judgement:
4,36 and 37 of 1958.
Petition under article 32 of the Constitution of India for enforcement of Fundamental Rights.
R. Ganapathy Iyer and K. L. Hathi, for the petitioners.
C. K. Paphtary, Solicitor General of India, B. R. L. Iyengar an(! P. M. Sen, for the respondents.
280 1961.
March 14.
The Judgment of the Court was delivered by KAPUR, J.
These are three petitions under article 32 of the Constitution challenging the imposition of sales tax on betel leaves by the Sales Tax Officer, Akola.
The question raised in all the three petitions is the same and can conveniently be disposed of by one judgment.
The petitioners in the three petitions are dealers in betel leaves at Akola, now in the State of Maharashtra and at the relevant time in the State of Madhya Pradesh.
The Assistant Sales Tax Officer at Akola assessed the petitioners under the provisions of the C. P. & Berar Sales Tax Act, 1947 (Act XXI of 1947), hereinafter termed the "Act" to the payment of gales tax as follows: Writ Petition period Amount No. W.P. No. 4/58 7 11 53 to 26 10 54.
Rs. 1882 9 0 & 27 10 54 to 14 11 55.
Rs. 1885 13 0 W.P. No. 36/58 27 10 54 to 26 10 55.
Rs. 1890 3 0 W.P.
No. 37/58 27 10 54 to 14 11 55.
Rs. 3530 4 0 The petitioners in W. P. Nos. 4 and 36 did not appeal under section 22 of the Act but the petitioner in W. P. No. 37 did appeal under that section.
As he did not deposit the amount of tax the petition was dismissed.
He then filed a petition under article 226 in the High Court of Nagpur but that petition was withdrawn and therefore no decision was given on the merits of the case.
In all the petitions the submission of the petitioners is that the order demanding tax was without authority of law inasmuch as betel leaves were not taxable under section 6 read with the second Schedule of the Act.
The imposition of the tax, it is alleged.
is an infringement of the petitioners ' right to carry on trade 281 or business guaranteed under article 19(1)(g) of the Con stitution and the prayer is for the issue of a writ of certiorari quashing the order of the Assistant Sales Tax Officer and for prohibition.
Section 6 of the Act under which the exemption is claimed provides: S.6(1) "No tax shall be payable under this Act on the Sale of goods specified in the second column of Schedule II, subject to the conditions.
and exceptions, if any, set out in the corresponding entry in the third column thereof (2)The State Government may, after giving by notification not less than one month 's notice of their intention so to do, by a notification after the expiry of the period of notice mentioned in the first notification amend either Schedule,, and thereupon such Schedule shall he deemed to be amended accord ingly." Thus under the Act all articles mentioned in the Schedule were exempt from Sales Tax and articles not so specified were taxable.
In the Schedule applicable there were originally two items which are relevant for the purposes of the case.
They were items Nos. 6 and 36: Item 6 Vegetables Except when sold in sealed containers.
Item 36 Betel leaves.
The Schedule was amended by the C. P. & Berar Sales Tax Amendment Act (Act XVI of 1948) by which item No. 36 was omitted.
It is contended that in spite of this omission they were exempt from Sales Tax as they are vegetables.
The intention of the legislature in regard to what is vegetables is shown by its specifying vegetables and betel leaves as separate items in the Schedule exempting articles from Sales Tax.
Subsequently betel leaves were removed from the Schedule which is indicative of the legislature 's intention of not exempting betel leaves from the imposition of the tax.
But it was submitted that betel leaves are vegetables and therefore they would be exempt from Sales Tax under item 6.
Reliance was placed on the 36 282 dictionary meaning of the word "vegetable" as given in Shorter Oxford Dictionary where the word is defined as "of or pertaining to, comprised or consisting of, or derived, or obtained from plants or their parts".
But this word must be construed not in any technical sense nor from the botanical point of view but as understood in common parlance.
It has not been defined in the Act and being a word of every day use it must be construed in its popular sense meaning "that sense which people conversant with the subject matter with which the statute is dealing would attribute to it.
" It is to be construed as understood in common language; Caries on Statute Law, p. 153 (5th Ed.).
It was so ' held in Planters Nut Chocolate Co. Ltd. vs The King (1).
This interpretation was accepted by the High Court of Madhya Pradesh in Madhya Pradesh Pan Merchants ' Association, Santra Market, Nagpur vs The State of Madhya Pradesh (Sales Tax Department) (2) where it was observed: "In our opinion, the word "vegetables" cannot be given the comprehensive meaning the term bears in natural history and has not been given that meaning in taxing statutes before.
The term "vegetables" is to be understood as commonly understood denoting those classes of vegetable matter which are grown in kitchen gardens and are used for the table.
" In that case the word "vegetables" was construed and in our opinion correctly construed in relation to the very provisions of the Act which are now in controversy before us.
In cases under the U. P. Sales Tax Act betel leaves have been held not to be within the expression "green vegetables"; Brahma Nand vs The State, of Uttar Pradesh(3); Firm Shri Krishna Chaudhry V. Commissioner of Sales Tax (4).
In Bhairondon Tolaram vs The State of Rajasthan (5) they were held not to be plants and in Kokil Ram & Sons vs The State of Bihar (6), it was held that vegetables meant plants cultivated for food and Paw are not foodstuffs.
in Dharamdas Paul vs Commissioner of Commercial (1) 389.
(3) [1956]7 S.T.C 2o6.
(5) [1957] 8 S.T.C. 798.
(2) [1956]7 S.T.C. 99, 102.
(4) [1956] 7 S.T.C. 742.
(6) [1949]1 S.T.C. 217 283 Taxes also they were held not to be vegetables which specifically meant Sabzi, Tarkari and Sak.
Therefore &part from the fact that the legislature by using two distinct and different items i.e. item 6 "vegetables" and item No. 36 "betel leaves" has indicated its intention, decided cases also show that the word "vegetables" in taxing statutes is to be understood as in common parlance i.e. denoting class of vegetables which are grown in a kitchen garden or in a farm and are used for the table.
In our view, betel leaves are not exempt from taxation.
Those petitions therefore fail and are dismissed with costs.
One hearing fee.
Petitions dismissed.

summary:
The petitioners who were dealers in betel leaves were asses sed to sales tax by the Assistant Sales Tax Officer under the provisions of the C. P. and Berar Sales Tax Act, 1947.
The contention of the petitioners was that under section 6 read with the second schedule of the Act betel leaves were not taxable.
Under section 6 of the Act articles mentioned in the said Schedule were exempt from Sales Tax and articles not mentioned were taxable.
There were two items in the Schedule, namely, item 6, "vegetables", and item 36, "betel leaves", but subsequently item No. 36 was omitted by an amendment of the Act.
Held, that the use of two distinct and different items i.e., "vegetables" and "betel leaves" and the subsequent removal of betel leaves from the Schedule were indicative of the Legislature 's intention of not exempting betel leaves from taxation.
The word "vegetable" must be interpreted not in a technical sense but in its popular sense as understood in common language i.e., denoting a class of vegetables which are grown in a kitchen garden or on a farm and are used for the table.
Planters Nut Chocolate Co. Ltd. vs The King, (1952) 1 Dom.
L.R. 385, Madhya Pradesh Pan Merchants ' Association, Santra Market, Nagpur vs The State of Madhya Pradesh (Sales Tax Departmwnt) [1956] 7 S.T.C. 99, Bhairondon Tolaram vs The State of Rajasthan, [1957] 8 S.T.C. 798, Kokil Ram & Sons vs The State of Bihar, [1949] 1 S.T.C. 217 and Dharam Das Paul vs The Commissioner of Commercial Taxes, [1958] 8 S.T.C. 194, considered.
Brahma Nand vs The State of Uttar Pradesh, [1956] 7 S.T.C. 206 and Firm Shri Krishna Chaudhry vs Commissioner of Sales Tax, [1956] 7 S.T.C. 742, referred to.


judgement:
Appeal No. 283 of 1960.
Appeal from the judgment and decree dated, November 20, 1958, of the Allahabad High Court (Lucknow Bench) in First Civil Appeal No. 3 of 1956.
C. B. Agarwala and C. P. Lal, for the appellant.
R. Ganapathy Iyer and T. M. Sen, for the respondent.
March 16.
The Judgment of the Court was delivered by DAs GUPTA, J.
The appellant, a clerk in the service of the East Indian Railways was compulsorily ' retired from service with effect from June 30, 1948, on attaining the age of 55 years.
His prayer for further retention in service on the ground that he was entitled to be retained under Rule 2046/2 of the Railway Establishment Code having been rejected he brought the suit which has given rise to this appeal in the court of the Civil Judge, Lucknow, alleging that he was entitled to be retained under the above rule, and the order for compulsory retirement on attaining the age of 55 years was.
void and inoperative in law.
He accordingly prayed for a declaratory decree that the order of his compulsory retirement was illegal and void and for a money decree for, arrears of pay on the basis that he had continued in service.
The main defence was a denial of his right to be retained in service under the rules.
The Trial Court accepted the plaintiff 's contention ' as regards the effect; of the rule, gave him a declaration as prayed for and ' also decreed the claim for money in part.
On appeal the High Court took a different view of Rule 2046 and held that that rule gave the plaintiff no right to continue in service beyond the age of 55 years.
The High Court therefore allowed the appeal.
and dismissed the plaintiffs suit.
Against this decision the 376 plaintiff has preferred the present appeal on a certificate granted by the High Court under article 133(1) (c) of the Constitution.
The main question therefore is whether on a proper interpretation of Rule 2046/2 (a) of the Railway Esta blishment Code, which is identical with the fundamental rule 56 (b) (i), the plaintiff had the hight to be retained in service till the age of 60 years.
It is necessary to mention that the plaintiff 's case that he continued to be efficient even after attaining the age of 55 years has not been disputed by the respondent, the Union of India.
Consequently the question is: assuming the plaintiff so 'continued to be efficient whether he had the right to be retained in service till he attained the age of 60 years.
Rule 2046 (1) of the Code deals with the question of retirement of railway servants other than ministerial and provides that such Railway servant, that is, one who is not a ministerial servant, will be compulsorily retired on attaining the age of 55 years; but may be retained in service after that date "with the sanction of the competent authority on public grounds" which must be recorded in writing.
A further provision is made that he must not be retained after the age of 60 years except in very special circumstances.
Rule 2046/2 deals with cases of ministerial servants.
It has two clauses of which ol.
(b) deals with (i) ministerial servants who entered Government service on or after April 1, 1938, or (ii) who though in Government service on March 31, 1938, did not hold a lien or a suspended lien on a permanent post on that date.
These also, like the Railway servants, who are not ministerial servants have to retire ordinarily at the age of 55 years and cannont be, retained after that age except on public grounds to be recorded in writing and with the sanction of the competent authority; and must not be retained after attaining the age of 60 years except in very special circumstances.
Clause (a) deals with railway ministerial servants other than those who entered Government service on or after April 1, 1938, or those in Government service on March 31, 1938, who, did not hold a lien or a 377 suspended lien on a permanent post on that date.
The exact words of the rule are: "A ministerial servant who is not governed by sub cl.
(b) may be required to retire at the age of 55 years but should ordinarily be retained in service if he continues to be efficient up to the age of 60 years.
He must not be retained after that age except in very special circumstances which must be recorded in writing and with 'the sanction of the competent authority.
" It is obvious that the rule as regards compulsory retirement is more favourable to ministerial servants who fall within el.
(a) of rule 2046/2 than those who fall under el.
(b) of the same rule or railway servants who are not ministerial servants.
For whereas in the case of these, viz., railway servants Who are not ministerial servants, and ministerial servants under cl.
(b) retention after the age of 55 itself is intended to be exceptional to be made on public grounds which must be recorded in writing and with the sanction of the competent authority, in the case of ministerial servants who fall under cl.
(a) of Rule 2046/2 their retention after the age of 60 is treated as exceptional and to be made in a similar manner as retention in the case of the other railway servants mentioned above after the age of 55.
It is clear therefore that whereas the authority appropriate to make the order of compulsory retirement or of retention is given, no discretion by itself to ' retain a ministerial railway servant under cl.
(b) if he attains the age of 55 years, that is not the position as regards the ministerial servants who fall under cl.
The appellant 's contention however goes very Much further.
He contends that in the case of ministerial servants who come within cl.
(a) and after attaining the age of 55 years continue to be efficient it is not even a case of discretion of the appropriate authority to retain him or not but that such ministerial servants have got a right to be retained and the appropriate authority is bound to retain him, if efficient.
The first clause of the first sentence of the relevant 48 378 rule taken by itself certainly gives the appropriate authority the right to require a ministerial servant to retire as soon as he attains the age of 55 years.
The question is: Whether this right is cut down by the second clause, viz., "but should ordinarily be retained in service if he continues to be efficient up to the age of 60 years".
On behalf of the appellant it is urged that the very use of the conjunction "but" is for the definite purpose of the cutting down of the right conferred by the first clause; and that the effect of the second clause is that the right to require the Government servant to retire at 55 is limited only to cases where he does not retain his efficiency; but where he does retain his efficiency the right to retire him is only when he attains the age of 60 years.
We are con strained to say that the language used in this rule is unnecessarily involved; but at the same time it is reasonably clear that the defect in the language creates no doubt as regards the intention of the rulemaking authority.
That intention, in our opinion, is that the right conferred by the first part is not in any way limited or cut down by the second part of the sentence; but the draftsman has thought fit by inserting the second clause to give to the appropriate authority an option to retain the servant for five years more, subject to the condition that he continues to be efficient.
If this condition is not satisfied the appropriate authority has no option to retain the servant; where however the condition is satisfied the appropriate authority has the option to do so but is not bound to exercise the option.
If the intention had been to out down the right conferred on the authority to retire a servant at the age of 55 years the proper language to express such intention would have been may be required to retire at the age of 55 years provided however that he shall be retained in service if he continues to be efficient up to the age of 60 years" or some such similar, words.
The use of "should ordinarily be retained in service" is sufficient index to the mind of the rule making authority that the right conferred by the first clause of the sentence remained.
Leaving out for the present the word "ordinarily" the rule would read thus: 379 "A ministerial servant who is not governed by sub clause (b) may be required to retire at the age of 55 years but should be retained in service if he continues to be efficient up to the age of 60 years.
" Reading these words without the word "ordinarily" we find it unreasonable to think that it indicates any intention to cut down at all the right to require the servant to retire at the age of 55 years or to create in the servant any right to continue beyond the age of 55 years if he continues to be efficient.
They are much more appropriate to express the intention that as soon as the age of 55 years is reached the appropriate authority has the right to require the servant to retire but that between the age of 55 and 60 the appropriate authority is given the option to retain the servant but is not bound to do so.
This intention is made even more clear and beyond, doubt by the use of the word "ordinarily".
"Ordinarily" means "in the large majority of cases but not invariably".
This itself emphasises the fact that the appropriate authority is not bound to retain the servant after he attains the age of 55 even if he continues: to be efficient.
The intention of the second clause 1 therefore clearly is that while under the first clause the appropriate authority has the right to route the ' servant who falls within clause (a) as soon as he attains the age of 55, it will, at that stage, consider whether or not to retain him further.
This option to retain for the further Period of five years can only be exercised if the servant continues to be efficient; but in deciding whether or not to exercise this option the authority has to consider circumstances other than the question of efficiency also; in the absence of special circumstances he "should" retain the servant; but, what are special circumstances is loft entirely to the authority 's decision.
Thus, after the age of 55 is reached by the servant the authority has to exercise ' its discretion whether or not to retain the servant; and there is no right in the servant to be retained, even if, he continues to be efficient.
Reliance was placed by learned counsel on an observation of Mukherjea, J. (as he then was), in Jai 380 Ram vs Union of India (1) when speaking for the Court as regards this rule his Lordship said: "We think it is a possible view to take upon the language of this rule that a ministerial servant coming within the purview has normally the right to be retained in service till he reaches the age of 60.
This is conditional undoubtedly upon his continuing to be efficient.
We may assume therefore for purposes of this case that the plaintiff had the right to continue in service till 60 and could not be retired before that except on the ground of inefficiency.
" It would be wholly unreasonable however to consider this as a decision on the question of what this rule means.
Dealing with an argument that as the plaintiff under this rule has the right to continue in service till 60 and could not be retired before that except on the ground of inefficiency certain results follow, the Court assumed for the sake of argument that this interpretation was possible and proceeded to deal with the learned counsel 's argument on that basis.
It was not intended to say that this was the correct interpretation that should be put on the words of the rule.
The correct interpretation of Rule 2046 (2) (a) of the code, in our opinion, is that a railway ministerial servant falling within this clause may be compulsorily retired on attaining the age of 55 but when the servant is between the age of 55 and 60 the appropriate authority has the option to continue him in service, subject to the condition that the servant continues to be efficient but the authority is not bound to retain him even if a servant continues to be efficient.
It may be mentioned that this interpretation of the rule has been adopted by several High Courts in India ' [Basant Kumar Pal vs The Chief Electrical Engineer Kishan Dayal vs General Manager, Northern Railway and Raghunath Narain Mathur vs Union of India (4)].
We therefore hold that the High Court was right in holding that this rule gave the plaintiff no right to continue in service beyond the age of 55.
(1) A.I.R. 1954 S.C. 584.
(3) A.I.R. 1954 Punj.
(2) A.I.R. 1956 Cal.
(4) A.I.R. 1953 All.
381 It was next urged by Mr. Aggarwal, though faintly, that the notification of the Railway Board dated October 19, 1948, and the further notification dated April 15, 1952, as a result of which ministerial servants who were retired under rule 2046(2)(a) before attaining the age of 60 after September 8, 1948, have been given special treatment are discriminatory.
It appears that on September 8, 1948, the Government of India came to a decision that no ministerial Government servant to whom the fundamental rule 56(b)(i) applied and who has attained the age of 55 years but has not attained the age of 60 years could be required to retire from service unless he has been given a reasonable opportunity to show cause against the proposed retirement and unless any representation that he may desire to make in this connection has been duly considered.
This decision was communicated to different departments of the Government of India and it was directed that this should be noted "for future guidance".
On October 19, 1948, the Ministry of Railways issued a notification for dealing with cases of retirement of ministerial servants governed by Rule 2046(2)(a) (which corresponded to fundamental rule 56(b)(1) in the manner as directed by the Government of India 's notification dated September 8, 1948.
This notification of October 19, 1948, again made it clear that it had been decided not to take any action in respect of ministerial servants who had already been retired.
Again, in a notification dated April 15, 1952, the Railway Board communicated a decision that "such of the ministerial servants who had been retired after 8th September, 1948, but before attaining the age of 60 years without complying with article 311 (2) of the Constitution should be taken back to duty" under certain conditions.
The appellant 's contention is that the denial of this advantage given to other ministerial servants falling within rule 2046(2)(a) who had been retired after September 8, 1948, is unconstitutional.
We do not think that this contention has any substance.
What happened was that on September 8,1948, the Government took a decision that ministerial servants should 382 not be retired under the rule in question on attainment of 55 years of age if they were efficient without giving them an opportunity of showing cause against the action and accordingly from that date it changed its procedure as regards the exercise of the option to retire servants between the age of 55 and 60.
The decision that nothing should be done as regards those who had already retired on that date cannot be said to have been arbitrarily made.
The formation of a different class of those who retired after September 8, 1948, from those who had retired before that date on which the decision was taken is a reasonable classification and does not offend article 14 of the Constitution.
This contention is therefore also rejected.
The High Court was therefore right in our opinion in holding that there was a reasonable classification of the ministerial servants who had been retired under Rule 2046 (2) (a) on attaining the age of 55 into two classes: one class consisting of those who had been retired after September 8, 1948, and the other consisting of those who retired up to September 8, 1948.
There is, therefore, no denial of equal protection of laws guaranteed by article 14 of the Constitution.
In the result, the appeal fails and is dismissed.
There will be no order as to costs, as the appellant is a pauper.
We make no order under Order XIV, rule 9 of the Supreme Court Rules.
Appeal dismissed.

dataset_name: IN-Abs

summary:
The appellant who was a clerk under the East Indian Railways was compulsorily retired from service on attaining the age of 55 years.
His prayer for further retention in service having been rejected he filed a suit alleging that he was entitled to be retained in service up to the age of 60 years under Rule 2046 (2)(a) of the Railway Establishment Code, which runs as follows: "Clause (a) A ministerial servant who is not governed by sub cl.
(b) may be required to retire at the age of 55 years but should ordinarily be retained in service if he continues to be efficient up to the age of 60 years.
He must not be retained after that age except in very special circumstances which must be recorded in writing and with the sanction of the competent authority.
" His suit was decreed by the Trial Court but the High Court reversed it holding that the plaintiff appellant had no right to continue in service beyond the age of 55 years.
On appeal with the certificate of the High Court.
Held, that the correct interpretation of Rule 2046(2)(a) is that a railway ministerial servant falling within this clause may be compulsorily retired on attaining the age of 55 but when the servant is between the age of 55 and 6o years the appropriate authority has the option to continue him in service, subject to the condition that the servant continues to be efficient but the authority is not bound to retain him even if he continues to be efficient.
This rule does not give the servant a right to be retained in service beyond the age of 55 years even if he continues to be efficient.
jai Ram vs Union of India, A.I.R. 1954 S.C. 584, explained.
Basant Kumar Pat vs The Chief Electrical Engineer, A.I.R. , Kishan Dayal vs General Manager, Northern Railway, A.I.R. 1954 Punj.
245 and Raghunath Narain Mathur vs Union of India, A.I.R. 1953 All. 352, approved.
375 The formation by the Railway Board of two classes of ministerial servants, namely, one of, those who retired after September 8, 1948, and the other of those who had already retired before that date was a reasonable classification and (lid not offend article 14 of the Constitution.


judgement:
Appeal No. 752 of 1957.
Appeal from the judgment and decree dated January 8, 1954, of the Madras High Court in Second Appeal No. 312 of 1949.
A. V. Viswanatha Sastri and P. V. B. Tatachari, for the appellant.
341 P.Somasundaram and T. Satyanarayana, for the respondents.
March 16.
The Judgment of the Court was delivered by WANCHOO, J.
This appeal on a certificate granted by the Andhra Pradesh High Court raises the question of the interpretation of section 44 B(1) of the Madras, Hindu Religious Endowments Act No. II of 1927 (hereinafter called the Act).
The point arises in this way.
The property in dispute was originally granted in inam to the ancestors of the predecessors in interest of the plaintiffs respondents for the performance of parak service in the pagodas (temples) of village Panyam in Nandyal Taluk of the Kurnool District.
The grantees of the land in this inam alienated a considerable portion of it and also ceased to perform the parak service.
In consequence, the trustees of the temples at Panyam applied.
to the Sub Collector under section 44 B (2) (a) (i) and (ii) of the Act for the resumption of the lands and their regrant to the temples on the ground that the holders of the inam had alienated the property and had failed to perform the service required of them.
An inquiry was conducted into these allegations, and it was held by the Revenue Divisional Officer, Nandyal, that the inam had been granted on the condition of parak service being rendered and that there had been breach of the condition on failure to perform the service and also that the lands comprised in the inam had been alienated in a manner falling within section 44 B (2) (a) (i) of the Act.
On these findings the resumption of the inam lands was ordered and the inam was re granted to the temples in Panyam village.
The alienees took the matter in appeal to the Collector but failed.
Thereupon they filed the suit out of which the present appeal has arisen; and their main contention was that.
the revenue authorities had no jurisdiction to order the resumption of the inam under section 44 B.
The suit was resisted by the trustees who were defendants to it and their case was that the, inam was a religious service inam in the sense of being emoluments for the performance of service and 342 alternatively that even if the grant was a personal inam, burdened with the performance of parak service, the grant was conditional on the performance of the service and as there was breach of this obligation, the resumption and re grant were justified under section 44 B. Certain preliminary facts are not in dispute now.
It has been found by all the courts that the inam grant comprised both the warams.
It has also been found that the grant to the inamdar was personal to him though burdened with parak service and not a service inam in the sense of the inam constituting emoluments of any office.
On the finding that the inam was a personal inam burdened with service to the temple the trial court held that the case did not fall within section 44 B of the Act.
On appeal the district court confirmed the decree of the trial court.
In the High Court on second appeal the finding as to the inam being of both warams was not contested and it was conceded that it was a personal inam burdened with service.
The only question that was agitated there was whether the case would fall within the four corners of section 44 B even if the inam which was granted in the present case was, a personal inam of both warams burdened with service to the temple.
The High Court held against the trustees and dismissed the appeal.
Thereupon the trustees who are the appellants before us applied for a certificate which was granted to them; and that is how the matter has come up before us.
Section 44 B (1) is in these terms: "Any exchange, gift, sale or mortgage, and any lease for a term exceeding five years, of the whole or any portion of any inam granted for the performance of a charity or service connected with a math or temple and made, confirmed or recognised by the British Government, shall be null and void.
" The question for consideration is whether a personal inam burdened with service to a temple can be said to come within the meaning of the words "any inam granted for the performance of a service connected with a temple".
It is urged that the words used in section 44 B (1) are of very wide import and any personal 343 grant of land howsoever large, if it is burdened with some service to a temple howsoever small, would be within the meaning of these words and would therefore come within the terms of s.44 B (1).
The High Court has repelled this wide construction of the words used in section 44 B (1), and we think rightly.
The distinction between a grant for an office to be remunerated by the use of land and a grant of land burdened with service is well known in Hindu law.
The former is a case of a service grant and is resumable when the service is not performed.
The latter is not a service grant as such but a grant in favour of a person though burdened with service and its resumption will depend upon whether the circumstances in which the grant was made establish a condition that it was resumable if the service was not performed: (see Shrimant Lakhamgouda Basavprabhu Sardesai vs Raosaheb Baswantrao alias Annasaheb Subedar and Others (1)).
The question therefore is whether section 44 B covers only the first type of grant, (namely, a service grant) and not a personal grant burdened with service.
Prior to the introduction of section 44 B in the Act, the enforcement of a condition of a grant in favour of charitable and religious institutions in Madras was by taking recourse to Board 's Standing Order 54.
Under para.
1 of this Order, a duty was laid on the revenue officers to see that inams confirmed by the Inam Commissioner for the benefit of or for services to be rendered to any religious and charitable institution are not enjoyed without the terms of the grant being fulfilled.
Under para.
2 thereof, religious and charitable inams were liable to be resumed on the ground that the whole or a portion of the land had been alienated or lost to the institution or service to which it once belonged or that the terms of the grant were not observed.
Provision was also made in the Order for the authorities which would exercise the power to resume.
Further provisions in that Order show that the intention normally was not to dispossess the inamdar even in the event of failure to perform the conditions of the grant but the land was subjected to (1) (1931) LXI M.L.J. 449.
344 full assessment and the assessment was made available to the institution in lieu of the service lost.
In the case of personal inams burdened with service in particular what was usually resumed in the event of nonperformance of service with or without alienation was that portion of the grant which represented the value of the service burdened and not that which was personal and there was no injustice in this course for as we have already said a personal inam burdened with service was granted to an individual for himself though, he was required to perform certain services to the temple.
Therefore, in case he failed to do so there might be resumption of such portion of the inam as would represent the burden of the service leaving the rest to him.
It is in this background that we have to examine section 44 B (1) introduced in the Act in 1934 and see whether personal inams burdened with service are included within its ambit.
It may be mentioned that on the introduction of section 44 B (1) in the Act.
, B.S.O. 54 was amended and religious and charitable inams which were all governed till then by it were divided into two classes, namely (a) inams granted for the performance of a charity or service connected with a Hindu math or temple; and (b) inams not falling under class (a).
Inams falling under class (a) were to be governed by the provisions of the Act while inams falling under class (b) were to be governed by B.S.O. 54 as heretofore.
This amendment would also show that all religious inams, i.e., inams which had some connection howsoever slight with a temple or other religious institution were not to be governed by section 44 B and only those inams which were granted for the performance of a charity or service connected with a Hindu math or temple wore to be dealt with under section 44 B while others would still be governed by B.S.O. 54.
We therefore agree with the High Court that this history affords a clue to the interpretation of section 44 B (1) and suggests that though the words used in section 44 B are open to a wide interpretation, the intention was to 345 bring within its purview only those inams which were granted directly to the temple and also those inams which were granted for the performance of a charity or service connected with a math or temple, i.e., service inams or such inams the whole income of which was for charity and not those inams which were personal inams though burdened with some service to a temple or math.
As we have already said the land granted under a personal inam burdened with service may be very large and the service expected may be very slight, and it could not be the intention of the legislature when it enacted section 44 B (1) that large personal inams with slight service attached to them should be resumed and re granted to the temple under section 44 B (1) for failure to perform the service with which the grant was burdened.
It would make no difference to the validity of this argument even if the service attached absorbed a larger portion of the inam leaving only a smaller portion to the grantee.
This conclusion is in our opinion enforced if we look at el.
(iii) of section 44 B (2)(a) which permits resumption of an inam on the ground that either the math or temple has ceased to exist or the service in question has in any way become impossible of performance.
Now it could not be the intention of the legislature, where an inam was granted as a personal inam though burdened with some service to a temple or math, that such inam should be resumed simply because the math or temple has ceased to exist or for some other reason the service has become impossible of performance.
The nature of a personal inam burdened with service is that it is meant for the individual to whom it is granted though the individual is required to perform some service to the temple also.
The legislature could not have intended when it enacted section 44 B (2)(a)(iii) that even such an inam should be resumed when the math or temple ceases to exist.
But this would be the result if the wide interpretation contended for by the appellants is accepted.
In such a case obviously the personal portion of the grant has to be separated from the service portion 44 346 and if the service is not performed it is only the service portion that is liable to resumption.
Further if we look at section 44 B (2)(f)(i), it provides that where an inam is resumed under section 44 B (1) it shall be re granted as an endowment to the temple or math concerned In the case of a personal inam burdened with service it will mean that if the service is not performed the whole inam would be liable to resumption and would be re granted to the temple, though the inam was granted to an individual and the service with which it was burdened might have been 'slight, the remaining income of the inam being intended as a personal grant to the individual.
Therefore when section 44 B(2)(f)(i) provides for re grant of the resumed inam to the temple it presumes that the whole of the inam resumed was meant for service of the temple and there was no element of personal grant in it.
It is on that basis that we can understand the re grant of the resumed inam to the temple, the idea behind the word "re grant" being that originally also it was granted for the temple though as a service inam.
Similarly, section 44 B(2)(f)(ii) provides that where the math or temple has ceased to exist and an inam is resumed on that ground it shall be re granted as an endowment to the Board for appropriation to such religious, educational or charitable purposes not inconsistent with the objects of such math or temple, as the Board may direct.
Here again it seems to us that the legislature could not have intended that a personal inam granted to an individual though burdened with service should be resumed when the temple has ceased to exist and the service could not be performed and should be taken over by the Board as an endowment for such purposes as the Board may direct, Such a provision would completely overlook the personal part of a personal inam burdened with service.
Therefore, the view taken by the High Court that section 44 B(1), though on a wide interpretation it might also include personal inams burdened with service, is really confined to inams directly granted to the temple or service inams.
for the purpose of a temple or math or inams the whole of the income of which 347 is meant for charity and does not include personal inams burdened with service, is correct.
Such inams would continue to be dealt with under B.S.O. 54, class (b) as introduced by the amendment to that Order.
In this view, there is no force in this appeal and it is hereby dismissed with costs.
Appeal dismissed.

summary:
The property in dispute was granted in inam to the ancestors of the predecessors in interest of the plaintiff respondents for the performance of parak service in certain temples but the grantees alienated considerable portion of the property and ceased to perform the parak service.
On being moved by the trustees under section 44 B(2)(a)(i) and (ii) of the Madras Hindu Religious Endowments Act, 1927, the revenue authorities after holding an enquiry ordered resumption of the inam lands and regranted them to the temple.
The alienees thereupon filed a suit in which their main contention was that the revenue authorities had no jurisdiction to order the resumption of the inam under S.44 B of the Act which is in these terms "Any exchange, gift, sale or mortgage and any lease for a term exceeding five years, of the whole or any portion of any inam granted for the performance of a charity or service connected with a math or temple and made, confirmed or recognised by the British Government, shall be null and void.
" Both the trial court and the High Court on appeal held that the inam was a personal inam burdened with service to the temple and the case did not fall under section 44 B of the Act.
On appeal by the trustees with a certificate of the High Court, Held, that the distinction between a grant for an office to be remunerated by the use of land and a grant of land burdened with service is that the former is a case of service grant and is resumable when the service is not performed; the latter is not a service grant as such but a grant in favour of a person though burdened with service and its resumption will depend upon whether the circumstances in which the grant was made establish a condition that it was resumable if the service was not performed.
Shrimant Lakhamgouda vs Raosaheb Baswantrao, (1931) LXI M.L.J. 449, referred to.
Though on a wide interpretation section 44 B(1) might also include personal inams burdened with service it is really confined to inams directly granted to the temple or service inams for the purpose of a temple or math or inams the whole income of which is meant for charity and does not include personal inams burdened with service.
Such inams would continue to be dealt with under Board 's Standing Order 54 class (b) as introduced by the amendment to that order.


judgement:
Appeals Nos. 125 to 129 of 1957.
Appeals by special leave from the judgment and decree dated October 7, 1952, of the Bombay High Court in Second Appeals Nos.
601 to 605 of 1952.
S.T. Desai, Avadh Behari and B. P. Maheshwari, for the appellants.
A.V. Viswanatha Sastri and A. G. Ratnaparkhi, for the respondents.
March 14.
The Judgment of the Court was delivered by SHAH, J.
These five appeals raise a common question about the validity of Rule 2C framed by the respondent the Municipality of Barsi under section 58(j) of the Bombay Municipal Boroughs Act, 1925 hereinafter called the Act.
The Lokmanya Mills hereinafter called the appellants are a company registered under the Indian Companies Act holding an expensive area of land City Survey No. 2554 within the Municipal Borough on which are constructed buildings of the factory, ware houses, bungalows and other structures appurtenant to the factory.
The respondent, a Borough Municipality constituted under the Act is by section 73, 308 entitled to levy a rate on lands and buildings and also a water rate.
Under the rules framed by the Municipality house tax and water tax were levied on buildings and non agricultural lands on their annual letting value at uniform rates whether the purpose was residential, business or manufacturing.
In 1944, the Municipality resolved to enhance the assessment of lands and buildings within its area.
After some correspondence with the Commissioner, Central Division, the General Body of the Municipality resolved that the rental value for leaving rates on mills and factories within its limits be fixed at Rs. 40 for every 100 square feet.
Notices of this resolution under section 75(b) of the Act were issued and objections to the proposed enhancement were invited from the taxpayers and after obtaining the approval of the Government of Bombay, the new rules were made operative from April 1, 1947.
The rules relevant for the purposes of these appeals are: Rule 2A: "The assessment of house tax on all lands, buildings and non agricultural lands, other than Government, buildings coming under Proviso A of section 73 of the Bombay Boroughs Act of 1925, at rates mentioned in the Schedule attached to these rules." Rule, 2B: In case Government buildings coming under Proviso A of section 73 of the Bombay Boroughs Act are used beneficially, the assessment of such buildings shall be made as specified in sub section 2 and 3 of section 74.
Rule 2C: As regards Mills, factories and buildings relating thereto, the annual letting value shall be fixed at Rs. 40 per 100 square feet or part thereof for every floor.
, ground floor or cellar and the tax shall be assessed on the said annual letting value, at the ordinary rate.
Explanation: The words "buildings pertaining thereto" include buildings in the compound of the Mills such as ware houses, godowns, shops of the mills etc.
but does not include residential buildings that is to say bungalows and out houses.
Note: Assesstnent shall be made at the ordinary 309 rate on buildings which are not taxed under rule 2C above.
The Municipality prepared an assessment list under the new scheme of taxation in respect of factory buildings and buildings relating thereto and issued notices of demand calling upon the appellants to pay house tax and water tax newly assessed thereon.
The appellants paid under protest the tax demanded, and filed five suits in the 'court of the, Civil Judge, Junior Division of Barsi to recover the amounts levied by the Municipality in excess of the amounts due under the old scheme.
In all these suits, the principal issue raised was about the validity of rule 2C framed by the Municipality for levy of rates "on Mills, Factories and other buildings relating thereto".
The trial court held that rule 2C was valid and within the competence of the Municipality and dismissed the suits for refund of house tax and water tax.
The District Court at Sholapur in appeal declared rule 2C "illegal and ultra vires" and by injunction restrained the Municipality from making any claim or demand for house tax and other taxes from the appellants on the basis of them rule.
The High Court of Judicature at Bombay, set aside the decree of the District Court disagreeing with the view that rule 2C was ultra vires.
In these appeals filed with special leave against the judgments of the High Court, the only question which falls to be determined is whether by rule 2C the Municipality is entitled to collect tax leviable as a rate after computing the annual letting value solely on the area of the factory and buildings related thereto.
By section 73, the Municipality is authorised subject to any general or special orders which the State Government may make in that behalf and to the provisions of as. 75 and 76, to impose for the purposes of the Act any one or more of the classes of taxes, amongst which are included a rate on buildings or lands or both situate within the municipal borough and general water rate which may be imposed in the form of a rate assessed on buildings or lands or in any other form.
Section 75 prescribes the procedure preliminary to imposing a tax.
The procedure for assessing the 310 liability to rates on lands and buildings is prescribed by sections 78 to 84 of the Act which provide for preparation of the assessment list, its authentication and amendment.
When a rate on building or lands or both is imposed, the Chief Officer causes ail assessment list of all buildings or lands or lands and buildings in the municipal borough to be prepared containing inter alia the names of the owner, the valuation based on capital or annual letting value as the case may be on which the property is assessed and the amount of tax assessed thereon.
The expression "Annual; letting value" is defined in section 3(1) of the Act as meaning the annual rent for which any building or land, exclusive of furniture or machinery contained or situate therein or thereon might reasonably be expected to let from year to year, and shall include all payments made or agreed to be made by a tenant to the owner of the" building or land on account of occupation, taxes, insurance or other charges incidental to his tenancy.
By section 78 sub section
(1) cl.
(d) and Explanation to section 75, the rate to be levied on lands and buildings may be assessed on the valuation of the lands and buildings based on capital or the annual letting value.
By the rules in operation prior to April 1, 1947, house tax and water tax were levied as rates in respect of all lands, buildings and non agricultural lands on the annual letting value (except Government buildings).
Even under the new rules, house tax and water tax continued to be levied in respect of all buildings and, non agricultural lands as rates: but the rate in respect of buildings falling within rule 2C was assessed on a valuation computed on the floor area of the structures, and not on the capital value nor on the annual rent for which the buildings may reasonably be expected to let.
This was clearly not a tax based on the annual letting value, for "Annual letting value" postulates rent which a hypothetical tenant may reasonably be expected to pay for the building if let.
A rate may be levied under the Act on valuation made on capital or on the annual letting value.
If the rate 311 is to be levied on the basis of capital value, the building to be taxed must be valued according to some recognised method of valuation: if the rate is to be levied on the basis of the annual letting value, the building must be valued at the annual rental which a hypothetical tenant may pay in respect of the building.
The Municipality ignored both the methods of valuation and adopted a method not sanctioned by the Act.
By prescribing valuation computed on the area of the factory building, the Municipality not only fixed arbitrarily the annual letting value which bore no relation to the rental which a tenant may reasonably pay, but rendered the statutory right of the tax.
payer to challenge the valuation illusory.
An assessment list prepared under section 78, before it is authenticated and finalised, must be published and the taxpayers must be given an opportunity to object to the valuation.
By the assessment list in which the valuation is not based upon the capital value of the building or the rental which the building may fetch, but on the floor area, the objection which the tax payers may raise is in substance restricted to the area and not to the valuation.
Counsel for the Municipality sought to rely upon The Madras and Southern Mahratta Railway Co., Ltd. vs The Bezwada Municipality (1) decided by the Judicial Committee of the Privy Council, in support of the plea that the rate based on valuation in proportion to the floor area is validly levied.
By section 81 sub section
(2) of the Madras District Municipalites Act, 1920, a tax for general purposes and a water and drainage tax were to be levied at such fractions of the annual value of lands or buildings or both as may be fixed by the Municipal Council.
By section 82 Sub section
(2) of that Act, the annual value of lands and buildings was to be the gross annual rent at which they may reasonably be expected to let, but by the proviso, it was enacted that in the case of any Government or Railway building, the annual value of the premises shall be deemed to be 6% of the total of the estimated value of the land and the estimated present cost of erecting the (1) I.L.R. 312 building subject to certain deductions.
The Municipality of Bezwada levied property tax on a piece of vacant land belonging to the Madras and Southern Mahratta Railway Company on the annual value computed at 6% of its capital value.
This method of taxation was challenged by the Railway Company on the contention that all methods of valuation other than the method prescribed by the proviso to section 82(2) were by necessary implication prohibited.
This contention was rejected because the generality of the sub.
stantive enactment was left unqualified except in so far as it concerned the particular subjects to which the proviso related.
Open lands were not covered by the proviso and it was competent to the municipality to levy the tax under section 82(2) on the annual value and that value would be determined by any of the recognised methods of arriving at the rent which a hypothetical tenant 'may reasonably be expected to pay for the lands in question.
This case has in our judge ment no relevance to the present case.
If the Municipality of Barsi had adopted any of the recognised methods of valuation for assessing the annual letting value, the tax would not, be open to challenge, but the method adopted was not a recognised method of levying the rate. ' The High Court relied upon its earlier judgment in The Borough Municipality of Amalner vs The Pratap Spinning Weaving and Manufacturing Co.p Ltd., Amalner (1).
In that case, the court negatived the challenge to the validity of the rules similar to those impugned in these appeals.
The Amalner Municipality had by rules framed under the Bombay Municipal Boroughs Act sought to levy a rate equal to a per centage of the annual letting value which was computed on the floor area of "mills and factories".
The court held that the method of taxation adopted by the Municipality had remained unchallenged for a long time,, that the rules had been sanctioned by the Government and they were not shown to be "capricious, arbitrary and unreasonable and that the valuation of the property by reference to the floor area was (1) I.L.R. 313 not altogether unknown to the law of rating.
The High Court also observed that in assessing the rent 2 which a hypothetical tenant may pay several methods are open to the Municipality and if on examining the cases of all the factory buildings within their jurisdiction, the Municipality concluded that the rent which the hypothetical tenant may reasonably be expected to pay for those buildings fits in with the rent which they had fixed by adopting the flat and uniform rate the principle of fixing the annual letting value on the basis of the floor area would not be open to challenge.
It was assumed in that case that all factory buildings within the area of the Amalner Municipality were.
alike in essential features and were intended to be used for purposes which were alike, and that probably the Municipality may have been satisfied that the principle enunciated in the rule impugned worked out on the whole as a fair basis for determining the valuation of the building in question.
In our view, this approach to a rating problem arising under the Act is not permissible.
In any event, there is no evidence on the record of this case that the factories and "buildings relating thereto" such as ware houses, godowns and shops of the Mills situate in the compound of the mills, may be separately let at the uniform rate prescribed ' by the Municipality.
The vice of the rule lies in an assumed uniformity of return per square foot which structures of different classes which are in their nature not similar, way reasonably fetch if let out to tenants and in the virtual deprivation to the rate payer of his statutory right to object to the valuation.
Another judgment of the Bombay High Court in Motiram Keshavdas vs Ahmedabad Muncipal Borough (1) calls for reference.
It was held in Motiram 's case that a water tax imposed by the Ahmedabad Municipality as a rate not depending upon the value of the property assessed but in lump sum was not a rate for the purpose of section 73(x) of the Bombay Municipal Boroughs Act, 1925 and the rule which authorised the levy of such a lump sum was ultra vires (2) (1942) Bom.
L. R.280 40 314 These appeals must be allowed and the decrees passed by the High Court set aside and the decrees passed by the District Court of Sholapur restored with costs in this court and the High Court.
One hearing fee.
Appeals allowed.

summary:
The Bombay Municipal Boroughs Act, 1925, empowered a municipality to levy rates on lands and buildings which were to be assessed on the valuation based on the capital or the annual letting value.
The Act defined the annual letting value inter alia as the annual rent for which any building or land might reasonably be expected to let from year to year.
The General Body of the Municipality of Barsi framed new rules under section 58 of the Act for levying rates: for all buildings and non agricultural lands the rate was to be levied on the annual letting value, but for mills and factories and buildings relating thereto it was provided by r. 2C that the annual letting value was to be fixed on the floor area.
The Municipality issued notices of demand under the new r. 2C calling upon the appellant (which is a company owning a textile mill) to pay house and water taxes which were assessed as rates which was paid by the appellants under protest.
The question to be determined was whether by r. 2C the Municipality was entitled to collect tax leviable as a rate after computing the annual letting value solely on the area of the factory and building relating thereto.
Held, that a rate may be levied by a municipality under the Bombay Municipal Boroughs Act, 1925, on the valuation made on the basis of capital or on the annual letting value of a building and not on a valuation computed merely on the floor area of the structures, such a rate was clearly not a tax based either on the capital value or on the annual letting value, for "annual letting value" postulates rent which a hypothetical tenant may reasonably be expected to pay for the building if let.
The Municipality had no power under the Act to ignore the methods of valuation prescribed by the Act, and to adopt a method not sanctioned by the Act.
By prescribing valuation computed on the area of the factory building the Barsi Municipality not only fixed arbitrarily the annual letting value which bore no relation to the rental which a hypothetical tenant may reasonably be expected to pay but rendered the statutory right of the tax payer to challenge the valuation illusory as the objection which the tax payer could raise thereto was in substance restricted to the area of the building and not to its valuation.
307 The rule adopting a flat and uniform rate on the assumption that all factory buildings within the area of a municipality were not alike in essential features and were not intended to be used for purposes which were alike was not permissible under the Act.
The vice of the rule lies in an assumed uniformity of return per square foot which structures of different classes in their nature not similar, may reasonably fetch if let out to tenants and in the virtual deprivation to the rate payer of his statutory right to object to the valution.
Rule 20 by the Barsi Borough Municipality under section 58 of the Bombay, Municipal Boroughs Act, 1925, was illegal and ultra vires.
The Madras and Southern Mahratta Railway Co. Ltd. vs The Bezwada Municipality I.L.R. , not applicable.
The Borough Municipality of Amalner vs The Pratap Spinning Weaving and Manufacturing Co. Ltd., Amalner, I.L.R. , not approved.
Motiram Keshavdas vs Ahmedabad Municipal Borough, , referred to


judgement:
il Appeals Nos.
194 of 1956 and 353 of 1958.
Appeals by special leave from the judgment and orders dated December 26, 1953 and April 30, 1957, of the Custodian General and Deputy Custodian General of Evacuee Property in Revision Nos.
5055R/Judl/ 1953 and.
1161/R/Judl/1954 respectively.
Achhru Ram and T. R. V. Sastri, for the appellants.
N. section Bindra and D. Gupta, for respondents.
March 21.
The Judgment of the Court was delivered by 459 DAS, GUPTA, J.
Of these two appeals, one (Civil Appeal No. 194 of 1956) is against the order of the Custodian General of India, declining to interfere with ' the order of the Custodian of Evacuee Property, Orissa, in respect of certain properties claimed by the appellant as his; and the other appeal (Civil Appeal No. 353 of 1958) is against the order of the Deputy Custodian General of India, declining to interfere with the order of the Custodian of Evacuee Property, Madras, in respect of properties situate in Madras, claimed by the same appellant as belonging to him.
Though most of the considerations that arise in the two appeals are identical, it will be convenient to take them up one after the other so as not to confuse a clear understand ing of the facts on which these considerations which are all based on question of law arise.
The appellant Fazal Bhai Dbala and his brother Abdulla Dhala were partners in a business of hides and skins.
A deed of partnership was executed on January 1, 1941, and the firm was registered in the Register of Firms, Cuttack, under section 59 of the Indian Partnership Act.
On August 10, 1949, Abdulla Bhai Dhala executed a deed of sale in respect of some immovable properties at Jharsuguda in Orissa, and also certain properties, at Madras, in favour of Fazal Bhai Dhala.
The consideration in the document was mentioned as Rs. 85,000 of which Rs. 50,000 was mentioned as the value of the Madras properties and Rs. 35,000 as the value of the Orissa properties.
The sum of Rs. 85,000 appears to have been paid in the presence of the Registrar by Fazal Bhai to Abdulla Bhai on August 11, 1949.
A deed of dissolution of the partnership was also executed on the following day the 12th August, 1949.
It was stated therein that the two partners had agreed "that the said partnership shall stand dissolved as and from 2 11 48 and it has further been agreed that as from that day, 2 11 1948, the said business of Fazalbhoy Dhala & Co shall belong to and be continued and carried on by Fazalbhoy Dliala.
" It was also stated that in view of the fact that "accounts of the said partnership have not yet been taken or settled and cannot be taken or 460 settled without much delay and trouble it has further been agreed that Fazal Bhai Dhala shall pay to Abdulla Dhala a sum of Rs. 40,000 in full settlement and satisfaction of all the claims, as partner of Abdulla Bhai Dhala against the partnership, its assets, goodwill etc., in respect of his share therein".
A receipt of the sum of Rs. 40,000 was also acknowledged in this deed.
On receipt of information that Abdulla Dhala had migrated to Pakistan after transferring his properties to his brother Fazal Bhai Dhala, the Assistant Custodian of Evacuee Property, Sambalpur (Orissa), issued a notice under section 7(1) of the Ordinance XXVII of 1949 to Fazal Bhai Dhala on December 30, 1949, in respect of im movable properties at Jharsuguda including the properties covered by the sale deed of August 10, 1949, and the business in hides and skins under the name of Fazalbhoy Dhala & Co., and certain immovable properties standing in the name of that firm.
In reply to the notice, Fazal Bhai contended that Abdulla Bhai was not an evacuee; and that in any case, he, Fazal Bhai, had become the sole proprietor of the business, with all assets and liabilities, with effect from November 2, 1948, when the partnership was dissolved and that while some of the immovable properties as mentioned in the notice had been conveyed to him by a deed of sale by Abdulla Bhai, the rest being assets of the firm of Fazal Bhai Dhala, had vested in him after the dissolution of partnership, he prayed that his "title" in the assets of the firm, and in the immovable properties, mentioned in the notice should be confirmed.
The Assistant Custodian held after consideration of the evidence that though the transfer of the properties mentioned in the sale deed was for adequate and valuable consideration it was not at all bona fide: as regards the other properties ' and the hides and skins business itself the Assistant Custodian held that Abdulla Bhai had no interest as the partnership had been dissolved on November 2, 1948.
Against this decision Fazal Bhai appealed to the Custodian and prayed that the order of the Assistant Custodian as regards the properties mentioned in Schedule "A" (1) and (II) mentioned in the notice under sub section 1 of section 7 of the Government of India Ordinance 461 No. XXVII of 1949 should be sot aside.
The Custodian agreed with the Assistant Custodian, in respect of these properties, and held that these had been rightly declared as evacuee properties.
He went further and held that there was no justification for the Assistant Custodian taking a different view as regards the other properties.
His conclusion was that "in fact, with regard to these properties also the same amount of mala fides was present and as such these should also be included in the list of evacuee properties"; and that "it is but proper that the entire 8 annas share of the properties mentioned in Schedules A and B of the evacuee Abdulla should be treated as evacuee properties".
The Custodian finally ordered: "in consequence of my above decision according to section 6 of the Evacuee Interest Separation Act, the entire properties in Schedules A and B should now be treated as evacuee pro perties and revised action should be taken to notify as ,such under section 7(3) of the Administration of Evacuee Property Act and the appellant be directed to get his 8 annas share in the properties separated in the Court of the Competent Officer".
Fazal Bhai moved the Custodian General of India for revision of this order of the Custodian, Orissa.
The Custodian General, however, refused to interfere.
It is proper to mention at the outset that it is no longer disputed that Abdulla Bhai is an evacuee, though the exact date from which he became such an evacuee does not clearly appear from the record, and that all the immovable properties, which are the subject matter of the appeal, were the assets of the firm Fazalbhai Dhala & Co. Four contentions were urged in support of the appeal.
The first contention, and the one to which Mr. Achhru Ram devoted a considerable portion of his argument, was that the Custodian General should have held that the Custodian acted without jurisdiction, and at any rate, irregularly in the exercise of his jurisdiction, if he had any, in interfering with the order passed by the Assistant Custodian that the immovable property and the hides business and the properties mentioned in Sell.
A III, that is the properties 462 other than those covered by the sale deed, were not evacuee properties and should be released.
Mr. Achhru Ram has pointed out that against the Assistant Custodian 's order in respect of these two items of properties the hides business and the immovable properties in Sch.
A III mentioned in the notice, the Custodian 's department had not preferred any appeal, so that the Custodian could not interfere with it, in exercise of his appellate jurisdiction.
Learned Counsel then contends that the Custodian 's order in respect of these properties the hides business and the Jharsuguda properties in Sch.
A III could not have been passed, in exercise of the revisional jurisdiction conferred on him by section 26 of the Administration of Evacuee Property Act (Act No. XXXI of 1950), as no notice of such intention to examine the records in revision, had been issued to Fazal Bhai.
While it is true that the order does not clearly mention that in respect of the hides business and the Sch.
A III properties it was being made in exercise of revisional jurisdiction, it is clear that the only jurisdiction the Custodian could exercise, in the absence of any appeal against that portion of the Assistant Custodian 's order would be his revisional jurisdiction under section 26.
When we find that the Custodian has made the order it is proper and reasonable to hold that he passed it in the exercise of the only jurisdiction he had viz.
, the revisional jurisdiction and the fact that this was not clearly stated in the order can be no ground for holding that he was not exercising revisional jurisdiction.
It is quite another matter whether in the exercise of that jurisdiction, he proceeded in accordance with law.
Mr. Aehhru Ram contended that under the law, the Custodian was required to issue a notice to the parties concerned before exercising his, revisional jurisdiction.
Admittedly, no such notice was issued; and this omission to issue a notice was put by the appellant in the forefront of his grievances both in his petition for revision before the Custodian General and in the application for special leave to appeal to this Court.
Turning however to section 26 we find that there is no 463 provision for service of any notice.
The section runs thus: "26.
Powers of review or revision of Custodian etc.
(1) The Custodian, Additional Custodian, or( Authorised Deputy Custodian may at any time, either on his own motion or on application made to him in this behalf, call for the record of any proceeding under this Act which is pending before, or has been disposed of by, an officer subordinate to him for the purpose of satisfying himself as to the legality or propriety of any orders passed in the said proceeding, and may pass such order in relation thereto as he thinks fit: Provided that the Custodian, Additional Custodian or Authorised Deputy Custodian shall not pass an order under this sub section revising or modifying any order prejudicial to any person without giving such person a reasonable opportunity of being heard: Provided further that if one of the officers aforesaid takes action under this sub section, it shall not be competent for any other officer to do so. . .
The proviso secures the requirements of the principles of natural justice when it says that any order prejudicial to any person shall not be passed without giving such person a reasonable opportunity of being heard.
No specific provision for service of notice in order that such a reasonable opportunity of being heard be given has however been made by any rule.
It goes without saying that in the large majority of cases, the Custodian "will, in order to give the party concerned a reasonable opportunity of being beard, first give him a notice of his intention to examine the records to satisfy himself as to the legality or the propriety of any order passed by the subordinate officer and require such person to show cause if any why the order should not be revised or modified, and then if and when the party appears before him in response to the notice, the Custodian has also to allow him, either personally or through counsel, a reasonable opportunity of being heard.
In suitable cases it may be proper and necessary for the Custodian to allow 464 the party concerned even to adduce evidence.
There may be cases however where the party concerned is already before the Custodian, so that all that is necessary for the Custodian to do is to inform such party of his intention to examine the records to satisfy him,self whether a particular order should be revised, and then to give him a reasonable opportunity of being heard.
There would be no necessity in such a case to serve a formal notice on the party who is already before the Custodian and the omission to serve the notice can be of no consequence.
What the law requires is that the person concerned should be given a reasonable opportunity of being heard before any order prejudicial to him is made in revision.
If this reasonable opportunity of being heard cannot be given without the service of the notice the omission to serve the notice would be fatal; where however proper hearing can be given without service of notice, it does not matter at all, and all that has to be seen is whether even though no notice was given a reasonable opportunity of being heard was given.
A perusal of the Custodian 's judgment makes it reasonably clear that he informed the counsel who appeared on Fazal Bhai.
Dhala 's behalf, that he proposed to consider whether the order made by the Custodian in respect of the hides business and the Sch.
A III properties had been rightly made and to revise the same, if necessary, after giving a reasonable opportunity of being heard to Fazal Bhai on this point.
It is equally clear that the appellant 's advocate was fully heard in the matter.
We have no doubt therefore that the requirements of law as embodied in the proviso to section 26(1) of the Act were fully satisfied.
The contention that the Custodian acted without jurisdiction or irregularly exercised his jurisdiction must therefore fail.
The next contention raised in the appeal is to use the learned counsel 's own words that in view of section 43 of the Indian Partnership Act the partnership stood dissolved from November 2, 1948 and the Custodian had no jurisdiction to declare the "business" to be an evacuee property.
It does not appear to have been 465 disputed either before the Assistant Custodian or the Custodian that the partnership of Fazalbhai Dhala & Co., was a partnership at will.
The deed of dissolution ' was dated August 1.2, 1949 and it has been found by the Custodian that the deed of dissolution was purposely concluded to provide a common safeguard for properties to remain in the hands of the brothers.
The mention of the date November 2,1948 as the date of dissolution cannot therefore be accepted.
The firm must however be held to have been dissolved on August 12, 1949 on which date the deed of dissolution was executed.
The argument of the learned counsel appears to be that once the partnership business, was dissolved there could be no question of declaring the dissolved partnership as an evacuee property.
Once the fact of dissolution is accepted the declaration as regards the business must necessarily be construed as a declaration that the property that remained in Abdulla Bhai on the dissolution of the firm was an evacuee property.
It seems to us clear that that was really what is intended to be meant by the order made by the Custodian.
A further contention of the appellant is that the transactions evidenced by the two deeds, viz., the sale deed and the dissolution were merely in furtherance of the winding up of the affairs of the dissolved partnership and therefore in determining the validity or otherwise of the transactions it has to be borne in mind that Fazal Bhai could not resist the claim of the other partners to wind up.
The story that the dissolution of partnership had taken place earlier and the two deeds were excited later on has not been accepted by the Custodian and we can see no reason to interfere with his conclusion.
The deeds of sale were executed prior to the actual dissolution which was effected by the deed of dissolution there is no scope therefore for saying that the sale deed was in the course of the winching up of the affairs of the dissolution of partnership.
As regards the deed of dissolution itself it is wholly beside the point whether Abdulla Bhai could have resisted the claim to wind 59 466 up; for the declaration merely is that Abdulla Bhai 's share in the dissolved partnership as it stood on the date of dissolution is an evacuee property.
The validity of the dissolution is not touched.
It is hardly necessary to add that the dissolution of the partnership did not by itself mean that Abdulla 's share stood transferred to Fazal Bhai any more than that Fazal Bhai 's share stood transferred to Abdulla Bhai.
A purported transfer of Abdulla 's share was made by the deed itself.
But this having been held to be without good faith, had in view of section 40 of the Evacuee Property Act, no effect.
It has to be made clear that the Custodian would not be bound by the statements made in the deed of dissolution as regards the settlement of the accounts of the firm and that the Custodian, in whom the evacuee properties vest will have in respect of the dissolved business all the rights which Abdulla had under sections 37, 46, 47, 48 and other sections of the Partnership Act.
There remains for consideration the appellant 's contention that in any case the Custodian acted illegally in the exercise of his jurisdiction in ordering that "the entire properties in Schs.
A and B should now be treated as evacuee properties".
It appears that the order by the Custodian was made in these terms even though his conclusion was that "the entire 8 annas share of the properties mentioned in Schs.
A and B of the evacuee Abdulla should be treated as evacuee properties", in view of the fact that under the original definition of evacuee property in section 2(f) of the Administration of Evacuee Property Act (Act XXXI of 1950) it meant "any property in which any evacuee has any right or interest".
This definition has however since been amended and now evacuee property means "any property of an evacuee" instead of "any property in which an evacuee has any right or interest".
The legal position after the amendment therefore is that it is only the 8 annas share of Abdulla set out in the Schedule in the Assistant Custodian 's order dated the 28th January, 1950, which is evacuee property.
It is therefore necessary to state in clarification of the position that instead of the 467 entire Schedules A and B properties being treated as evacuee property only 8 annas share of these properties which belonged to the evacuee Abdulla should be treated as evacuee properties.
With this clarification of the Custodian 's order the appeal is dismissed.
There will be no order as to costs.
Pi The other appeal C. A. No. 353 of 1958 is in respect of properties in Madras.
Fazal Bhai made an application on July 21, 1950 purporting to be under section 40 of the Administration of Evacuee Property Act (Act XXXI of 1950) in reply to a notice which had been issued on him under section 7 of the Act.
His case, as in respect of the Orissa properties mentioned earlier, was that the dissolution of the firm took place in November, 1948 and that the final transaction and settlement of accounts was brought about by a deed of sale dated August 11, 1949 in respect of Orissa and Madras pro perties and a deed of dissolution dated August 12, 1949 for a consideration of Rs. 40,000 making in all the entire amount of Rs. 1,25,000 which in this final settlement had been agreed to be paid to Abdulla.
He prayed for a declaration that the properties mentioned in the notice be held to have been legally and properly passed to him, and that the transfer in his favour may be confirmed.
The Assistant Custodian of Evacuee Property, Madras, accepted Fazal Bhai 's case that the transfer was only a step in the apportionment of the assets of the firm and not a transfer outside the partition of the assets of the firm.
He held that the transfer was bona fide and made an order in these terms: "I therefore accept the dissolution of the firm of Fazalbhai Dhala and Company covered by the dissolution deed dated 12 8 49 and confirm the transfer of the immoveable properties covered by the deed dated 10 8 49 under section 40(5) of the .
" When this matter came to the notice of the Custodian General of Evacuee Property in the course of the proceedings before him in respect of the Orissa property, he observed: "As for the Madras properties, I notice that Mr. 468 Rathanam 's order was allowed to go unchallenged by the department and as it is not before me, therefore, I am not called upon to express my opinion.
" This was on December 26, 1953.
It appears that the Custodian General also made a suggestion to the Custodian, Madras, that he might examine the propriety of the order passed by the Assistant Custodian., Madras.
Accordingly, the Custodian, Madras, examined the records and issued notice to interested parties including Fazal Bhai Dhala to show cause why the Assistant Custodian 's order should not be set aside in revision.
Cause was shown by Fazal Bhai Dhala and thereafter after hearing arguments on his behalf by his Advocate, Mr. T. section Raghavachari, the Custodian held that "the transactions covered by the sale deed dated August 10, 1949 and the deed of dissolution dated the 12th August, 1949 were not bona, fide".
Accordingly, he set aside the order of the Assistant Custodian which confirmed the transfer of properties covered by these two deeds.
He directed the Assistant Custodian, Madras, to take steps under the Evacuee Property Act in respect of these evacuee properties consequent on the cancellation of the confirmation of transfer.
Fazal Bhai 's application to the Custodian General of Evacuee Property, India, for revision of the Custodian 's order was heard by the Deputy Custodian General of Evacuee Property, India, and was rejected.
The only additional ground urged by Mr. Achhru Ram in support of this appeal is that the notice issued on Fazal Bhai to show cause why the Assistant Custodian 's order should not be revised did not say anything as regards the Assistant Custodian 's order in respect of the business and so the Custodian had no jurisdiction to interfere with the Assistant Custodian 's order in so far as that order was in respect of the business ' Turning now to the Assistant Custodian 's order we find that in addition to confirming the transfer of immovable properties covered by the deed of August 10, '1949 he also said: " 'I therefore, accept the dissolution of the firm of Fazal Bhai Dhala & Company., 469 covered by the dissolution deed dated August 12, 1949.
The Custodian in his order dated July 5, 1954, has held that the transaction covered by the deed of ' dissolution also was not bona fide.
It has to be borne in mind that the purported dissolution of the firm in November, 1948, the settlement of accounts recorded in the deed of August, 1949 and the transfer of properties effected were all integral and indivisible parts of the same transaction.
While it is true that the notice issued to Fazal Bhai made no reference to the deed of dissolution, it is clear from Fazal Bhai 's own statement filed in response to this notice that he clearly understood that the revising authority would be considering the question of bona fides in respect of the numerous statements about the settlement of accounts in connection with the dissolution of business made in the deed of dissolution.
We are satisfied, therefore., that the appellant Fazal Bhai had reasonable opportunity of being heard as regards the bona fides of the transactions mentioned in the deed of dissolution.
As we have already mentioned in connection with the other appeal, the fact that the firm stood dissolved with effect from the date on which the deed of dissolution was executed can no longer be disputed.
The effect of the Custodian 's order in regard to the deed of dissolution merely is that the transactions mentioned in that deed on the purported basis of an earlier dissolution has been declared to be not bona fide and confirmation was refused of whatever transfers of properties were purported to have been effected by that deed.
This appeal, is, therefore,, dismissed with costs.
Appeals dismissed.

summary:
F, the appellant, and A his brother, were partners in a business of hides and skins.
On August 10, 1949, A executed a deed of sale in respect of some immoveable properties in Orissa and Madras in favour of F. A deed of dissolution of the partnership was also executed on August 12, 1949, wherein it was inter alia stated that the partners bad agreed that the said partnership shall stand dissolved as from November 2, 1948.
On receipt of information that A had migrated to Pakistan after transferring his properties to his brother F, the Assistant Custodian of Evacuee Property, issued a notice to F under section 7(1) of the Ordinance 27 of 1949 in respect of immoveable properties in Orissa including the properties covered by the sale deed and the business in hides and skins and certain immoveable properties standing in the name of the firm.
In reply F contended that he had become the sole proprietor of the business with all assets and liabilities, with effect from November 2, 1948, when the partnership was dissolved 457 and that while some of the immoveable properties as mentioned in the notice had been conveyed to him by a deed of sale by A, the rest being assets of the firm, had vested in him after the dissolution of partnership.
The Assistant Custodian held that though the transfer of the properties mentioned in the sale deed was for adequate and valuable consideration it was not at all bona fide; as regards other properties and the hides and skins business itself, A had no interest as the partnership had been dissolved on November 2, 1948.
Against this decision F appealed to the Custodian, who held that these properties were rightly declared as evacuee properties and that as regards the transfer of other properties, the same amount of mala fides was present and as such these should also be included in the list of evacuee properties.
The appeal to Custodian General was rejected and the appellant moved the Supreme Court by special leave.
Four contentions were urged by the appellant: Firstly, that the Custodian General should have held that the Custodian acted without jurisdiction in interfering with the order passed by the Assistant Custodian that the hides business and the properties mentioned in Sch.
A III of the notice were not evacuee properties and should be released.
Secondly, that as against the Assistant Custodian 's order in respect of the hides business and the immoveable properties in Sch.
A III the Custodian Department had not preferred any appeal, so that the Custodian could not interfere with it, in exercise of his appellate jurisdiction.
The Custodian 's order in respect of these properties could not have been passed, in exercise of the revisional jurisdiction conferred on him by section 27 of the Administration of Evacuee Property Act as no notice of such intention to examine the records in revision had been issued to F. Thirdly, once the partnership business was dissolved, there could be no question of declaring the dissolved partnership as an evacuee property, in view of section 43 of the Indian Partnership Act.
Fourthly, the transaction evidenced by the two deeds, viz., the sale deed and the dissolution were merely in furtherance of the winding up of the affairs of the dissolved partnership and therefore in determining the validity or otherwise of the transactions, F could not resist the claim of the other partner to wind up.
Held, that where the Custodian had made an order against that portion of the order of the Assistant Custodian which was not before him in appeal it must be taken to have been passed in the exercise of the Custodian 's revisional jurisdiction and the mere fact that this was riot expressly stated in the order could 58 458 be no ground for holding that he was not exercising his revisional jurisdiction.
It was quite another matter whether in the exercise of the revisional jurisdiction, he proceeded in accordance with law.
The Custodian in exercising his revisional jurisdiction must give the party concerned a reasonable opportunity of being heard before any order prejudicial to him is made in revision.
If this reasonable opportunity of being heard cannot be given without the service of notice, a notice must be served for otherwise the omission to serve the notice would be fatal, even though section 26 of the Administration of Evacuee Property Act did not specifically provide for service of notice by the Custodian.
But in cases where the party affected is before the Custodian and has knowledge of the proceedings before him and is heard, the failure to issue a formal notice is immaterial or does not vitiate the order passed.
Once the fact of dissolution is accepted, the declaration as regards the business must necessarily be construed as a declaration that the property that remained in the evacuee on the dissolution of the firm was evacuee property.
Held, further, that where a deed of transfer by an 'evacuee ' was without good faith, section 40 of the Administration of Evacuee Property Act would come into operation, making the transfer of no effect and in the case of a firm its property on dissolution would become an evacuee property from the date of the execution of the deed of dissolution of the partnership and vest in the Custodian with all the rights under the provisions of the Partnership Act and the Custodian was not bound by the statements made in the deed of dissolution as regards the settlement of account.
In the present case the Custodian did not act without juris diction or exercise his jurisdiction irregularly.