judgement:
Appeals Nos. 466 and 407 of 1960.
Appeals by special leave 'from the judgment and decree dated October 30, 1956, of the former Nagpur High Court (Now Madhya Pradesh ' in F. A. Nos. 79 and 95 of 1949.
C. K. Daphtary, Solicitor general of India, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the appellants (in C. A. No. 406/60) and Respondent Nos, 12 and 14 to 17 (in C.A. No. 407/60).
C. K. Daphtary, Solicitor General of India, J.B. Dadachanji, Rameshwar Nath, section N. Andley and P.L. Vohra, for the appellants (in C. A. No. 407/60) and respondent Nos. 1 to 3 (in C. A. No. 406/60).
B. Sen and I. N. Shroff, for respondent Nos. 5 and 6 (in C. A. No. 406/60) and Respondent Nos. 1 and 2 (in C. A. No. 407 of 60).
August 17.
The Judgment of the Court was delivered by DAS GUPTA, J.
This unfortunate litigation over a school which was started sixty years ago is one of the unhappy consequences of a feud that raised its ugly head in the Daudi Bohra Community many years ago.
The school was started at Burhanpur by certain members of the Daudi Bohra Community of Burhanpur in the year 1902.
It was named Madrasai Faize Hakimia and its object was to 625 impart religious and secular education to boys of the Daudi Bohra Community.
Funds were collected for the purpose of the school from the members of that community for the maintenance of the school.
In the year 1908 English classes were added to the school and in 1911 it was raised to the status of a High School under the name "Madrasai Hakimia and Coronation High School".
Some time before this on May 24, 1909 one Daudi Bohra of Surat of the name of Abdul Hussain Abdullali Faizullabhai Muchhala made a was of certain properties in Bombay for the benefit and advantage of this school at Burhanpur.
For the management of this, trust he appointed as trustees 12 gentlemen whom he mentioned as persons who had already been appointed trustees of the school.
Only a few months after this another trust came into existence for the benefit of the same school, by a deed executed by six persons, all Daudi Bohras and all belonging to Burhanpur describing themselves as managers of the school.
They created by the deed "Waqf and trust of their properties" which were mentioned in detail in the body of the deed.
Eighty persons, including themselves were named as the trustees.
It is further stated by the executants of the deed that all movable and immovable properties connected with the school shall vest in these trustees.
It is provided in the deed that the trustees hall be entitled to govern, manage and administer the affairs of the school and shall have the power of framing rules and regulations from time to time for the benefit and efficient running of the school ; and also have the power to appoint new trustees from time to time in accordance with such rules and regulations.
These trustees managed the school and also the properties belonging, to the school including the properties of which waqf was made in its favour by the trust deed of September 15, 1909 without any trouble till March 1917.
In the course of such management 626 some of the original trust properties were converted into new properties by the trustees with the help of additional donations received from members of the Daudi Bohra Community.
Trouble started in 1917 when some members of the Community started declaring that Mullaji Taher Saifuddin Saheb who, according to the main body of the Community was the Dai ul Mutalaq was not a Dai ul Mutalaq.
About the same time four out of the 18 who were appointed by the trust deed of September 15, 1909 joined three other members of the Daudi Bohra Community of Burhanpur to form a society by the name of "Madrasai Hakimia & Coronation Society", the main purpose of which was to run the Hakimia & Coronation High and Primary Schools at Burhanpur.
Among other objects were mentioned the development of branches of the school at different places ; opening library or libraries at suitable centres ; conducting newspaper or newspapers ; editing and compiling and publishing books.
In the Memorandum of Association it was provided that 12 persons named therein would form the governing body to whom the management of the affairs of the society shall be entrusted.
It was further provided that properties of each and every description acquired for or given to Madrasai Hakimia & Coronation High School shall be vested in this governing body.
The 10 persons who have been impleaded as defendants 2 to 11 ,ire members of the governing, body of the Society.
From the time they assumed the management of the Madrasai Hakimia & Coronation High School as members of the Society they have been administering the properties of which waqf was made in favour of the school by the six gentlemen who executed the trust deed of September 15, 1909.
The suit out of which these appeals have arisen was started under s.92 of the Code of Civil Procedure 627 by 4 Daudi Bohra muslims who claimed to be interested in the trust properties set out in the Schedule to the plaint as members of the Daudi Bohra Community.
Their main contention in the plaint is that the first defendant, the Hakimia Society and the 10 defendants, defendants Nos. 2 to 11 were not validly appointed trustees in respect of these trust properties.
They prayed in this suit for a declaration that these defendants are not vaildly appointed trustees ; for their removal from the management of these properties and for an order on them to render accounts on their administration of these properties.
There was also a prayer for the appointment of proper and fit persons for the management of these properties in accordance with the provisions of the trust deed of September 15, 1909, and for the framing of a scheme for the administration of the trust to which we shall latter refer as the Burhanpur Trust if it was necessary.
The ground on which the plaint claimed that these defendants were not validly appointed trustees was that they had not been appointed as such in accordance with the terms and conditions of the trust deed of September 15, 1909.
According to the plaint, whatever entrustment took place by the constitution of the Hakimia Society was invalid in law as the persons who got this registered as the Hakimia Society had no right in law to vest these properties in the Society or the members of the governing body of that Society.
As further ground for removal of these defendants from the management of these properties the plaint set out a number of acts said to have been committed by them which it was alleged amounted to a breach of trust.
One such act was the defendants ' action in throwing open the Madrasai Hakimia & Coronation High School to students other than the Daudi Bohra Community.
628 The trustees of the trust created by Mr. Muchhala were impleaded as defendants 12 to r7.
No relief was however asked for against defendants 12 to 17.
The main defences of defendants 1 to 11 were that they had been validly appointed trustees of the properties mentioned in the plaint under the trust deed.
of September 1909 in accordance with the rules framed under the trust deed.
They claimed that the properties of the institution vested in them and continued to remain vested after the registration of the Society.
The allegation of breach of trust was denied.
In that connection it was pleaded that the admission of non Bohra students did not amount to a breach of trust.
A large number of issues were framed; but it would be unnecessary to consider most of these for the decision of ' these appeals.
The principal question in controversy was whether defendants 1 to 11 were validly appointed trustees of the properties claimed as trust properties in the plaint.
The second question was as regards the allegation of breach of trust.
The first question was embodied in Issue No. 9 thus : "Are defendants 2 to 11 duly appointed trustees under the trust deed dated 15 9 1909 ?" The Trial Court answered this question in the affirmative.
Relying on the provisions of Para.
6 of the trust deed (of September 1909) for the framing of rules and regulations for management of the school and properties connected with the school, the Court held that the persons who were already trustees under the trust deed "had the power by a resolution" passed by the majority of the trustees at their meeting to (i) appoint new trustees,.
(ii) to appoint a charge of the trust properties, (iii) to get the body registered and, (iv) to frame rules and regulations such as were embodied in the Memorandum of, Association of the Hakimia Society.
It pointed out 629 that a majority of the trustees present at a meeting had passed a resolution regarding registration of the society and regarding the rules and regulations embodied in the Memorandum of Association.
This .registration in the opinion of the Court and the ' formation of the Committee of its management for the registered society was "one ' of the acts done by the trustees in the course of the managements 'and was in fact an act to secure more efficient management of the trust property and the trustees had the power to do it.
The Court further held that while it was true that the property which existed at the time the resolution to register the society was passed was then vested in the trustees then existing, there was nothing to prevent those trustees " 'who under the exhibit P 3 had the power to frame rules and regulations for the management of the school and the properties connected with it, from providing for the vesting of the property in the members of the governing body by a rule framed by them at a meeting of the trustees held according to the terms of exhibit P 3.
" According to the Court "the trustees had the power to vest the existing property in a governing body consisting of only some of them by a resolution passed at a meeting of trustees.
" Accordingly the Court held that defendants 2. to II who were members of the governing body of the Hakimia Society must be held to be validly appointed trustees according to the terms of the trust deed of September 15, in respect of all the properties endowed for the benefit of the school with the exception of Muchhala trust property.
The question of breach of trust by defendants 2 to 11.
was embodied in Issue No. 6 in these words "(a) Did the governing body of the School use the trust properties (mentioned in the plaintiffs ' list M) or any income therefrom for fighting out litigation in 1925 (C. section No. 32 of 1925)? 630 (b) Did they misappropriate the trust property or income therefrom? (c) Was the litigation for the benefit of the school" '? Another part of the allegation of breach of trust finds place in Issue No. 11 (c) thus : "Is the admission of the students who do not belong to the Daudi Bohra Community inconsistent with the object of the trust"? The Trial Court answered questions 6 (a) and (e) in the negative i.e., it found that the governing body did use trust properties or income therefrom for fighting out litigation in C. section No. 32 of 1925 and that the litigation was not for the benefit of the school.
Yet the Court answered Issue No. 6 (c) in the negative, finding that such expenditure did not amount to misappropriation.
The basis of this last finding is that though some part of the trust fund was misapplied in meetings part of the expenses of litigation which was not for the benefit of the school the defendants 2 to 11 believed, though wrongly, that by this litigation they would be safeguarding the rights of boys who were receiving education in the school and so the litigation was in the interests of the institution.
The Trial Court refused to make a declaration that defendants 1 to 11 were not validly appointed or for their removal.
It however gave a decree for the removal of defendants 12 to 72 to 17, the trustees of the Muchhala Trust.
Defendants 12 to 17 were further ordered to deposit into the Court the amount collected by them from the Muchhala trust property and were forbidden to recover any income from that property after the date of the decree.
The defendants 2 to 11 were ordered to deposit the sum of Rs. 15,596 5 8 which they were found to have misapplied.
It was ordered that if this amount was not paid by them they shall be removed and a: 631 scheme would be framed and a now trustee would be appointed to take charge of and manage the Madrasai Hakimia & Coronation High School and the properties endowed for its benefit.
A Commissioner was directed to be appointed to ascertain the amount paid by the managers of the Muchhala trust property to the trustees defendents 12 to 17 and to determine the amount in the hands of these defendants.
The same Commissioner was also directed to determine the amount spent by defendants 2 to 11 on religious education in accordance with the directions of the trust deed.
The amount was found due to be paid to defendants 2 to 11 to be then deposited, by them in a recognised bank for the benefit to the school.
Against this decree of the Trial Court the plaintiffs preferred an appeal to the High Court of Judicature at Nagpur.
Another appeal was preferred by defendants 12 to 17 against the Trial Court 's judgment in so far as it directed their removal and gave other reliefs against them.
Defendants 1,2,4,5, 9 and 10 filed cross objections in which they challenged the correctness of the Trial Court 's finding that there had been misapplication of the trust fund to the extent of Rs. 15,596 5 8 and Rs.900/ .
The High Court dismissed both the appeals as also the cross objections and affirmed the decision of the Trial Court in full.
Against the High Court 's decision two appeals have been filed before this Court one by the plaintiffs and the other by defendants 12, and 14 to 17 by special leave granted by this Court.
The appeal by defendants 12, and 14 to 17 can be easily disposed of.
Their contention is that the Trial Court as also the High Court erred in granting a decree against them when the plaintiffs in the suit had not asked for any such relief.
In our 632 opinion, this contention must be accepted as correct.
While it is true that these five appellants, Sheikh Abdul Kayum, Seth Abdulabhai, Mulla Abdulla Bhai, Mulla Mohammed, Bhai and Seth Hasanali along with Sheikh Fida Ali were impleaded as defendants no relief was sought against them nor was any averments made for that purpose.
The prayers in para.
26 asked for a declaration that "defendants" ' are not validly appointed trustees, that ." 'defendants" maybe removed from the management of the properties and that the 'defendants" may be ordered to render an account of their administration of the trust properties.
In para.
20 also the word "defendants" was used without any qualification when it was said that it was absolutely necessary in the interest of the said trust that the "defendants" are not properly appointed trustees of the said trust and that the "defendants" are trustees de sontort.
But when the plaint is read as a whole, especially the statements in para.
19 it becomes quite clear that the plaintiffs in the present suit are seeking relief only against defendant, 1, Hakimia Society and the defendants Nos. 2 and 11, the members of the Society.
The averments on which the case that defendants are not validly appointed trustees and are trustees de sontort are made.
in respect only of these 11 defendants.
The allegations of breach of trust are also made only against these defendants.
Paragraph 10 puts the matter in clear perspective in these words : "The plaintiffs say that defendant No. 1 and defendants 2 to 11 who are the present members of defendant No.1 Society are liable ' to be removed on the following grounds.
" This statement is followed by.an enumeration of six grounds all of which clearly and unmistakably refer only to these 11 defendants.
Common sense and ordinary rules of grammar therefore compel us to read the words "defendants" 633 in Paras 20 and 26 to mean only defendants Nos. 1 to 11.
We have no doubt therefore that the courts below misdirected themselves in thinking that the plaintiffs had asked for any relief as against defendants 12 to 17.
It was stated before us that the Muchhala trust was outside the jurisdiction of the Trial Court and ' that even if any relief had been asked for against defendants 12 to 17 the Trial Court would not have been competent in law to give such relief.
It is unnecessary for us to consider that aspect of the matter as it is abundantly clear that the plaintiffs did not ask for any relief against defendants 12 to 17 and for that reason alone the courts below acted illegally in passing any decree as against those defendants.
In the two appeals filed respectively by the plaintiffs and defendants 12, and 14 to 17 the appellants are represented by the learned Solicitor General and it is conceded by him for the plaintiffs that the plaint did not claim any relief against defts.
12 to 17.
The appeal No. 406 of 1960 which is by the original defendants 12 & 14 to 17 must therefore be allowed.
The appeal which has been numbered as 407 of 1960 is by the four plaintiffs.
The first contention raised on their behalf by the learned Solicitor Genera) is that the original trustees of the Burhanpur trust had no power in law to divest themselves of the property vested in them by the trust deed or to vest these properties in any society or its governing body, even though the society or the governing body might include some or all of the old trustees.
In the present case it was contended in the plaint and urged before us on behalf of the appellants that the evidence would show that all the old trustees had not joined in the act of 634 formation of the Hakimia Society and transfering the property vested in them to the society or its members.
Assuming, however, for the purpose of the present question that what was done should be deemed in law to be the act.
of the entire old body of the trustees, even so, the learned Counsel argues, the act had no legal validity and did not produce in law the consequence of constituting the Hakimia Society or its members trustees in place of the old trustees.
In our judgment, this contention must succeed.
There cannot, in our opinion, be any doubt about the correctness of the legal position that trustees cannot transfer their duties, functions and powers to some other body of men and create them trustees in their own place unless this is clearly permitted by the trust deed, or agreed to by the entire body of beneficiaries.
A person who is appointed a trustee is not bound to accept the trust, but having once entered upon the trust he cannot renounce the duties and liabilities except with the permission of the Court or with the consent of the beneficiaries or by the authority of the trust deed itself.
Nor can a trustee delegate his office or any of his functions except in some specified cases, The rules against renunciation of the trust by a trustee and against delegation of his functions by a trustee are embodied, in respect of trusts to which the Indian Trusts Act applies, in sa.
46 and 47 of that Act.
These sections run thus "46, A trustee who has accepted the trust can not afterwards renonce it except (a) with the permission of a principal Civil Court of Original Jurisdiction, or(b) if the beneficiary is competent to contract, with his consent, or (c) by virtue of a special power in the instrument of trust.
635 47.
A trustee cannot delegate his office or any of his duties either to a co trustee or to a stranger, unless (a) the instrument of trust so provides, or(b) the delegation is in the regular course of business, or (c) the delegation is necessary, or (d) the beneficiary, being competent to contract, consents to the delegation.
" It is true that section I of the Indian Trusts Act makes provisions of the Act inapplicable to public or private religious or charitable endowments; and so, these sections may not in terms apply to the trust now in question.
These sections however embody nothing more or less than the principles which have been applied to all trusts in all countries.
The principle of the rule against delegation with which we are concerned in the present case, is clear; a fiduciary relationship having been created, it is against the interests of society in general that such relationship should be allowed to be terminated unlilaterally.
That is why the law does not permit delegation by a trustee of his functions, except in cases of necessity or with the consent of the beneficiary or the authority of the trust deed itself; apart from delegation "in the regular course of business", that is, all such functions which a prudent man of business would ordinarily delegate in connection with his own affairs.
What we have got in the present case is not delegation of some functions only, but delegation of all functions and of all powers and is nothing short of abdication in favour of a new body of men.
Necessarily there is also the attempt by the old trustees to divest themselves of all properties vested in them by the settlor and vesting them in another body of persons.
We know of no principle of law and of no authority which permits such abdication of trust in favour of another body of persons.
636 In the deed itself there is no thing which contemplates or allows such an abdication and the substitution of the old trustees by a new body of trustees.
It is necessary in this connection to consider the terms of cl.5 of the trust deed, That clause is in these words: "5.
All the aforesaid trustees 3hall be entitled to govern, manage and administer the affairs of the school above.
These trustees shall have the power of framing rules and regulations from time to time for the benefit and the efficient running of the school, and they shall have the power to appoint new trustees from time to time in accordance with the rules and regulations on behalf hereof.
All the movable and immovable properties connected with the said school shall come to vest in the trustees and they shall be managed and administered in accordance with the rules and regulations framed on that behalf.
The trustees for the time being shall have the power to alter and cancel the rules and regulations and to frame new ones instead thereof at the time when necessary.
The treasurer shall have the power to open the cash account in some reliable bank and he shall always arrange for cash dealings to the benefit of the said school in accordance with the holy law of Islam.
(Shariat).
" The provisions for the appointment of new trustees cannot by any stretch of imagination be hold to mean the substitution of the old body of trustees by a new body.
That provision only permits the old trustees to add to their number.
Nor does the power to frame rules and regulations for the benefit and efficient running of the school authorise the trustees to give up the management of the school themselves or to divest themselves of the 637 properties entrusted to them by the trust deed and vest them in other persons.
We are satisfied therefore that cl.5 of the trust deed does not in any manner authorise the trustees appointed by deed to abdicat in favour of anthor body of persons or to constitute that body as trustees in their own place.
There is no question here also of the beneficiary, i.e., the school consenting to such abdication.
There is therefore no escape from the conclusion that the act of the trustees, who were appointed by the trust deed, in handing over the management of the school to the Hakimia Society and the properties of the school to the members of the governing body of the Hakima Society was illegal and void in law.
The members of the Society or the members of the governing body did not therefore be.
come trustees in respect of the properties which are covered by the Burbanpur trust.
This position in law is not seriously disputed by Mr. Son, who appeared before us on behalf of the respondents.
He has however taken before us a noval line for suporting the decision of the courts below.
He has tried to persuade us that the trust deed of September 1909 creates a trust only in respect of the properties that belonged to the six persons who executed the trust deed.
These properties have been set out in cls.
7 to 12 of the deed.
This deed therefore has not created any trust in respect of such of the properties mentioned in the plaint which do not fall within the properties mentioned in these clauses of the trust deed.
As regards cl.5 of the trust deed which has been set out above and which states that " 'All the movable and immovable properties connected with the said school shall come to vest in the trustees," the learned Counsel states that the six settlors who executed this trust deed of September 1909 have not been shown to have bad any title to these 638 movable and immovable properties connected with the school.
The school, argues the learned Counsel, is merely a beneficiary of the trust and the properties of the school do not become trust properties entrusted to these trustees merely because the settlors have createated a trust in respect of other properties.
There is no question therefore of any property other than the properties mentioned in Paras.
7 to 12 of the deed having been vested in the trustees appointed by the deed, or their divesting themselves of the same.
It is only in so far as the defendants 1 to 11 claim to be the trustees of the properties mentioned in cls.
7 to 12 of this deed that they can be considered to be not validly appointed trustees.
Mr. Sen submits that his clients do not claim to be trustees in respect of these properties, viz., those which are mentioned in cls.
7 to 12 of the deed.
In so far as they manage these properties an order, may be made against them removing them from the management of these and they may be asked to render accounts in respect of these properties, only.
In respect of other properties which according to Mr. Sen are the properties belongining to the beneficiary school, however, no order could properly be made, as they are outside the Burhanpur trust that came into existence by the trust deed of September 1909.
The argument appears attractive at first sight and even plausible.
Unfortunately, however, for the respondents, this case which their Counsel now seeks to make was never their case in the courts below.
Far from saying that some of the properties mentioned in the plaint as trust properties of the Burhanpur trust are not in fact covered by the trust deed, these respondents have all along made the definite case that they were validly appointed trustees of those properties in accordance with the trust deed of September, 1909.
Their case in this matter may 639 best be described in the words used in Para.
4 of the written statement thus "It is admitted that on or about 19th March, 1917, seven persons signed a memorandum of Association and registered themselves as members of the Society under Act XXI of 1860.
Defendant says that all these persons were the trustees and in the management of be trust properties under trust deed dated 15 9 1909 and were either appointed under that trust or under the rules framed thereunder, and in whom the properties of the institution vested and the same continued to be vested after the registration of the Society.
" This paragraph unambiguously accepts the plaintiffs ' case that all the properties specified in the Schedule M attached to the plaint are properties covered by the trust in question and it pleads that defendants 2 to ' 11 are validly appointed trustees of the said trust.
The Judgment of the Trial Court and the High Court also clearly show that before them, these defendants claimed to be trustees validly appointed in accordance with the trust deed of September 1909 of all the properties that were mentioned as trust properties of that deed in the plaint.
Nothing appears to have been pleaded either in the written statement or at the trial or during the arguments that the settlors of this deed of September 1909 could not create a trust in respect of "all the movable and immovable properties connected with the said school", as those properties ' did not belong to them.
On the contrary.
the respondents claimed all along to have become trustees in respect of.
not only of the properties mentioned in cls.
7 to 12 of the deed but also of all other properties of the school, on the strength of this very trust deed, Mr. Sen 's 640 contention that some items of the properties mentioned in the plaint as trust properties covered by the trust deed of September 15, 1909 were not so covered cannot therefore be accepted, We find it established therefore that defendants 1 to 11 were not validly appointed trustees in respect of the trust properties mentioned in the plaint.
Their possession and management of these properties must therefore be held to be only in the character of trustee de sontort.
They are liable there fore to account for their entire period of management.
From the very fact that they have no legal right to remain in possession of the trust properties, not having been validly appointed as trustees, it is equally clear that the plaintiffs are entitled to a decree that those defendants 1 to 11 be removed from the management of the properties.
The learned Solicitor General challenged the correctness of the findings of the courts below that these defendants (defendants 1 to 11 ) did not by their misapplication of trust funds to the extent of Rs. 15,596 5 8 and Rs. 9001 commit misappropriation and also that the admission of students who did not belong to the Daudi Bohra Community was not inconsistent with the object of the trust, We think it unnecessary however to consider these matters inasmuch as even if these findings of the courts below are correct the plaintiffs are entitled to the reliefs they have asked for in this suit.
Besides the amount of Rs. 15,000/ and odd has been already paid by defendants 2 to 11 under the decree of the Trial Courts.
It is necessary to mention the fact that an assurance was given to by the learned Solicitor General that in any case the interest of the non Bohra students will be safeguarded in this school.
Accordingly, we allow the appeal and order that it be declared that the defendants 1 to 11 are 641 not validly appointed trustees in respect of the trust properties mentioned in the list M annexed to the plaint ; that the defendants be removed from the management of these properties and they be ordered to render an account of their administration of these properties.
Necessary directions for the rendering of accounts will be made by the Trial Court and in doing so, credit will be given to defendants 2 to 11 of Rs. 15,000/and odd already paid by them.
The plaintiffs appellants admit that it is not necessary to frame any scheme for the administration of the trust and we agree that this is not necessary at least for the present.
It is necessary however that new trustees be appointed for the administration of the trust.
of the original 18 trustees all except one are dead and sole survivor is admittedly too old to carry on the administration successfully.
The very fact that for many year 's he has not discharged any functions as a trustee also makes it necessary that new trustees should be appointed.
We therefore direct that suitable persons be appointed by the Trial Court as new trustees after giving an opportunity to the plaintiffs and other responsible members of the Daudi Bohra Community to place their recomendations and objections in this matter.
Both the appeals are accordingly allowed, The Plaintiffs will get their costs here and also in the Trial Court and the High Court from defendants 1 to 11.
There will be one set of hearing fee for the two appeals.
Appeals allowed.

summary:
In 1909 six persons created the Burhanpur Trust for governing, managing and administering the affairs of a school in Burhanpur.
Under the Trust deed 18 persons were appointed as the trustees and all movable and immovable properties connected with the school were vested in them.
Clause 5 of the Trust deed empowered the trustees "to appoint new trustees from time to time" and to frame rules and regulations for the benefit and efficient running of the school.
In 1917 the Hakimia Society was formed by the trustees for the purpose of running the school and 12 persons were named members of the governing council in which all the properties of the school were vested.
Since then ten members of the governing council have been administering the properties in respect of which a trust was created in 1909.
A suit under s.92 Code of Civil Procedure was filed for removal of the ten members of the governing council, inter alia, on the ground the Hakimia Society and the ten members of the governing council had not been validly appointed trustees of the trust properties.
Held, that the ten members of the governing council of the Hakimia Society were not validity appointed trustees of the Trust properties and were liable to be removed from the management thereof, The trustees of the Burhanpur Trust had no power to create another body of men as trustees in their own place.
Trustees who have once entered upon the trust cannot renounce their duties and liabilities except with the permission of the Court or with the consent of the beneficiaries or by the authority of the trust deed itself.
Nor can trustees delegate their offices or any of their functions except in some specified cases.
In the present case there was delegation of all the powers and functions of the trustees amounting to abdication in favour of a new body of men.
The trustees sought to divest themselves of the properties vested in them by the trust deed and to vest them in the 624 new body.
Such abdication could not be permitted.
There was nothing in.
the trust deed which allowed such an abdication and substitution of trustees.
, The provision in cl. 5 for appointment of new trustees only permitted the old trustees to add to their number.
Nor did the power to frame rules and regulations authorise the trustees to give up the management of the school themselves or to divest them.
selves of the properties entrusted to them by the trust deed and vest them in other persons.


judgement:
Appeal No. 25 of 1961.
Appeal by special leave from the judgment and decree dated November 26, 1957, of the Allahabad High Court in Special Appeal No. 235 of 1957.
3 C.B. Agarwala and C. P. Lal, for the appellants.
H. N. Sanyal, Additional Solicitor General of India, section K. Kapur, Bishamber Lal and.
K. K. Jain, for the respondent.
March 26.
The Judgment of Sinha, C.J., Subba Rao and Ayyangar, JJ. was delivered by Subba Rao, J., Mudholkar, J., delivered separate Judgment.
SUBBA RAO, J.
This appeal by special leave is directed against the judgment and order of a division Bench of the Allahabad High Court confirming those of a single Judge of that court dismissing the application filed by the appellant to review the order of the High Court dated November 22, 1958.
The facts leading up to the filing of this appeal may be briefly stated.
The respondent held certain zamindari and agricultural properties in different districts of the State of Uttar Pradesh.
On December 22, 1952, the Additional Collector, Banaras, in exercise of the powers conferred on him under the provisions of the U. P. Agricultural Income Tax Act (Act III of 1949), assessed the respondent to an agricultural income tax of Rs. 99,964 12 0 for the year 1359 fasli.
On September 30, 1955, the respondent filed a petition before the High Court under article 226 of the Constitution for quashing the said order on the ground that the Additional Collector, Banaras, had no jurisdiction to make the said assessment. 'On November 22, 1955, Mehrotra J., allowed the writ petition quashing the said assessment.
The State of Uttar Pradesh did not prefer an appeal against the said order and allowed it to become final.
On February 9, 1956, the State of Uttar Pradesh promulgated an Ordinance, being Ordinance No. 11 of 1956, which was subsequently replaced by U. P. Act No. XIV of 1956, Under the provisions of the Ordinance, the assessments made 4 by the Additional Collector were retrospectively validated and, under s.6 thereof, a right was conferred upon any party to the proceedings under the U.P. Agricultural Income tax Act, 1948, (hereinafter called the principal Act), wherein any assessment made by an Additional Collector or Additional Assistant Collector was set aside merely on the ground that the assessing authority had no jurisdiction to make the assessment, to apply within 90 days from the date of the commencement of the said Ordinance for a review of the said, proceedings in the light of the provisions of the Ordinance, and a statutory injunction was imposed upon a court to review the said order accordingly.
Pursuant to the provisions of s.6 of the said Ordinance, on March 14, 1956, the appellants filed an application in the High Court at Allahabad for review of its order dated November 22, 1956.
Subsequently as stated earlier, the.
Ordinance was replaced by the U. P. Act XIV of 1956 hereinafter called the Act.
In the course of the judgment we shall refer only to the provision of the Act.
The said application was heard, in the first instance, by Mehrotra, J.,.
and he held that section II of the Act, which corresponds to s.6 of the Ordinance, did not entitle the appellant to file an application for review of an order made by the High Court under article 226 of the Constitution.
The appellant 's petition was dismissed on that ground.
The appellants preferred an appeal against the said order to a division Bench of that court.
Nootham, C.J., and Srivastava, J., who heard the appeal, dismissed it on two grounds, namely, (1) under Ch.
VIII r.5 of the Rules of Court, a special appeal against an order of a single Judge of the court can be maintained only if that order amounts to a "Judgment," and an order refusing an application for review not being a "Judgment" cannot be the subject of an appeal, (2) on merits, that is on the construction of section II of the Act, the view taken by Mehrotra, J. was correct.
The present appeal, as already stated, was preferred against the said order.
5 Mr. C. B. Aggarwala, learned counsel for the appellants, has raised before us the following points: (1) The order of Mehrotra, J.,, dismissing the application for review of his earlier order is a ,Judgment within the meaning of Ch.
VIII r. 5 of the Rules of Court and, therefore, an appeal lies against that order to a division Bench of that court.
(2) The terms of section 11 of the Act are comprehensive enough to take in an order made by the High Court under article 226 of the Constitution quashing the order of assessment and even if there is some lacuna, the provisions shall be so construed as to carry out clear intention of the Legislature.
(3) In any view, the application for review filed by the appellants could be treated as one filed under Order 47 of the Code of Civil Procedure, and the earlier order reviewed on the ground that there is an error apparent on the face of the record,.
We shall take the questions in the order they were argued.
The first question is whether an appeal Jay against the order of Mehrotra, J., rejecting the application for review filed by the appellants to a division Bench of the High Court.
Chapter VIII r.5 of the Rules of Court provides for an appeal against an order of a single judge.
Under that rule a special appeal against an order of a single judge of the court can be maintained only if that order amounts to a "judgement".
That rule gives effect to cl. 10 of the letters Patent for the High Court of Allahabad, which gives a right _ of appeal against a judgment of a single judge subject to the conditions mentioned therein.
The said cl.10 corresponds to cl.15 of the letters Patent for the High Courts of Calcutta, Bombay and Madras.
The scope of the expression "judgment" came under the judicial scrutiny of the various High Courts: there is a cleavage of opinion on that question.
We shall briefly no" ,ice the leading decisions of the various High Courts on the subject.
Couch, C.J., 6 in The Justices of the Peace for Calcuttu vs The Oriental Gas CO.
(1) defines the word "judgment" in el.
15 of the Letters Patent thus: "We think 'judgment ' in clause 15 means a decision which affects the merits of the question between the parties by determining ,some right or liability.
It may be either final, or preliminary, or interlocutory,, the difference between them being that a final judgment determines the whole cause or suit and a preliminary or interlocutory judgment determines only a part of it, leaving other metters to be determined".
The same High Court in Hadjee Ismael vs Hadjee Mahommed (2 ) held that an appeal lay under the said clause from an order refusing to set aside an order granting leave to sue to the plaintiff under cl.12 of the Letters Patent.
Therein Couch, C.J., observed: "It is not a mere formal order, or an order merely regulating the procedure in the suit, but on that has the effect of giving a jurisdiction to the court it otherwise would not have.
And it may fairly be said to determine some right between them, viz., the right to sue in a particular Court, and to compel the defendants who are not within its jurisdiction to come in and defend the suit, or if they do not, to make them liable to have a decree passed against them in their absence." The Bombay High Court followed the Calcutta view.
The leading judgment of the Madras High Court is that in Tuljaram vs Alagappa (3), where it was held that an order of a single Judge in the Original Side refusing to frame an issue asked for by one of the parties is not a 'judgment ' within (1) , 452.
(2) , 101.
(3) (1912) 1.L.R. , 7, 15. 7 the meaning of cl.15 of the Letters Patent.
White, C.J., laid down the following tests: "The test seems to me to be not what is the form of the adjudication, but what is its effect in the suit or proceeding in which it is made.
If its effect, whatever its form may be, and whatever be the nature of the appli cation on which it is made, is to put an end to the suit or proceeding so far as the Court before which the suit or proceeding is pending is concerned, or if its effect, if it is not complied with, is to put an end to the suit or proceeding, I think the adjudication is a 'judgment ' within the meaning of the clause.
" Referring to the decisions of the Calcutta High Court the learned Chief Justice proceeded to state: "On the other hand I am not prepared to say as was held in The Justices of the Peace for Calcutta vs The Oriental Gas Company (1) and in Sonbai vs Ahamedbhai Habibhai (2), it must be a decision which affects the merits by determining some right or liability.
think the decision may be a judgment for the purposes of the section though it does not affect the merits of the suit or proceeding and does not determine any question of right raised in the suit or proceeding.
Krishnaswami Ayyar, J., observed much to the same effect: "I would only stop here to remark that a decision which determines the cause or proceeding so far as the particular court is concerned, though it refused to adjudge the merits, must also be deemed to be a judgement: far otherwise the rejection of a plaint for defect of form or insufficiency of Court (1) (2) (1872) 9 B.H.C.R. 398.
8 fee or a return of it for want of jurisdiction would be outside the definition of the learned Chief Justice which could hardly have been his meaning.
I may also observe that the "Part" which is determined may be a part of the claim separable from the rest or a determination of liability generally though the actual measure of liability may be a matter of account".
The Lahore High Court generally followed the view expressed by the Madras High Court.
The Allahabad High Court in Muhammad Naim Ullah Khan vs Ihsan Ullah Khan (1) expressed the view that an order which is not appealable under 0.43 r. 1 of the Code of Civil Procedure is not appealable under cl. 10 of the Letters Patent.
This view has been followed by a division Bench of the same High Court in Tirmal Singh vs Kanhayia Singh (2).
But the said decisions do not attempt to lay down a definition of the. expression "judgment" in the Letters Patent.
The Nagpur High Court in Manohar vs Baliram(3) by a majority, after considering the case law on the subject, laid down the following definition.
Hidayatullah, J., who delivered the leading judgment, laid down the test at p. 522 thus: "A judgment means a decision in an action whether final, preliminary, or interlocutory which decides either wholly or partially, but conclusively in so far as the Court is concerned, the controversy which is the subject of the action.
It does not include a decision which is on a matter of procedure, nor one which is ancillary to the action even though it may either imperil the ultimate decision or tend to make it effective.
The decision need not be immediately executable per 88 but if left untouched, must result inevitably without anything further, save the determination of (1) [1892] 1.
L. R. 14 All. 226 (2) [1923] 1.
L. R. 45 All. 535.
(3) 1.
L. R. 9 consequential details, in a decree or decretal order, that is to say, an executive document directing something to be done or not to be done in relation to the facts of the contro versy.
The decision may itself order that thing to be done or not to be done or it may leave that over till after the ascertainment of some details but it must not be interlocutory having for its purpose the ascertainment of some matters or details prior to the determination of the whole or any part of the controversy.
" The foregoing brief analysis of judgment shown that the definition given by the Madras High Court is wider than that given by the Calcutta and Nagpur High Courts.
It is not necessary in this case to attempt to reconcile the said decision or to give a definition of our own, for on the facts of the present case the order of Mehrotra, J., would be a judgment within the meaning of the narrower definition of that expression.
The appellants filed an application to review the order of the High Court quashing the order of assessment made by the Additional Collector.
It was alleged in the affidavit that the impugned assessment had been validated under the Ordinance and that the applicants had the right to have the order of Mehrotra, J., reviewed in the light of the provisions of section 6 thereof.
The assessee denied that the appellants had any such right.
The appellants ' statutory right to have the order of the High Court reviewed was denied by the other side and was put in issue before the High Court.
The relevant provisions of the Act read : Section 2. "In Section 2 of the U. P. Agricultural Income Tax Act, 1948 (hereinafter called the Principal Act), for clause (4), the following shall be and be deemed always to have been substituted 10 "(4 a) 'Collector ' shall have the meaning as in the U, P. Land Revenue Act, 1901, and will include an Additional Collector appointed under the said Act.
" Section 10.
Validation (1) For the removal of doubts it is hereby declared that (a) in rule 18 of the, U. P. Agricultural Income Tax Rules, 1949, the expression "Collector" and "Assistant Collector in charge of a sub division" shall respectively include and be deemed always to have included an "Additional Collector" and an "Additional Assistant Collector in charge of a sub divisional".
(b) all orders, actions or proceedings taken, directions issued or jurisdiction exercised or in accordance with the provisions of the Principal Act or of any rule framed thereunder prior to the amendment of that Act by 'Section 2 of this Act shall be deemed to be as good and valid in law as if Section 2 aforesaid had been in force at all material dates.
(2) Where any question arises as to the validity or legality of anuy assessment made by an Additional Collector in charge of a sub division or by an Additional Collector in pur ported exercise of the powers under Section 14 or of the rules framed under clause (c) of sub section (2) of Section 44 of the Principal Act, the same shall be determined as if the provisions of Section 2 of this Act had been in force at all material dates.
Section 11 Review of Proceedings : Where before the commencement of this Act any court or authority had, in any proceedings under the Principal Act, set aside any assessment made by an Additional Collector or 11 Additional Assistant Collector in charge of a subdivision merely on the ground that the assessing authority had no jurisdiction to make an assessment, any party to the proceedings may, at any time within ninety days from the date of commencement of this Act apply to the Court or authority for a view of the proceedings in the light of the provisions of this Act, and the Court or authority to which the application is made shall review the proceedings accordingly and make such order, if any, varying or revising the order previously made as may be necessary to give effect to the pro.
visions of the Principal Act as amended by Sections 2 and 8 of this Act.
Under the aforesaid provisions the assessments made by the Additional Collector were retrospectively validated and a right was conferred on a party to the proceedings under the Principal Act, wherein the assessments were set aside merely on the ground that the assessing authority bad no jurisdiction to make an assessment, to apply to the court to have that order reviewed.
A statutory injunction was also issued to the court which set aside the assessment on the ground of want of jurisdiction to review its order and to give effect to the provisions of the Principal Act, as amended by sections 2 and 4 of the Act, that is to say, a fresh right has been conferred upon a party to the earlier proceedings to have the previous order set aside and to have decision from the court on the basis of the amended Act.
This is a valuable and substantive right conferred upon a party to the proceeding.
On the rival contentions, the question of the fresh right conferred upon a party to the proceeding and the jurisdiction of the court to enforce the said right would be in issue and any decision thereon could legitimately be said to be a decision determining the rights of parties.
But for the 12 amending Act, the order of the High Court admittedly would have become final; but, because of the amending Act there was, a controversy whether the binding decision could be reopened and the rights of the parties decided in accordance with the amending Act.
The decision of Mehrotra, J., dismissing the application was certainly a decision denying the right of the appellants alleged to have been conferred under the amending Act.
We therefore, hold that the order of Mehrotra, J., dismissing the application, filed for review of his earlier order, on the ground that section 11 of the Act did not confer any such right on the appellants was a 'judgment ' within the meaning of cl.10 of the Letters Patent as well as Ch.
VIII r.5 of the Rules of Court.
If so, we must hold that the division Bench of the High Court went wrong in holding that no appeal lay against the order of Mehrotra, J.
Even so, the appellants would not be entitled to succeed, unless we hold, differing from the High Court, that s.11 of the Act confers a right on the appellants to have the order of Mehrotra, J., reviewed.
We have already extracted the provisions of a. 11.
Section 11 is in two parts: the first part of the section confers a right on a party to the proceedings under the Principal Act to apply to the court or authority for a review of the proceeding in the light of the provisions of the Act within 90 days from the commencement of the Act, and the second part issues a statutory injunction on such a court or authority to review the proceedings accordingly and to make an order as may be necessary to give effect to the provisions of the Principal Act, as amended by ss.2 and 4 of the Act.
The first question, therefore, is whether the order of Mehrotra, J., in an application under article 226 of the Constitution was in any proceeding under the Principal Act.
Obviously a petition under article 226 of the Constitution cannot be a proceeding under the Act: it is a proceeding 13 under the Constitution.
But it is said, relying upon certain passages in Maxwell on the Interpretation of Statutes, at p, 68, and in Crawford on "Statutory Construction ' at p. 492, that it is the duty of the Judge "to make such construction of a statute as shall suppress the mischief and advance the remedy," and for that purpose the more extended meaning could be attributed to the words so as to bring all matters fairly within the scope of such a statute even though outside the letter, if within its spirit or reason.
But both Maxwell and Crawford administered a caution in resorting to such a construction.
Maxwell says at p.68 of his book: "The construction must not, of course, be strained to include cases plainly omitted from the natural meaning of the words." Crawford says that a liberal construction does not justify an extension of the statute 's scope beyond the contemplation of the Legislature.
The fundamental and elementary rule of construction is that the words and phrases used by the Legislature shall be given their ordinary meaning and shall be constructed according to the rules of grammar.
When the language is plain and unambiguous and admits of only one meaning, no question of construction of a statute arises, for the Act speaks for itself.
It is a well recognized rule of construction that the meaning must be collected from the expressed intention of the Legislature.
So construed, there cannot be two possible views on the interpretation of the first part of the section.
Learned counsel suggested that we should read the relevant portion of the first part thus: "in any proceedings to set aside any assessment made on the basis of the Principal Act".
To accept this argument is to rewrite the section.
While the section says that the order sought to be reviewed is that made in a proceeding under 14 the Principal Act, the argument seeks to remove the qualification attached to the proceeding and add the same to the assessment.
The alternative argument, namely, that without changing the position of the words as they stand in the section, the expression ,on the basis of" may be substituted for the expression "under" does Dot also yield the results expected by the learned counsel.
It cannot be held with any justification, without doing violence to the language used, that a proceeding under article 226 of the Constitution is either one under the Principal Act or on the basis of the Principal Act, for it is a proceeding under article 226 of the Constitution to quash the order on the ground that it was made in violation of the Act.
An attempt is then made to contend that a proceeding under article 226 of the Constitution is a continuation of the proceedings before the Additional Collector and, therefore, the said proceedi ings are proceedings under the Act.
This leads us to the consideration of the question of the scope of the proceedings under article 226 of the Constitution.
Article 226 confers a power on a High Court to issue the writs, orders, or directions mentioned therein for the enforcement of any of the rights conferred by Part III or for any other purpose.
This is neither an appellate nor a revisional jurisdiction of the High Court.
Though the power is not confined to the prerogative writs issued by the English Courts, it is modeled on the said writs mainly to enable the High Courts to keep the subordinate tribunals within bounds.
Before the Constitution, the chartered High Court, that is, the High Courts at Bombay, Calcutta and Mad ras, were issuing prerogative writs similar to those issued by the King 's Bench Division, subject to the same limitations imposed on the said.
writs.
In Venkataratnam vs Secretary of State for India(1), (1) (1930) I.L.P. 15 a division Bench of the Madras High Court, consisting of Venkatasubba Rao and Madhavan Nair, JJ,; held that the jurisdiction to issue a writ of certiorari was original jurisdiction.
In Ryots of Garabandha vs The Zamindar of Parlakimedi (1), another division Bench of the same High Court, consisting of Leach, C. J., and Madhavan Nair J., considered the question again incidentally and came to the same conclusion "and held that a writ of certiorari is issued only in exercise of the original jurisdiction of the High Court.
In Ramayya vs State of Madras (2), a division Bench, consisting of Govinda Menon and Ramaswami Oounder, JJ,, considered the question whether the proceedings under article 226 of the Constitution are in exercise of the original Jurisdiction or revisional jurisdiction of the High Court, and the learned Judges held that the power to issue writs under article 226 of the Constitution is original and the jurisdiction exercised is original jurisdiction.
In Moulvi Hamid Hassan Nomani vs Banwarilal Boy (3), the Privy Council was considering the question whether the original civil jurisdiction which the Supreme Court of Calcutta possessed over certain classes of persons outside the territorial limits of that jurisdiction has been inherited by the High Court.
In that context the Judicial Committee.
observed.
"It cannot be disputed that the issue of such writs is a matter of original jurisdiction".
The Calcutta.
High Court, in Budge Budge Munici pality vs Mangru(4) came to the same conclusion, namely, that the jurisdiction exercised under article 226 of the Constitution is original as distinguished from appellate or revisional jurisdiction; but the High Court pointed out that the jurisdiction, though original, is a special jurisdiction and should not be (1) I.L.R (2) A.I.R. 1952 Nad. 300.
(3) (1942) It M. L. J. 32, 35.
(4) 16 confused with ordinary civil jurisdiction under the Letters Patent.
The Andhra High Court in Satyanarayanamurthi vs 1.
T. Appellate Tribunal (1) described it as an extraordinary original jurisdiction.
It is, therefore, clear from the nature of the power conferred under article 226 of the Constitution and the decisions on the subject that the High Court in exercise of its power under article 226 of the Constitution exercises original jurisdiction, though the said jurisdiction shall not be confused with the ordinary civil jurisdiction of the High Court.
This jurisdiction, though original in character as contrasted with its appellate and revisional jurisdictions, is exercisable throughout the territories in relation to which it exercises jurisdiction and may.
for convenience, be described as extraordinary original jurisdiction.
If that be so, it cannot be contended that a petition under article 226 of the Constitution is a continuation of the proceedings under the Act.
There is another insurmountable difficulty in accepting the construction suggested by learned counsel.
Under the second part of the section a party to the earlier proceedings may within the prescribed time apply to the court or authority for a review of the proceedings in the light of the pro visions of the Act, and the court or authority to which the application is made shall review the proceedings accordingly, and make such order, if any, varying or revising the order previously made as may be necessary to give effect to the Principal Act, as amended by section 2 of the Act.
Should it be held that this section applies to an order made by a High Court under article 226 of the Constitution, the statutory mandatory injunction issued under the second part of the section to the High Court to make an order in a particular way would be constitutionally void.
Under the Constitution the Legislature of a (1) A. 1.
R. 1957 Andhra 123.
17 State derives its authority to make laws under article 245 of the Constitution, which reads: (1) " 'Subject to the provisions of this Con stitution, Parliament may make laws for the whole or any part of the territory of India, and the, Legislature of a State may make laws for the whole or any part of the State.
" Article 245 is, therefore, subject to article 226 of the Constitution.
It follows that no law made by the Legislature of a State can be in derogation of the powers of the High Court under article 226 of the Constitution.
It is well settled that article 226 confers a discretionary power on the High Courts to make or issue appropriate orders and writs for the enforcement of any of the rights conferred by Part III of the Constitution or for any other purpose.
While article 226 confers a discretionary power on the High Court, the second part of section 11 of the Act enjoins on the High Court to make an order in a particular way.
We should not give such a construction to the section as would bring it into conflict with article 226 of the Constitution and which ,would have the effect of invalidating it to that extent.
On the other hand, the construction adopted by us would be consistent with the second part of the section, for, if the first part is confined only to an order made by any court or authority, other, than the High Court in exercise of its jurisdiction under article 226 of the Constitution, both the parts fall in a piece, and we would not only be giving a natural meaning to the express words used in the section but we would also be saving the section from the vice of constitutional invalidity.
Learned counsel for the appellants seeks to got over this obvious difficulty by contending that the word "shall" may be treated as 'may" so that the discretion of High Court under article 226 may be maintained.
Alternatively, he contends that the second part of the section comprises two parts the 18 first empowers an aggrieved party only to file an application, and the second imposes a statutory duty, and that the first may conveniently be served from the second and its validity to that extent sustained.
The first argument is contrary to the express words used and the intention of the Legislature.
If we read "shall" as ', 'may" the same discretion will have to be given even to authorities, and courts other than the High Court, with the result the purpose of the section would be defeated.
On the other hand, if the expression "shall" is given its natural meaning, the section carries out the intention of the Legislature, viz., the mandatory injunction imposed on courts and authorities to restore the assessment declared invalid.
The decisions cited by the learned counsel in support of his construction are not of any help, for they were based upon the construction of the relevant provisions under consideration in those cases.
The second argument, if accepted, would be rewriting the section.
While the dominant intention of the Legislature is to issue a mandatory injunction on the courts or authorities to review their orders on a suitable application made to them, we would be deleting it and thus defeating the object of the Legislature.
For the foregoing reasons, we have no hesitation in holding that, on a plain reading of the clear words used in the section, it does not apply to an order made by the High Court under article 226 of the Constitution.
Lastly it is contended that even if section 11 does not apply, we should treat the application filed by the appellants before the High Court as one made under Order 47 of the Code of Civil Procedure.
There are.
many objections for allowing the appellants to do so at this very late stage of the Proceedings.
The application was filed only under section 11 of the Act and no attempt was made either before Mehrotra, J., or before the division Bench of the High Court to ask for an amendment 19 or to sustain the petition under Order 47 of the Code, of Civil Procedure; nor did the appellants raise this plea in the petition filed for special leave or even in the statement of case as originally filed by them.
After the case was argued for sometime on an observation casually made by the Court, time was taken and for the first time this plea was taken in the additional statement of case filed by the appellants.
This is, therefore, a highly belated attempt to convert the application filed on one basis into that on another.
Further, the plea, if allowed, is not so innocuous or smooth sailing as it appears to be, but is brimming with many controversial questions.
It raises the following questions : (1) Whether the application treated as one made under order 47 of the Code of Civil Procedure was within time ; (2) if it was out of time, could the delay be excused without the appellant filing an application for excusing it and giving valid reasons for the same ; (3) whether an order made by the High Court in exercise of its powers under article 226 of the Constitution could be reviewed under Order 47 of the Code of Civil Procedure, and, if not, under section 151 of the said Code ; (4) whether the amendment 'of an Act with retrospective effect could be treated as an error on the face of the record or as a sufficient cause within the meaning of Order 47 of the Code of Civil Procedure for reviewing the final orders and decrees made by courts on the basis of the law obtaining at the time the said orders or decrees were made ; and (5) if the order of Mehrotra, J., was one made under Order 47 of the Code of Civil Procedure, would an appeal lie to a division Bench of the High Court under Order 43 of the Code.
We do not propose to express any opinion on the aforesaid questions.
It would be enough to say that we are not justified to allow the appellants to convert their petition to one made under Order 47 of the Code of Civil Pro 20 cedure at this very late stage, in view of the foregoing reasons.
In the result we hold that the order of the High Court is correct.
The appeal fails and is dismissed with costs.
MUDHOLKAR, J.
I agree with my learned brother that the appeal should be dismissed for the reasons stated in his judgment.
I, however, express no opinion on the question regarding the maintainability of the appeal under the Letters Patent against the decision of a single Judge in a case of this kind.
Appeal dismissed.

dataset_name: IN-Abs

summary:
The respondent, who owned agricultural properties in the different districts of Uttar Pradesh, was assessed to agri cultural income tax by the Additional Collector of Banaras.
On challenge by way of a petition under article 226 of the Constitution, assessment was quashed by the Allahabad High Court on the ground that the assessing authority had no ,jurisdiction to assess.
Under section 6 of the U.P. Act No. XIV of 1956 the assessments by the Additional Collector were validated and a party to the proceedings under Agricultural Income tax Act was given the right to move the Court or authority within the prescribed period to review the proceedings where in the assessments had been set aside on the ground that the assessing authority had no jurisdiction to make the assessment.
By section 11 the authority or court so moved was bound to review the order.
The State of Uttar Pradesh applied to the High Court for review of its earlier order quashing the assessment.
The single judge of the High Court held that section II of the Act did not apply to writ pro ceedings under article 226 of the Constitution.
On appeal the Division Bench held that the order for the single judge did not amount to a 'judgment ' under Ch.
VIII r.5 cl.10 of the Letter Patent and the Rules of Allahabad High Court and that section 11 of the Act did not apply to proceedings.
by way of a writ before the High Court.
On appeal by special leave by the State it was contended that the Division Bench was wrong and by an additional statement of case it was sought to be urged that the application for review should be treated as one under order 47 of the Code of Civil Procedure, 2 Held (per Sinha, C. J, Subba Rao, Ayyangar and Aiyar, jj.), that under cl.
IO of the Letters Patent of the Allahabad High Court and the Rules of the Court the expression 'judgment ' would even on the narrow view of the expression include the order in the present case whereby the statutory right given to the party was finally negatived and that the Division Bench was in error in holding that it was not a 'judgment '.
Held, further, that the proceeding under article 226 of the constitution were neither 'proceedings ' under the Act nor proceedings on the basis of the Act.
The proceedings under article 226 of the Constitution were independent and original proceeding and not a continuation of the assessment proceedings.
Venkataratnam vs Secretary of State for India, (1930) I.L.R.53 Mad.
979, Ryots of Garabandha vs The Zamindar of Parlakimedi I.L.R. , Ramayya vs State of Madras, A.I.R. 1952 Mad.
300, Moulvi Hamid Hassan Nomani vs Banwarilal Coy.
(1947) II M.L.J. 32, Budge Budge Municipality vs Mangru (1952) 57 C.W.N.25 and Satyanarayanamurthi vs 1.T. Appellate Tribunal, A.I.R.1957 Andhra 123, referred to.
The Act had to be interpreted consistently with the Constitution and there was no power in the State Legislature to compel the High Court to act in a particular way in exercise of its jurisdiction under article 226 of the Constitu tion.
Section, II could only apply to cases 'Where any court or authority other than the High Court in exercise of its jurisdiction under article 226 of the Constitution, had decided the matter.
Held, further, that construing shall ' in section II of the Act as `may ' would defeat the very provisions of the Act.
Held, also, that the contention that the application under s.11 of the Act may be treated as one order 47 of the Code of Civil Procedure, was highly belated and further there were many possible objections to such a course and it cannot be acceded to.


judgement:
iminal Appeal No. 23 of 1952.
Appeal from an Order dated 18th January, 1952, of the High Court of Judicature at Calcutta (Chunder J.) in Criminal Reference Case No. 110 of 1951.
N.C. Talukdar and A. D. Dutt for the appellant.
Ajit Kumar Dutta, and section N. Mukherjee for the respondents.
March 12.
The Judgment of the Court was delivered by BHAGWATI J.
This is an appeal under article 134(c) of the Constitution and raises the point whether a single Judge of the High Court of Judicature at Calcutta could bear a reference from an order under sections 431 and 432 of the Bengal Municipal Act XV of 1932.
The jurisdiction of a single Judge of the High Court in criminal matters is defined in the proviso to 768 rule 9, Chapter II, Part I of the Rules of the High Court and the relevant portion of the proviso runs as under: "Provided that a single Judge may hear any Ap.peal, Reference, or Application for revision other than the following: (1 )One relating to an order of sentence of death, transportation, penal servitude, forfeiture of property or of imprisonment, not being an order of imprisonment in default of payment of fine. . . . . " A single Judge therefore has no jurisdiction to deal with any reference or application for revision which relates to an order of forfeiture of property, and the question that arises in this appeal is whether the order passed by the learned District Magistrate, Baukura, under sections 431 and 432 of the Bengal Municipal Act, 1932, amounted to an order of forfeiture of property within the meaning of the above proviso.
The relevant, facts may be shortly stated as follows.
The respondents are the proprietors of several oil mills in the town of Bankura within the Bankura Municipality.
The Sanitary Inspector of the Municipality received on 6th March, 1950, information that the Manager of the Sree Gouranga Oil Mill, belonging to the respondents had deposited about 300 bags of rotten, decomposed, unwholesome mustard seeds in the courtyard of the Rice Mill of Sree Hanseswar Maji and about 600 bags of unwholesome mustard seeds in the mill godown of the respondents for sale and for the preparation of oil therefrom for sale.
On an application made by him in that behalf the Sub Divisional Officer, Bankura, duly issued a search warrant and the Sanitary Inspector on the same day found in possession of the respondents a huge quantity of mustard seeds which were found to be highly unsound, unwholesome and unfit for human consumption.
He seized the said seeds between the 6th March, 1950, and the 8th March, 1950, and after the completion of the seizure asked for written consent of the 769 respondents for destruction of the said mustard seeds which they refused.
The Sanitary Inspector therefore kept all the bags thus seized, viz., 951 1/2 bags, in ,the mill godowns of the respondents with their consent.
After several proceedings which it is not necessary to mention for the purpose of this appeal, the District Magistrate, Bankura, in M. P. No. 58 of 1950 under sections 431 and 432 of the Bengal Municipal Act on the 14th August, 1951, found that the stock of mustard seeds which was seized on the 6th March, 1950, was on that date and still was unfit for human consumption.
But in so far as no oil was coming out of the seeds and the seeds were capable of being used is manure or for cattle food he would not direct their destruction but directed that they should be disposed of by the Commissioners of the Bankura Municipality as manure or as cattle food ensuring before such disposal that the stocks in question bad been rendered incapable of being used as human food.
The respondents filed a petition under section 435 of the Criminal Procedure Code before the Additional Sessions Judge, Bankura, against the order of the District Magistrate, for a reference to the High Court.
The Additional Sessions Judge held that the seizure of the mustard seeds was illegal and that there was no evidence to show that the seeds in question were deposited in or brought to the places for the purpose of their sale or of preparation of oil for human consumption.
He therefore made a reference under section 438 of the Criminal Procedure Code to the High Court for quashing the proceedings.
Chunder J. accepted the reference, set aside the order of the District Magistrate and remanded the case for retrial by some other Magistrate, as in the opinion of the learned Judge, the District Magistrate had decided the matter upon his own observations formed during the inspection of the mustard seeds and not on the material in the record.
An application was made to a Bench of the High Court and leave was allowed on the point whether Chunder J. had jurisdiction sitting singly to bear the reference in view of the rule cited above.
770 Sri N.C.Taluqdar for the appellants urged that the order made by the District Magistrate, Bankura, under sections 431 and 432 of the Bengal Municipal Act, 1932, was an order for forfeiture of property within the meaning of the proviso to the rule and Chunder J. had no jurisdiction to deal with the reference and his order should be quashed.
Section 431 provides: "(1) Where any living thing, article of food, drug seized under section 428 is not destroyed by consent under sub section (1) of section 429, or where an article of food so seized which is perishable is not dealt with under sub section(2) of that section, it shall be taken before a Magistrate as soon as may be after such seizure.
(2)If it appears to the Magistrate that any such living thing is diseased or unsound or that any such food or drug is unsound, unwholesome or unfit for human food or for medicine, as the case may be. . . he shall cause the same to be destroyed at the expense of the person in whose possession it was at the time of its seizure, or to be otherwise disposed of by the Commissioners so as not to be capable of being used as human food or medicine Section 432 provides : "When any ' authority directs in exercise of any powers conferred by this chapter, the destruction of any living thing, food or any drug, or the disposal of the same so as to prevent its being used as food or medicine, the same shall thereupon be deemed to be the property of the Commissioners.
" The word "forfeiture" is defined in Murray 's Oxford Dictionary: " The fact of losing or becoming liable to deprivation of goods in consequence of a crime, offence, or breach of engagement the penalty of the transgression" or a "punishment for an offence".
It was contended that in so far as section 432 provided for the vesting of the condemned food or drug in the Commissioners the owner of the property was divested or deprived of the proprietary 771 rights therein and that the order made by the Magistrate under section 431 (2) was thus an order of forfeiture of the property.
This contention in our opinion is unsound.
According to the dictionary meaning of the word "forfeiture" the loss or the deprivation of goods has got to be in consequence of a crime, offence or breach of engagement or has to be by way of penalty of the transgression or a punishment for an off once.
Unless the loss or deprivation of the goods is by way of a penalty or punishment for a crime, offence or breach of engagement it would not come within the definition of for. feiture.
What is provided under section 431(2) is the destruction of the food or drug which is unsound, unwholesome or unfit for human food or medicine or the otherwise disposal of the same by the Commissioners so as not to be capable of being used as human food or medicine.
The vesting of such condemned food or drug in the Commissioners which is provided by section 432 is with a view to facilitate the destruction or the otherwise disposal of such food or drug by the Commissioners and is in no way a forfeiture of such food or drug by the Municipality.
The condemned food or drug by reason of its being found unsound, unwholesome or unfit for human food or medicine cannot be dealt with by the owner.
It must be destroyed or otherwise disposed of so as to prevent its being used as human food or medicine.
What the Municipal Commissioners are empowered to do therefore is what the owner himself would be expected to do and what is ordered to be done therefore cannot amount to a forfeiture of the property.
The order is not a punishment for a crime but is a measure to ensure that the condemned food or drug is not used as human food or medicine.
That this is the true position is clear from the pro visions of Chapter XXIV of the Act which provides for penalties.
Sections 501 to 504 prescribe penalties for specific offences and section 500 prescribes generally penalties for the several offences therein mentioned.
Section 431 however does not figure therein.
100 772 Forfeiture of property is thus not one of the penalties or punishments for any of the offences mentioned in the Bengal Municipal Act.
In the relevant provision in the rule of the ' High Court an order of sentence of death, transportation, penal servitude, forfeiture of property or of imprisonment are grouped together.
These orders are purely orders by way of penalty or punishment for the commission of crimes or offences and the forfeiture of property mentioned there is no other than the one which is entailed as a consequence of the commission of a crime or offence.
In order that such forfeiture of property would bar the jurisdiction of the single Judge it has to be a forfeiture of property which is provided by way of penalty or punishment for the commission of a crime or offence.
In spite of his labours Shri N. C. Taluqdar has not been able to point out to us any provision of the Bengal Municipal Act, 1932, which constitutes what is contemplated under section 431(2), a penalty or punishment for the commission of a crime or offence.
The offence that the respondent could be charged with is defined in section 421 of the Act and the punishment for that offence provided in section 500 is fine and not forfeiture.
We are therefore of the opinion that the order of the District Magistrate, Bankura, under sections 431 and 432 of the Bengal Municipal Act, 1932, dated 14th August, 1951, was not an order of forfeiture of property within the meaning of the proviso to rule 9, Chapter II, Part I, of the Rules of the High Court, and Chunder J. had the jurisdiction to entertain and decide the reference.
The result is that the appeal fails and is dismissed.
Appeal dismissed.
Agent for the appellant : Sukumar Ghose.
Agent for respondent: B. B. Biswas.

summary:
An order of a District Magistrate under sections 431 and 432 of the Bengal Municipal Act (XV of 1932) for the disposal of an article of food which has been seized under section 428 of the said Act is not an order of forfeiture of property within the meaning of the proviso to rule 9 of Chap.
II of Part II of the Calcutta High Court Rules, and a Single Judge of the said High Court has jurisdiction to hear a reference from such an order.
Unless the loss or deprivation of property is by way of penalty or punishment for a crime, offence or breach of engagement it would not amount to a "forfeiture" of property.


judgement:
Appeal No. 329 of 1960.
717 Appeal from the judgment and order dated October 28, 1958, of the Punjab High Court in L. P. A. No. 72 of 1958.
N. N. Keswani, for the appellant.
N. section Bindra and P. D. Menon, for the respondents.
August 27.
delivered by SHAH, J. The appellant Madan Gopal was appointed an Inspector of Consolidation by order dated October 5, 1953 of the Settlement Commissioner of the Patiala and East Punjab States Union.
The appointment was ,on temporary basis and terminable with one Month 's notice".
On February 5, 1955, the appellant was served with a "charge sheet" by the Settlement Officer, Bhatinda that he (the appellant) had received Rs. 150/ as illegal gratification from one Darbara Singh and bad demanded Rs. 30/ as illegal gratification from one Ude Singh.
The appellant was called upon to show cause why disciplinary action should not be taken against him if the allegations in the charge sheet were proved.
The appellant submitted his explanation to the charge sheet.
On February 22, 1955, the Settlement Officer submitted his report to the Deputy Commissioner Bhatinda, that the chage relating to recept of illegal gratification from Darbara Singh was proved.
The Deputy Commissioner by order dated March 17, 1955 ordered that the services of Madan Gopal Inspector be terminated forthwith and that in lieu of notice be will get one month 's pay as required by the Rules.
The appellant requested the Deputy Commissioner to review the order, and also submitted a memorial to the Minister for Revenue affairs.
Having failed to obtain relief, the appellant applied to 718 to the High Court of Pepsu for a writ under article 226 of the Constitution quashing the order dated March 17, 1965 on the"ground inter alia that the order of dismissal from service was in contravention of article 311 of the Constitution as no reasonable opportunity to show .
cause against the order of dismissal was at all given.
He also challenged the authority of the Settlement Officer to hold the enquiry and submitted that the procedure followed by that Officer in making the enquiry was irregular.
The petition was transferred to the High Court of Punjab on the reorganization of the State of Punjab.
Mr. Justice Bishan Narain who heard the application issued the writ prayed for, because, in his view, the order of termination of employment was in the nature of an order of punishment and an the provisions of article 311(2) had not been complied with by the Enquiry Officer, the.
Deputy Commis sioner or the Settlement Commissioner, the order was invalid.
In appeal under the Letters Patent, the order was reversed by, a Division Bench of the High Court.
The High Court held that the appellant was a temporary servant and had no right to hold the post he was occupying and by the impugned order the appellant was not dismissed or removed from service, but his employment was terminated ,in exercise of authority reserved under the terms of employment, and no penalty was imposed upon the appellant, The appellant was a temporary employee, and hill employment was liable to be terminated by ,, 'notice of one mouth," without assigning.
any reason ' The Deputy Commissioner, however, did not act in exercise of this authority : the appellant was served, with a charge sheet setting out his mis demeanour, an enquiry was held in respect of the alleged misdemeanour and his employment was terminated because in the view of the Settlement Officer with 719 which view the Deputy Commissioner agreed. the misdemeanor was proved.
Such a termination amounted to casting a ,,stigma affecting his future career".
In State of Bihar vs Gopi Kishore Prasad (1), the learned Chief Justice in dealing with cases of termination of service or discharge of public servant on probation set out five propositions of which the 3rd is enunciated thus "But.
if instead of terminating such a person 's service without any enquiry, the employer chooses to hold an enquiry into his alleged misconduct, or inefficiency, or for some similar reason, the termination of service is by way of punishment, because it puts a stigma on his competence and thus affects his future career.
In such a case, he is entitled to the protection or article 311 (2) of the Constitution.
" It is true that in that case the Court was dealing with the case of a public servant on probation whereas the appellant was a temporary employee, but, in principle, it will make no difference whether the appellant was a probationer or a temporary employee.
The appellant had been served with a charge sheet that he.
had received illegal gratification from one person and had demanded illegal gratification from another.
The appellant was given an opportunity to make his defence and it appears that witnesses in support of the charge and in defence were examined before the Settlement Officer.
The Settlement Officer reported that on the evidence he was satisfied that the appellant had received Rs. 150/ as illegal gratification and that the appellant did not ,enjoy good reputation and was a person of doubtful integrity".
It is now well settled that the protection of article 311 (2) of the Constitution applies as much to a temporary public (1) A.I.R. 1960 S.C. 689, 720 servant as to permanent public servants.
By virtue of article 311 of the Constitution the appellant was not liable to be dismissed or removed from service until he had been given reasonable opportunity against the action proposed to be taken in regard to him.
The appellant was given no such opportunity and article 311 of the Constitution was therefore not complied with.
Counsel appearing for the State of Punjab contended that the order dated March 17, 1955, was not the order pursuant to which employment ' of the appellant was terminated, the effective order being one passed by the Settlement Officer on March 30, 1955.
No such order is however found on the record, and it appears that in the written statement filed by the State in the High Court it was expressly admitted that the employment of the appellant was terminated on March 17, 1955.
Counsel also contended that enquiry was made by the Settlement Officer for the purpose of ascertaining whether the appellant who was a temporary employee should be continued in service or should be discharged under the terms of his employment, and to "a termination made pursuant to such an enquiry the protection of article 311 (2) of the.
Constitution was not attracted, and in support of his submission counsel relied upon a judgment of this Court in the State of Orissa vs Ram Narayan Das (1).
In Ram Narayan Das 's case enquiry was made pursuant to Rules governing the conduct of public servants for ascertaining whether the probation of the public servant concerned should be con tinued and a notice to show cause in that behalf was served upon him.
On the report of the enquiry officer that the work and conduct of the public servant *as unsatisfactory, an order of termination of employment was passed without affording him an (1) ; 721 opportunity of showing cause against the action proposed to be taken in regard to him.
This Court pointed out that the public servant had no right to the post he occupied and under the terms of his appointment he was liable to be discharged at any time during the period of probation.
It was observed that mere termination of employment ;does not carry with it "any evil consequences" such as forfeiture of his pay or allowances, loss of seniority, stoppage or postponement of future chances of promotion etc.
and, therefore, there was no stigma affecting the future career of the public servant by the order terminating his employment for unsatisfactory work and conduct.
"The enquiry against the respondent was for ascertaining whether he was fit to be confirmed.
An order discharging a public servant, even if a probationer, in an enquiry on charges of misconduct. negligence, inefficiency or other disqualification, may appropriately be regarded as one by way of punishment.
, but an order discharging a probationer following upon an enquiry to ascertain whether he should be confirmed, is not of that nature x x x x x The third proposition in the latter (Gopi Kishore Prasad 's) case refers to an enquiry into allegations of misconduct or inefficiency with a view, if they were found established, to imposing punishment and not to an enquiry whether a probationer should be confirmed.
Therefore, the fact of the holding of an enquiry is not decisive of the question.
What is decisive is whether the order is by way of punishment, in the light of the tests laid down in Parshotam Lal Dhingra case (1).
" In this case the enquiry made by the Settlement Officer was made with the object of ascertaining whether disciplinary action should be taken against the appellant for his alleged misdemeanour.
It was clearly an enquiry for the purpose of taking (1) (1958) S.C.R.828.
722 punitive action including dismissal or removal from service if the appellant was found to have committed the misdemeanour charged against him.
Such an enquiry and order consequent upon the report made in the enquiry will not fall within the principle of Ram Narayan Das 's case The appeal is therefore allowed and the order passed by the High Court is set aside and the order passed by Mr. Justice Bishan Narain is restored with costs in this Court and the High Court.
Appeal allowed.

summary:
The appellant, a temporary Government servant, was served with a charge sheet alleging misconduct.
An enquiry was held on the charges by the Settlement Officer and the appellant was found guilty.
The Deputy Commissioner accepting the findings of the Settlement Officer and without giving a reasonable opportunity to the appellant of showing cause against the action proposed to be taken in regard to him terminated his services after giving him one month 's pay in lieu of one month 's notice.
The appellant changed the termination of his service by way of a writ petition before the Punjab High Court.
The Single judge granted the writ quashing the order.
The Division Bench reversed the Single Judge 's order.
Held, that the termination of the appellant 's service which was preceded by an enquiry into his alleged misconduct and based on the finding of misconduct, amounted to casting a stigma affecting his future career, and, then being non compliance with article 311(2) of the Constitution of India in that the appellant was not afforded the opportunity to show cause against the proposed punishment, the order contravened article 311(2) of the Constitution.
Purushottam Lal Dhingra vs Union of India, (1958) S, C. R. 828, referred to.
State of Bihar vs Gopi Kishore Prasad A. 1.
R. 1960 section C. 689, followed.
State of Orisa vs Ram Narain Das, ; , distinguished.