortgage a tract of forest land receiving a stipulated fee for every trees felled by the mortgagee, the entire number of the trees, to be cut down and the period within which they are to be felled being expressly fixed in the karar entered into between the parties. .
In the Glossary attached to the Land Revenue Manual (1916) Vol.
IV, at page 883, the word 'Kutti kanam ' is said to mean 'a fee paid to the Sirkar for felling trees other than royal trees and tax paying trees '.
In the 270 Glossary of Administrative Terms, English Malayalam, by the Official Language Committee, at page 302, 'seigniorage ' is defined as meaning. .
We do not think that 'Kuttikanam ' is either a fee or tax.
A tax or fee is levied in the exercise of sovereign power.
We think that in the context 'Kuttikanam ' means the Government 's share of the value of the reserved trees.
" It was further held by Mathew, J. that Kuttikanam being the Government 's share of the value of the trees owned by the Government it has the power to fix the value of the trees.
We agree with the reasoning and conclusions reached by Mathew J. Since the ownership cover the tree growth and timber in Concession area vests with the Government it has a right to impose Kuttikanam on the removal of the trees from within the Concession area.
We may examine the justification for levying Kuttikanam from another angle.
Clause 7 of P 64 states that no unworked timber or articles manufactured therefrom shall be carried outside the limits of the grant except in conformity with the rules of the forest department for the time being in force.
The Government of Kerala, in exercise of its rule making power under Section 93 of the Travancore Cochin Forest Act, 1951, framed rules regulating the levy of Kuttikanam on trees, standing on Government land by a notification dated July 9, 1958.
The said rules are reproduced hereinafter.
"TRAVANCORE COCHIN FOREST ACT, 1951 (111 OF 1952) RULES REGULATING THE LEVY OF KUTTIKANAM ON TREES IN GOVERNMENT LANDS.
(Section 93(2)(d)(dd) and (e) Notification No. 14824/58 3/Agri./F.(B) 3 dated 9th July 1958 published in the Gazette dated 15th July 1958 Part In exercise of the powers conferred by sub section (2)(d)(dd) and (e) of Section 93 of the Travancore Cochin Forest Act, 1951 (Act Ill of 1952) the Government of Kerala hereby make the following rules, regulating the levy of Kuttikanam on trees, standing on Government lands, namely: 271 1.
All trees standing on land temporarily or permanently assigned, the right of Government over which has been expressly reserved in the deed of grant or assignment of such land, shall be the absolute property of Government.
It shall not be lawful to fell, lop, cut or maim or otherwise maltreat any tree which is the property of Government without proper sanction in writing granted by an officer of the Forest Department not below the rank of an Assistant Conservator: Provided that in cases where the holder of the land is allowed under the title deed to lop or fell any such tree, such lopping or felling may be done by such holder in the manner and subject to such conditions and payment as may be specified in the title deed in that behalf.
Any lopping or felling of such trees otherwise than in accordance with the conditions and limitation specified in the deed of grant shall be unlawful.
Government may, in the absence of any provision to the contrary in the title deed, sanction the sale of timber which is the property of Government to the holder of the land on which such timber is standing, on payment of Kuttikanam or Seigniorage or such other rates as may be specified by Government in each individual case.
In cases where the title deed specified the rate at which the timber will be sold to the holder of the land, such rates only will be levied.
Explanation: 'Kuttikanam ' means the seigniorage rate that may be in force in the Forest Department from time to time and notified by Government.
The Collector of each District shall forward to the Chief Conservator of Forests a statement showing the full details of the trees standing on such lands at the disposal of Government as may hereafter be granted for permanent cultivation, under the Land Assignment Act and the rules framed thereunder.
On receipt of such statement, the Chief Conservator of Forests will take appropriate action for the disposal of such tree growth within the period allowed under Section 99 of the Forest Act.
272 The Travancore Cochin Forest Act 1951 was repealed by the Kerala Forest Act, 1961 but Section 85(3) of the said Act saves the rules framed under the repealed Act.
It is thus obvious that the rules reproduced above were holding the field at the relevant time.
The trial Judge primarily relied on these rules for holding that the Government was justified in demanding Kuttikanam from the respondent company.
The High Court, however, did not take into consideration these rules while interpreting clause 7 of Exhibit P 64.
We agree with the findings of the trial court to the effect that the above quoted rules read with clause 7 of Exhibit P 64 empowers the State Government to levy and demand Kuttikanam from the respondent company in respect of timber taken out of the limits of the Concession area.
Mr. Parasaran invited our attention to a letter dated May 21, 1932 (Exhibit P 4) from Chief Secretary to Government to the General Manager of the respondent company.
The letter reads as under: "With reference to your letter dated the 25th January, 1928 regarding the payment of seigniorage on reserved trees felled from the K.D.H.P Company 's Concession Area, I have the honour to inform you that Government accept your view that no seigniorage is due from the Company on trees other than the Royal Trees specifically mentioned in Clause 7 of the Agreement and sanction accordingly." Mr. Parasan contended that the State Government interpreted clause 7 of P 64 to mean that no seigniorage (Kuttikanam) was due from the company on trees other than the Royal Trees specified in the said clause.
He argued that in the face of the Government decision in the above letter the Government could not demand Kuttikanam from the respondent company in respect of the non Royal Trees removed from within the limits of the Concession Area.
We do not agree with the contention of the learned counsel.
The letter re produced above refers to the letter dated January 25, 1928 (exhibit P 3) written by the General Manager of the company to the Government.
The letter P l states as under: "The question arose through the Forest Department claiming seigniorage on certain species of timber, used by this Company within the concession area for building purposes, and which have been reserved under the Forest Regulation.
273 The letter also states as under: A ". .
I think it advisable that the whole question of Timber Rights in the Concession should be considered and settled if possible.
" It is no doubt correct that while focusing the controversy in respect of the timber used by the company within the Concession Area the General Manager dealt with the larger question of timber rights in the Concession Area but reading the two letters P 3 and P 4 together the only conclusion which could be reached is that the letter P 4 was with respect to the use of timber by the company within the Concession Area.
The letter P 4 cannot be read to mean that no Kuttikanam was leviable on the timber removed by the respondent company outside the Concession Area.
In any case the wording of clause 7 of P 64 is clear and unambiguous.
The Government letter P 4 is to be read in the light of clear phraseology of clause 7 and not the vice versa.
We allow the appeal and set aside the judgment of the High Court.
We uphold and approve the judgment and findings of the Trial Court.
The suit of the respondent plaintiff is dismissed with costs which we quantify as Rs.5,000 R. N. J. Appeal allowed.

summary:
The dispute between the parties is regarding the ownership rights and right of removal of timber clear felled from 150 acres of jungle area in Kallar Valley in the erstwhile Travancore territory of Kerala State commonly called the Kanan Devan Hills Concession area over which the Poonjar Raja held free hold proprietary rights under the suzerainty of Travancore State.
By a deed dated July 11, 1877 called the 'First Concession ' (Exhibit P 1) the Raja conveyed the concession area with all the Hills and Forests to one J.D. Munro for a certain cash consideration and a deferred perpetual annual payment from 1884 onwards.
This was followed by another deed (exhibit P 2) between the same parties reiterating all the original terms.
This grant to Munro was ratified by the Travancore Government by a deed dated November 28, 1878 (Exhibit P 62).
Munro in turn assigned the area to the North Travan core Land Planting & Agricultural Society Ltd. Later an agreement was executed between the Travancore Government and the Society in August 1886 (Exhibit P 64).
In 1899 the entire territory comprising the Kanan Devan Hills including the concession area was declared part of Travancore State.
After several transfers the concession area finally came to be vested in the Respondent Company in virtue of a Deed dated July 16, 1900.
Somewhere in 1963 the Respondent Company clear felled about 150 acres in the concession area for cultivation and sought permission from the State Government for grant of free passes to carry the felled timber out of the concession area.
The Government by order dated 25.11.1966 informed the company that it could not take out the timber 262 from the concession area without payment of Kuttikanamin terms of the deeds of conveyance/ratification.
Thereupon the company filed a suit against the State praying inter alia for a declaration claiming full ownership, title and right to remove the timber without payment of Kuttikanam, a mandatory injunction directing the defendants to grant free passes for removal of the timber and a prohibitory injunction to restrain it from taking any further steps under its order dated 25.11.1966.
On the interpretation of Exhibits P 1, P 2, P 62 and P 64 the trial court came to the findings that the company did not acquire absolute proprietary rights over the concession area or the trees and timber.
It also held that the Government was justified in demanding Kuttikanam in terms of the Rules framed under the Travancore Cochin Forest Act, 1951.
Accordingly the suit was dismissed.
The Company preferred an appeal to the High Court which was allowed and the decree of the Trial Court set aside.
The decision of the High Court has been challenged by the State in this appeal by way of special leave.
This court while allowing the appeal and setting aside the judgment of the High Court, HELD: The respondent company did not acquire absolute proprietary rights over the Concession Area or the trees and the timber therein.
The company only acquired the right to fell the trees and use the timber subject to the restrictions imposed in clause 7 of the agreement Exhibit P 64.
Since the respondent company has no right to remove the timber beyond the limits of the Concession Area, the State Government was justified in refusing to permit free transportation of timber from the said area.
[269C] Clause 7 states that no unworked timber or articles manufactured therefrom shall be carried outside the limits of the grant except in conformity with the rules of the forest department for the time being in force.
[270D] The Government of Kerala, in exercise of its rule making power under Section 93 of the Travancore Cochin Forest Act, 1951 had by a notification dated July 9, 1958 framed rules regulating the levy of Kuttikanam on trees standing on Government land.
[270E] The rules were holding the field at the relevant time and the Government was justified in demanding Kuttikanam from the Company.
[272A B] 263


judgement:
minal Appeal No. 118 of 1958.
Appeal from the judgment and order dated May 14, 1958, of the Allahabad High Court in Criminal Revision No. 1594 of 1956, arising out of the judgment and order of the Court of Additional Sessions Judge at Kanpur in Criminal Revision No. 13 of 1956.
C. P. Lal, for the appellant.
640 Gopi Nath Dikshit, for the respondent.
November 24.
The Judgment of the Court was delivered by VENKATARAMA AIYAR, J.
The facts leading up to this appeal are these: On April 26, 1954, the appellant was arrested by the Sisamau Police for offences under sections 420, 482,483, 485 and 486 of the Indian Penal Code on the allegation that he was in possession of 25 packets of Chand Chhap Biri, which were alleged to bear counterfeit trade marks.
On May 26, 1954, one Harish Chandra Jain acting on behalf of Messrs. Mohan Lal Hargovind Das filed a complaint charging that the appellant was in possession of counterfeit bidis, wrappers and labels and praying that a case under the sections above mentioned be registered and investigated.
On that, the Magistrate passed the following order : " section O. Sisamau.
Please investigate and register a case.
" After investigation, the police submitted their chargesheet on September 30, 1954, and summons was ordered to the appellant on July 22, 1955.
On September 17, 1955, the appellant filed an application before the Magistrate wherein he raised a preliminary objection that the proceedings were barred by section 15 of the (4 of 1889), hereinafter referred to as the Act.
That section provides : " No such prosecution as is mentioned in the last foregoing section shall be commenced after the expiration of three years next after the commission of the offence, or one year after the first discovery thereof by the prosecutor, whichever expiration first happens.
" The contention of the appellant was that the offence was discovered on April 26, 1954, when he was arrested and the goods seized, and that, in consequence, the issue of process on July 22, 1955, was beyond the period of one year provided under section 15 of the Act, and that the proceedings should therefore be quashed as barred by limitation.
The Magistrate rejected this contention, and a Revision Petition preferred against this order to the Additional Sessions Judge, Kanpur, 641 shared the same fate.
The appellant then filed a further Revision Petition to the High Court of Allahabad, being Criminal Revision No. 1594 of 1956, and the same was heard along with other similar Revision Petitions by a Bench consisting of James and Takru, JJ.
By their judgment dated May 13, 1958, the learned Judges held that the prosecution commenced when the complaint was presented on May 26, 1954, and that as the discovery was on April 26, 1954, the proceedings were within time under section 15 of the Act.
In view of the importance of the question raised, they granted leave to appeal to this Court under article 134 (1)(c) of the Constitution, and that is how the matter comes before us.
The point for decision is, when does a prosecution commence for purposes of section 15 of the Act, whether on the date when the complaint is preferred, or when the process is issued thereon? The word "prosecution " is not defined in the Act, nor are there any provisions therein bearing on this question.
Now, under the law and apart from statutory prescriptions, a prosecution commences, where it is at the instance of a private prosecutor, when the complaint is preferred.
The position is thus stated in Halsbury 's Laws of England, Vol.
X, 3rd Edn., p. 340, para.
630: " Criminal prosecutions, except where there are statutory provisions to the contrary, may be commenced at any time after the commission of the offence.
A prosecution is commenced, when an information is laid before a justice, or, if there is no information, when the accused is brought before a justice to answer the charge, or, if there is no preliminary examination before a justice, when an indictment is preferred.
" It is further stated there that different statutes provide for various periods of limitation within which a prose cution could be commenced after the commission of the offence, and that three years is the period provided for an offence under the Merchandise Marks, Act, 1887, which corresponds to the .
It is therefore settled law that unless 642 there is something to the contrary in the statute, when a private complaint is presented it is the date of pre sentation thereof that marks the commencement of the prosecution.
Now, what is the nature of the prosecution under section 15 of the Act ? It is relevant in this connection to refer to sections 13 and 14, which run as follows: section 13: ',In the case of goods brought into India ' by sea, evidence of the port of shipment shall, in a prosecution for an offence against this Act or section 18 of the , as amended by this Act, be prima facie evidence of the place or country in which the goods were made or produced.
" section 14(1): " On any such prosecution as is mentioned in the last foregoing section or on any prosecution for an offence against any of the sections of the Indian Penal Code, as amended by this Act, which relate to trade, property and other marks, the Court may order costs to be paid to the defendant by the prosecutor or to the prosecutor by the defendant, having regard to the information given by and the conduct of the defendant and prosecutor respectively.
(2) Such costs shall, on application to the Court, be recoverable as if they were fine.
" The object of the above provisions is to protect the rights of persons who manufacture and sell goods with distinct trade marks against invasion by other persons passing off their goods fraudulently and with counterfeit trade marks as those of the manufacturers.
Normally, the remedy for such infringement will be by action in Civil Courts.
But in view of the delay which is incidental to civil proceedings and the great injustice which might result if the rights of manufacturers are not promptly protected, the law gives them the right to take the matter before the Criminal Courts, and prosecute the offenders, so as to enable them effectively ,and speedily to vindicate their rights.
It is for this, reason that a short period of limitation is provided heir preferring a complaint under a. 15 of the and there is also a special provision for award of costs of the proceedings to or by the complainant.
in Ruppell vs Ponnuswami Tewan (1), the question &rose whether a prosecution launched by the complainant in 1898 in respect of goods sold and marked with what was alleged to be, a counterfeit trade mark in 1893 was in time.
In deciding that it was a barred under section 15 of the Act, the Court observed as follows: Section 15 of the Merchandise Mark,% Act IV of 1889, enacts that no prosecution such as the present shall be commenced after the expiration of one year after the first discovery of the offence by the prosecutor.
The reason for this limitation is clear.
Ordinarily the infringement of a trade.
mark is rather a civil than a criminal wrong, but as civil proceedings may require much time and expenditure to bring them to a conclusion, the Legislature, in its anxiety to protect traders, has allowed resort to the criminal courts to provide a speedy remedy in cases where the aggrieved party is diligent and does not by his conduct show that the case.
is not one of urgency.
if, therefore, the person aggrieved fails to resort to the criminal courts within a year of the offence coming to his knowledge, the law assumes that the case is not one of urgency, and it leaves him to his civil remedy by an action for injunction.
" It will be noticed that the complainant is required to resort to the Court within one year of the discovery of the offence if he is to have the benefit of proceeding under the Act.
That means that if the complaint is presented within one year of such discovery, the requirements of section 15 are satisfied.
The period of limitation, it should be remembered, is intended to operate against the complainant and to ensure ' diligence on his part in prosecuting his rights, and not against the Court.
Now, it will defeat the object of the enactment and de Drive traders of the protection which the law intended to give them, if we were to hold that unless process is issued on their complaint within one year of the discovery of the offence, it should be thrown out.
It will be an unfortunate state of the law if the trader whose rights had been infringed and who takes lip the matter promptly before the Criminal (1) Mad. 488.
644 Court is, nevertheless, denied redress owing to the delay in the issue of process which occurs in Court.
The appellant relies on certain decisions as showing that.
the prosecution must be held to commence only when process is issued and not when complaint is filed.
In Sheik Meeran Sahib vs Ratnavelu Mudali (1), De Rozario vs Gulab Chand Anundjee (2) and Golap Jan vs Bholanath Khettry (3) cited by the appellant, the question was whether an action for damages for malicious prosecution would lie when the complaint was dismissed without notice to the plaintiff.
It was held that the plaintiff could not be held to have been prosecuted unless process was issued to him and that where the complaint was dismissed without such process being issued, there was no prosecution and no action for damages in respect of such prosecution would lie.
These decisions have no bearing on the present question.
In suits for damages for malicious prosecution, one of the points to be decided is, whether the plaintiff was, in fact, prosecuted; and if he was, no question arises as to when the prosecution commenced.
On the other hand, the point for decision in a prosecution under the Act is, not whether there was a prosecution but when it was instituted ; and a question as to whether there was prosecution or not would be wholly foreign to it.
Indeed, in an action for damages for malicious prosecution, when it is held that there was prosecution, that could properly be held to have commenced when the complaint was filed and not when the process was issued.
Vide the observations of Woodroffe, J., in the course of the argument in Golap Jan vs Bholanath Khettry (3) at p. 884.
The decisions in Sheik Meeran Sahib vs Ratnavelu Mudali (1), De Rozario vs Gulab Chand Anundjee (2) and Golap Jan vs Bholanath Khettry (3) therefore do not throw any light on the matter now under consideration.
It may be that these decisions may have to be reconsidered in the light of the recent decision of the Privy Council in Mohamed Amin vs Jogendra Kumar Bannerjee (4), wherein it was observed: (1) Mad.
181 (2) Cal.
(3) Cal.
(4) , 331. 645 " The test is not whether the criminal proceedings have reached a stage at which they may be described as a prosecution; the test is whether such proceedings have reached a stage at which damage to the plaintiff results.
" Vide also Ramaswami Iyer on The Law of Torts, 4th Edn., p. 318.
The decision in R. R. Chari vs The State of Uttar Pradesh (1) was relied on by the appellant as showing that until process was issued, there was no prosecution.
There, the appellant was proceeded against under the provisions.
of the Prevention of Corruption Act No. 2 of 1947.
The Deputy Magistrate, Kanpur, issued a warrant for his arrest on October 22, 1947.
Thereafter, on December 6, 1948, the prosecution obtained the necessary sanction under the Act.
The contention of the appellant was that the prosecution must be held to have been instituted against him on October 22, 1947, when he was arrested, that as no sanction for his prosecution had been obtained at that time, the proceedings were bad, and that the defect was not cured by sanction being obtained subsequently on December 6, 1948.
This Court held that under the special provisions of the Prevention of Corruption Act, the police had the power to arrest the appellant pending investigation and that was all the effect of the order of the Deputy Magistrate dated October 22, 1947, and that therefore there was no prosecution on the date of the arrest.
But here, we are dealing with a private complaint, and as pointed out at p. 315 of the Report, section 190(1)(a) of the Criminal Procedure Code would apply to such cases, and the Magistrate must be held to have taken cognizance when the complaint was received.
This decision, in our opinion, does not assist the appellant; nor does the decision in Gopal Marwari vs King Emperor (2).
There, considering sections 200 and 202 of the Criminal Procedure Code, the learned Judges observed that there was a distinction between initiation of proceedings before the Magistrate and his taking cognizance of the same.
It is Sufficient to say that that is not (1) ; (2) Pat 433. 646 the question 'which we have got to decide here, and on the language of section 15 of the Act, which is what we are concerned with in this appeal, all that is required is that a private 'prosecutor ' should prefer this complaint within one year of the discovery of the offence ', and if that is done, ' the bar under that section cannot apply.
We agree with the decision of the learned Judges of the Court.
below that the, proceedings are not barred by section 15 of the Act.
This appeal is accordingly dismissed.
Appeal dismissed.

summary:
On April 26, 954, the appellant was arrested for offences under sections 420, 482, 483, 485 and 486 Indian Penal Code and bidis alleged to bear counterfeit trade marks were seized from him.
On this a complaint was filed on May 26, against the appellant that he was in possession of counterfeit bidis, wrappers and labels.
After investigation, the police submitted a charge sheet on September 30, 1954, and summons was ordered to the appellant on July 22, 1955.
The appellant raised a preliminary objection before the Magistrate that the proceedings were barred by section 15 of the Indian Merchandise Marks Act.
He contended that the offence was discovered on April 26, 1954, when he was arrested and the prosecution which commenced with the issue of process against him on July 22, 1954, was beyond the period of one year provided by section 15.
Held, that the prosecution was not barred by section 15 as the prosecution commenced on the presentation of the complaint which was within one year of the discovery of the offence and not on the issuing of the process.
It is settled law that unless there is something to the contrary in the statute, when a private complaint is presented it is the date of presentation thereof that marks the commencement of the prosecution.
The period of limitation is intended to operate against the complainant and not against the Court.
It will defeat the object of the Act and deprive traders of the protection of the law if it were held that the complaint should be thrown out unless process was issued within one year.
of the discovery of the offence.