judgement:
91 of 1956.
Petition under article 32 of the Constitution of India for enforcement of fundamental rights.
section P. Sinha, Shaukat Hussain, E. Udayarathnam and section section Shukla, for the petitioners.
N. section Bindra, R. H. Dhebar and T. M. Sen, for the respondents Nos. 1 to 4. 1961.
March 22.
The Judgment of the Court was delivered by 532 SARKAR, J.
One Abdul Hai died about 1943.
He left certain immovable properties.
He had three wives and children by each.
One of his wives predeceased him.
On his death the wives and children, surviving him, succeeded ' to these properties in certain shares.
One of the surviving wives and a daughter died subsequently.
It appears that the remaining wife of Abdul Hai and his six children by her, went to Pakistan but the time when they did so does not appear.
It is not however disputed that they had become evacuees and their shares in the properties could be properly declared evacuee property.
A notice under section 7 of the was in fact issued for the purpose of declaring these persons evacuees and their shares in the properties, evacuee property.
Proceedings were taken pursuant to the notice and on August 14, 1952, an order was made declaring the migrants evacuees and a 4/7th share in certain properties, evacuee property as belonging to them.
Thereafter other proceedings were taken under , and an order was made on March 23, 1954, under section 11 of this Act vesting the entirety of the properties referred to in the order of August 14, 1952 in the Custodian of Evacuee Properties, Bhopal.
This petition under article 32 of the Constitution challenges the validity of the orders of August 14, 1952, and March 23, 1954, as violating the petitioners ' fundamental right to hold property, to wit, their shares in the properties covered by the orders.
It is presented by the surviving children of Abdul Hai by his two deceased wives, excepting Abdul Aziz.
Abdul Aziz however has been made a respondent to the petition but is not opposing it.
It is not in dispute that the petitioners and Abdul Aziz never became evacuees and are entitled to undivided shares in the properties declared to have vested in the Custodian in their entirety.
The petition is opposed by the other respondents, namely, the Government of India and various officers concerned with the Acts, and it will be convenient to describe them alone as the respondents.
533 The first question raised is as to the validity of the order dated August 14, 1952, made under the Act of 1950.
It is said that the order is a nullity as the notice under section 7 of this Act on which it was based, was bad for the reason that it was issued to Abdul Aziz who was, admittedly, not an evacuee.
It seems to us that it is unnecessary to decide this question for it is not a matter with which the petitioners are in any way concerned.
The proceedings under that Act did not purport to affect their interest in the properties and they cannot, therefore, challenge the order made under it.
Further, as we have earlier said, it is not in dispute that the shares of the surviving wife of Abdul Hai and her children in the properties could properly be declared evacuee property under the Act since they had migrated to Pakistan.
The order of August 14, 1952, only declared what purported to be their shares, to be evacuee property.
By such a declaration no right of the petitioners is affected.
The second question raised concerns the order of March 23, 1954, made under the Act of 1951.
This order vests the entirety of certain properties left by Abdul Hai including the petitioners ' shares in them, as evacuee property and, therefore, clearly affects the petitioners.
We think that the petitioners ' grievance against this order is of substance and the order as it stands cannot be sustained.
This order was made under section 11 of the Act of 1951.
This Act was passed "to make special provisions for the separation of the interests of evacuees from those of other persons in property in which such other persons are also interested": see the preamble to the Act.
It creates an officer called the "Competent Officer" for effecting such separation.
The disputed order was made by such an officer.
Section 2(d) defines "composite property", which, so far as is material, is in these terms: section 2(d).
"composite property" means any property which, or any property in which, an interest has been declared to be evacuee property or has vested in the Custodian under the (XXXI of 1950) and 534 (i) in which the interest of the evacuee consists of an undivided share in the property held by him as a co sharer or partner of any other person, not being an.
evacuee; or (ii) in which the interest of the evacuee is subject to mortgage in any form, in favour of a person, not being an evacuee; or (iii) in which the, interest of a person, not being an evacuee, is subject to mortgage in any form in favour of an evacuee; or. .
Section 2(b) defines a "claim" as follows: section 2(b): "Claim" means the assertion by any per person, not being in evacuee, of any right, title or interest in any property (i) as a co sharer or partner of an evacuee in the property; or (ii) as a mortagagee of the interest of an evacuee in the property; or (iii) as a mortgagor having mortgaged the property or any interest therein in favour of an evacuee;. . .
Section 6 authorises a Competent.
Officer to issue, "for the purpose of determining or separating the evacuee interest in a composite property", notices requiring persons claiming interest in any composite property, to submit their claims to him.
Section 7 deals with the procedure, the form and the time of making the claims.
Section 8 lays down that on receipt of a the Competent Officer shall make an enquiries in the manner provided and pass an order determining the interest of the evacuee and the claimant in the property.
It, also provides that the order shall contain, among others, the following particulars: (1) in any case where the evacuee and the claimant ire co sharers or partners, their respective shares in the property and the money value of such shares; (2) in any case where the claim is made by a mortgagor, the amount due to the evacuee; and (3) in any case, where the claim is made by a mortgage, the amount due under the claim in accordance with the provisions of section 9. 535 Sub section (2) of section 8 is in these terms: section 8(2): Where the Custodian under the (XXXI of 1950), has determined that the property in question or any interest therein is evacuee property, the decision of the Custodian shall be binding on the competent officer: Provided that nothing contained in this sub section shall debar the competent officer from determining the mortgage debt in respect of such property or any interest therein or from separating the interest of the evacuee from that of the claimant under section 10.
Claims by mortgagees over evacuee properties are dealt with by section 9.
Section 10 gives the Competent Officer power to separate the interests of the evacuee from those of the claimant.
It provides that the Competent Officer "in particular may: (a) in the case of any claim of a co sharer. (i) direct the custodian to pay to the claimant the amount of money assessed in respect of his share in the composite property or deposit the same in a civil Court having jurisdiction over such property and deliver possession of the property to the Custodian and the claimant may withdraw the amount in deposit in the civil Court; or (ii) transfer the property to the claimant on payment by him of the amount of money assessed in respect of the share of the evacuee in the property; or (iii) sell the property and distribute the sale proceeds, thereof between the Custodian and the claimant in proportion to the share of the evacuee and of the claimant in the property; or (iv) partition the propert y according to shares of the evacuee and the claimant and deliver possession of the shares allotted to the evacuee and the claimant to the Custodian and the claimant respec tively;. .
Then comes section 11 which, in certain circumstances, vests the entire property in a Custodian.
It was under this section that the order now being considered 536 was passed and it will be convenient to set it out later.
It is said on behalf of the respondents that notices under section 6 of the Act of 1951, both general and special,.
the latter addressed to the petitioners, asking for submission of claims in respect of the properties had been issued but no claim was submitted by any one.
The learned counsel for the respondents produced a copy of one of such notices which was in ' the form set" out below: "Subject: 105.10 acres agricultural land and one house in village Junapari Tahsil Berosia (4/7 share of Abdul Aleem etc.
evacuees) To Shri Abdul Aziz and his two brothers village Junapani (Tahasil Berosia).
FORM 'C ' WHEREAS information has been received that you have an interest in the composite property described in the Schedule hereto annexed.
AND WHEREAS the evacuee interest in the said property is to be separated from other interests.
I, NOW, hereby call upon you to submit your claim to me in the prescribed 'form within sixty days from the date of this notice.
" Abdul Aleem mentioned in this notice is one of the children of Abdul Rai who had evacuated to Pakistan.
The order that was passed by the Competent Officer under section 11 of the Act of 1951, on March 23, 1954, recited that notices inviting claims were issued but no claims had been submitted, and then concluded, "So it is proved that no claim is filed deliberately though the individual notice has been served by post under a postal certificate.
The whole Composite property listed by Custodian shall vest free of encumbrances and liabilities in the Custodian Bhopal U/s 11 of the .
" It is the validity of this order that is questioned by the petitioners.
They admit that they filed no claims but they deny that any notice was served on them 537 and also otherwise challenge its validity.
We do not think it necessary to go into the question of the validity of the notice for it seems to us that even if there was valid notice, the order challenged cannot be upheld.
The question is, was the order justified by section II of the Act of 1951? That section so far as relevant reads thus: section 11(1).
Where in respect of any property, notice under section 6 is issued but no claim is filed or found to exist or where any claim in respect of such property is found to exist and the competent officer separates the evacuee interest therein under section 10, the whole property, or, as the case may be, the evacuee interest in the property thus sepa rated shall vest in the Custodian free from all encumbrances and liabilities and any payment, transfer or partition made or effected under section 10, in satisfaction of any claim in respect of the property shall be a full and valid discharge of all claims in respect of the property.
The respondents contend that the notice mentioned in the section having been issued and no claim pursuant thereto having been filed, the whole property had to vest in the Custodian and therefore the order of the Competent Officer was valid.
This contention seems to us to proceed on a misreading of the section.
Notices under section 6 are issued "for the purpose of determining or separating the evacuee interest in a composite property".
The object of the notice can therefore be one or other of two things, namely, for determining the evacuee interest or for separating the evacuee interest, in a composite property.
These are two entirely different things and are so treated in the Act as will appear from the definition of composite property and sections 8, 9 and 10.
The question of determining the evacuee interest arises when the interest is either a mortgagor 's or mortgagee 's interest in property or an undivided share in property the extent of which is not known.
The determination is then made as provided in cls.
(b), (c) and (d) of section 8(1), ascertaining the quantum of the interest as mortgagor, 68 538 mortgagee or co sharer, as the case may be.
A question as to separation of interest can arise, of course, only when that interest is known.
This is done under section 10 of the Act.
A case of separation may arise, for example, when the evacuee is found to have a definite undivided share in property.
Now, an evacuee may be found to have a definite undivided share as a result of enquiry under section 8 of the Act of 1951 or under the order made by the Custodian under a. 7 of the Act of 1950.
In the present case the Custodian had held under section 7 of the Act of 1950 that the evacuees were only entitled to 4/7th share in certain properties.
This will appear from the notice under section 6 of the Act of 1951 which we have earlier set out.
Section 8(2) says that the declaration by the Custodian under the Act of 1950 that any interest in property is evacuee property shall be binding on the Competent Officer, but this shall not prevent him from separating under section 10, the interest of the evacuee from that of the claimant.
In the present case the notice was expressly for the purpose of separation.
We have to read section 11 of the Act of 1951 in the light of the preceding sections.
We have also, in doing so, to remember that the object of the Act of 1951 is not to vest in the Custodian property which was not evacuee property but to vest in him only the evacuee interest in property after determining or separating, as the case may be, that interest from the interests of other persons in the manner laid down.
It has further to be remembered that it has been held by this Court that no property vests in the Custodian unless proceedings under section 7 of the Act of 1950 had been taken: Ebrahim Aboobaker vs Tek Chand Dolwani (1).
Section 11 therefore cannot vest in the Custodian any property which was not evacuee property; it cannot have the effect of making the entire property vest in the Custodian as evacuee property where the order under section 7 of the Act of 1956 held that a certain share in it only was evacuee property.
It would follow that when section 11 makes the whole property vest in the Custodian in the absence of a claim (1) ; 539 having been filed or such claim having been filed but found to be unsustainable, it deals with a case where the claim is as mortgagor or mortgagee or to an undivided share in a property where the order under section 7 of the Act of 1950 has declared the whole property to be evacuee property.
If it were not to be so read, then it would enable property admittedly not belonging to an evacuee, to vest in the Custodian.
Such could not have been the intention of the Act and would be against the decision of this Court earlier referred to.
The section therefore does not warrant the order of March 23, 1954, which purported to vest the entire properties in the Custodian though the Order under B. 7 of the Act of 1950 found only a four seventh share therein to be evacuee property.
We think it right to point out that it has not been contended on behalf of the respondent that the petition was .not maintainable.
We have therefore not gone into that aspect of the case and are not to be understood as having decided any question as to the maintainability of the petition.
In the result we get aside the order of March 23, 1954.
There will be no order as to costs.
This order will not however prevent proper steps being taken for the separation of the evacuees ' interest in the properties from the rest in accordance with the Act of 1951 or other provisions of law.
Petition allowed.

summary:
A Muslim died leaving some property and several heirs.
Some of the heirs became evacuees and their 4/7th share in the property was declared under section 7 of the , to be evacuee property.
There after, proceedings were taken for the separation of the interest of the evacuees, but as none of the claimants appeared, the Competent Officer passed an order under section II of the , vesting the entire property in the Custodian.
Held, that the order vesting the entire property in the Cus todian was illegal.
The share of the evacuees had been determined as 4/ 7ths and the Competent Officer was only required to separate it.
Section II could not vest in the Custodian any property which was not evacuee property.
This section deals only with cases where the whole property has been declared to be evacuee property and the claim is as mortgagor or mortgagee or to an undivided share in the property.
In such cases in the absence of a claim having been filed or having been filed and found unsustainable, section
II vests the whole property in the Custodian.
Ebrahim Aboobaker vs Tek Chand Dolwani, ; , referred to.


judgement:
140 and 177 to 191 of 1959.
Petitions under Article 32 of the Constitution of India for enforcement of Fundamental Rights.
M. R. M. Abdul Karim and K. R. Choudhury, for petitioners.
K. N. Rajagopala Sastri and D. Gupta, for respondents.
513 1961.
March 22.
The Judgment of the Court was delivered by KAPUR, J.
These are sixteen petitions under article 32 of the Constitution challenging the legality of the imposition of surcharge imposed on the income of the assessees under the Finance Acts of 1942, 1943, 1944 and 1945.
The assessment relates to four assessment years 1942 43, 1943 44, 1944 45 and 1945 46.
The petitioners are four partners of a firm named Mohammedaly Sarafaly & Co., Madras, which was carrying on business in hardware, stocks, shares, etc.
For the assessment years 1942 43 to 1945 46 this firm was treated as a registered firm under the Indian Income tax Act and therefore the partners were assessed on their respective shares of the profits from the business of the firm.
All assessments were completed before 1949 and total income for the purpose of assessment for those four years was about Rs. 29,00,000.
In 1955 the petitioners under a 'Voluntary Disclosure Scheme ' with regard to profits which had escaped assessment made a disclosure of their income and proceedings were taken under section 34 of the Income tax Act.
In the month of April, 1959, there was a reassessment on all the four partners and the total income for the four assessment years thus came to about Rs. 35 lakhs which included Rs. 29 lakhs already assessed.
On that income, income tax, super tax, and surcharge were levied.
The surcharge, according to the petition was Rs. 3,82,791.
It is this surcharge which is impugned as being, without the authority of law inasmuch as the then Federal Legislature, it is submitted, was not competent to levy the surcharge.
Provision for surcharge was made under section 8(1) of the Finance Act, 1942 (Act XII of 1942).
This section may now be quoted: Section 8(1) "Subject to the provisions of sub sections (2) and (3), (a) income tax for the year beginning on the 1st day of April, 1942, shall be charged at the rates specified in Part I of Schedule II increased in the cases to which subparagraph (b) of paragraph A 65 514 and paragraph B of that part apply with a sur charge for the purposes of the Central Government at the rate specified therein in respect of each such rate of income tax, and (b) rates of super tax for the year beginning on the 1st day of April, 1942, shall, for the purpose of section 55 of the Indian Income tax Act, 1922, be those specified in Part II of Schedule II increased in the cases to which paragraphs A, B and C of that Part apply by a surcharge for the purposes of the Central Government at the rate specified therein in respect of each such rate of super tax.
" It was contended that the Federal Legislature had no power under the Government of India Act, 1935,(25 and 26 Geo V, Ch. 42), to impose a surcharge "for the purposes of the Central Government".
The legislative power of the Federal Legislature was given in section 100 of the Government of India Act, 1935, and the power to tax income was contained in item 4 of List I of the Seventh Schedule which was as follows: "Taxes on income other than agricultural income.
" Part VII of the Government of India Act, 1935, deals with Finance, Property and Suits and the first chapter deals with Finance.
The relevant section which has been relied upon by the petitioners, i.e., section 138(1) of that Act, is in that Part which deals with Distribution of Revenues between the Federation and the Federal Units.
That section reads: Section 138(1) "Taxes on income other than agricultural income shall be levied and collected by the Federation. . . .
Provided that (a). . . . . . . . . . . (b) the Federal Legislature may at any time increase the said taxes by a surcharge for Federal purposes and the whole proceeds of any such surcharge shall form part of the revenues of the Federation.
" It was submitted that according to this section the power of the Federal Legislature to impose a surcharge was only for Federal purposes; that by section 8(1) of the Finance Act, 1942, and similar provisions in 515 the other Finance Acts of three following years, the surcharge had been levied "for the purposes of the Central Government" and that the terms "the purposes of the Central Government" and "for Federal purposes" were not the same but were two different concepts.
Section 311 of the Government of India Act, 1935, deals with Interpretation but "Federal purposes" is Dot defined in that section.
In subsection (3) of section 313 which is in Part XIII, dealing with Transitional Provisions, it is provided: Section 313(3) "References ' in the provisions of this Act for the time being in force to the Governor General and the Federal Government shall, except as respects matters with respect to which the Governor General is required by the said provisions to act in his discretion be construed as references to the Governor General in council, and any reference to the Federation, except where the reference is to the establishment of the Federation, shall be construed as a reference to British India, the Governor General in Council, or the Governor general, as the circumstances and the context may require.
" On the basis of this section it was urged that the term "Federal purposes" in section 138(1)(b) of the Government of India Act, 1935, means the purposes of the Federal Government, i.e., of the Governor General in Council or the Governor General as the case may be and that in the context it is a term of lesser amplitude than the term "purposes of the Central Government".
"Central Government" in section 3(8ab)(a) of the , was defined as follows: Section 3 (8ab) "Central Government ' shall (a) in relation to anything done or to be done after the commencement of of the Government of India Act, 1935, mean the Federal Government;".
"Federal Government" was defined in the in section 18 a as follows: Section 18 a " 'Federal Government ' shall (a) in relation to anything done or to be done after the commencement of of the Government of India Act, 1935, but before the establishment of the Federation, mean, as respects matters 516 with respect to which the Governor General is by and under the provisions of the said Act for the time being in force required to act in his discretion, the Governor General and as respects other matters, the Governor General in Council; and shall include (i) in relation to functions entrusted under section 124(1) of the said Act to the Government of a Province, the Provincial Government acting within the scope of the authority given to it under that subsection; and (ii) in relation to the administration of a Chief Commissioner 's Province, the Chief Commissioner acting within the scope of the authority given to him under section 94(3) of the said Act;".
From these sections it was argued that the term "Federal Government" in the Government of India Act 1935, only meant the Governor General or the Governor General in Council as the case may be but under the definition in the the term "Central Government" did not only denote the Governor General or the Governor General in Council as the case may be but also included for certain purposes the Provincial Governments acting within the scope of the authority given to them under a. 124(1) of the Government of India Act, 1935.
This argument, in our opinion, is wholly fallacious.
The power of the Federal Legislature to legislate was conferred by section 100, sub sections
(1) and (2).
The first sub section deals with the power of the Federal Legislature to legislate in regard to items contained in the First List which was exclusively within the power of the Federal Legislature.
The Federal Legislature therefore had the power to legislate in regard to any subject contained in List I and item 54 relating to taxes on income was in that List.
It has been held that the items have to be given the widest possible amplitude.
But it was submitted that the power under item 54 howsoever wide it may be is subject to the limitation contained in section 138(1), proviso (b).
Now "Federal purposes" is not defined in the Government of India Act, 1935, nor is it defined in the General 517 Clauses Act.
But there is sufficient indication in section 138 itself that the amounts recovered as surcharge were to form part of the Revenues of the Federation and such Revenues were to be expended for the purposes there indicated.
Under section 124(4) of the Government of India Act, 1935, where powers and duties are conferred by section 124 upon a Province or a Federated State there shall be paia by the Federation to the Province or the Federated State such sum as may be agreed Hence by the definitions given in . . .
Hence by the given in the no different concept of the words "purposes of the Central Government" was intended from what was intended by the use of the words "Federal purposes" in section 138(1)(b) of the Government of India Act, 1935.
These petitions therefore fail and are dismissed with costs.
One hearing fee.
Petitions dismissed.

dataset_name: IN-Abs

summary:
The petitioners as partners of a registered firm were assessed to income tax for the relevant assessment years.
Thereafter they made a disclosure of their income under a "Voluntary Disclosure Scheme" regarding profits which had escaped assessment, and on reassessment of the disclosed income income tax, super tax and surcharge were levied.
The levy of surcharge but not income tax and super tax was challenged as unauthorised.
Held, that the power to legislate for levy of tax on income was conferred upon the Federal Legislature by section 100 sub sections (1) and (2) of the Government of India Act, 1935, and item 54 of List I of the Seventh Schedule and the Federal Legislature was competent under that entry to legislate in regard to the levy of a surcharge on tax; section 138(1) proviso (b) did not restrict the amplitude of that legislative power.
The term "Federal purposes" in section 138 is not defined in the Government of India Act nor in the ; but there is sufficient indication in the section itself that surcharges were to form part of the Revenues of the Federation and such Revenues were to be expended for the purposes therein mentioned.
The concept of the words "purposes of the Central Government" under the was not different from what was intended by the use of the words "Federal purposes" in section 138(i) proviso (b) of the Government of India Act.


judgement:
Appeal No. 462 of 1957.
Appeal by special leave from the judgment and decree dated April 18,1952, of the former Nagpur High Court in First Appeal No. 88 of 1942.
C.B. Agarwala and K. P. Gupta, for the appellant No. 1.
Har Dayal Hardy and N. N. Keswani, for respondent No. 1. 1961.
March 16.
The Judgment of the Court was delivered by SUBBA RAO, J.
This appeal by special leave is directed against the judgment and decree of the High of Judicature at Nagpur confirming the judgment of the 2nd Additional District Judge, Jabalpur in Civil Suit No. 9 A of 1942, filed by respondents 2 to 7 herein claiming to be the reversioners of the estate of one Raja Ajitsingh.
Ajit Singh was the Raja of Saliya Estate consisting of 73 villages and other property situate in Jabalpur and Saugor Districts.
Ajit Singh died on January 2, 1910, leaving behind him two widows named Rani Khuman Kuar and Rani Anant Kuar and an illegitimate son named Ramraghuraj Singh.
Rani Anant Kuar died in or about 1914 and Rani Khuman Kuar passed away on February 1, 1922.
After the death of Raja Ajit Singh, the Estate was taken over by the Court of Wards on behalf of the widows in the year 1913 and remained in its possession till March 27, 1923.
After the death of Rani Khuman Kuar, the local Government issued a notification recognizing Ramraghuraj Singh as the successor to the Estate; but, for one reason or other, the 349 Court of Wards continued to manage the Estate on his behalf from September 23, 1923.
Ramraghuraj Singh died on April 23, 1932, and on his death the, first respondent, the son of Ramraghuraj Singh, was, declared as the ward of the Court of Wards which continued to manage the Estate on his behalf Respondents 2 to 6, claiming to be the reversioners to the Estate of Raja Ajit Singh, filed a suit on June 15, 1935, for recovery of possession of the Estate.
Appellants 1 and 2 are alleged to be the assignees pendente lite of the interest of the alleged reversioners.
The plaintiffs averred that RamraLhurai Singh was the son of one Jhutti by her husband one Sukhai and that as Raja Ajit Singh had no issue, he and the Ranies treated the boy as their son, that the Lodhi community to which Raja Ajit Singh belonged was not a sudra caste and that, therefore, even if Ramraghuraj Singh was the illegitimate son of Raja Ajit Singh, he was not entitled to a share, and that in any view half of the share of the widows in the Estate would devolve, on their death, on the reversioners to the exclusion of the illegitimate son.
They further pleaded that the possession of the Court of Wards of the entire Estate from January 2, 1910 to February 1, 1922, was adverse to the illegitimate son and, therefore, he lost his title, if any, to the said Estate.
The case of the first respondent was that Raja Ajit Singh belonged to the sudra caste, that Ramraghuraj Singh was the son of the said Raja by a continuously and exclusively kept concubine named Raj Dulari, that the widows never questioned the right of Ramraghuraj Singh to a share in the property of Raja Ajit Singh, that therefore there was no scope for the plea of adverse possession, and that, after the death of the widows, the succession to the Estate of Raja Ajit Singh in respect of one half share opened out and the illegitimate son, he being the nearest heir, succeeded to that share also.
The trial court as well as the High Court concurrently gave the following findings: (1) Raja Ajit Singh belonged to the sudra caste; (2) Raja Raghuraj Singh was the son of Raja Ajit Singh by a continuously and 350 exclusively kept concubine by name Raj Dulari, who had passed into the coneubinage of Raja Ajit Singh after the death of her husband; (3) as the illegitimate son of Raja Ajit Singh, Ramraghuraj Singh succeeded to a moiety of the Estate of his putative father and the two widows of Raja Ajit Singh succeeded to the other moiety of his Estate; (4) as there was no daughter or daughter 's son, after the death of the widows, Ramraghuraj Singh, being the sole surviving heir of his putative father, inherited a moiety of the Estate which was held by the widows during their lifetime; (5) Ramraghuraj Singh was all along in joint possession of the Estate with the widows, and, although the Court of Wards had assumed superintendence on behalf of the Ranies, he was not out of possession during their lifetime and as such his title could not be extinguished by adverse possession; (6) the plaintiffs ' suit was barred under section 26 of the Central Provinces Court of Wards Act; and (7) the plaintiffs ' claim was barred by limitation.
While the trial court held that it had not been established that the plaintiffs were the reversioners of Raja Ajit Singh, the High Court held that it had been proved.
In the result the trial court dismissed the suit and, on appeal, the High Court confirmed it.
The 2nd appellant died and his legal representatives were not brought on record and the appeal so far as the 2nd appellant is concerned has abated.
The 1st appellant alone proceeded with the appeal.
It is the usual practice of this Court to accept the concurrent findings of the courts below.
There are no exceptional circumstances in this case, at any rate none was brought to our notice, to compel us to depart from the usual practice.
We, therefore, accept the concurrent findings, namely, that Raja Ajit Singh was a member of the sudra caste and that Ramraghuraj Singh was the son of Raja Ajit Singh by a continuously and exclusively kept concubine named Raj Dulari, who passed into his concubinage after the death of her husband.
The main question that arises in this appeal is whether an illegitimate son of a sudra vis a vis his selfacquired property, after having succeeded to a half 351 share of his putative father 's estate, will be entitled to succeed to the other half share got by the widow, after the succession opened out to his putative father on the death of the said widow.
The answer to the question depends upon the content of the right of an illegitimate son to succeed to the self acquired property of his putative father.
The source of his right is found in the relevant Hindu Law texts.
Mitakshara in explanation of the texts of Manu and Yajnavalkya says in Chapter 1, section 12, in the following three verses thus: "1.
The author next delivers a special rule concerning the partition of a Sudra 's goods. 'Even a son begotten by a Sudra on a female slave may take a share by the father 's choice.
But, if the father be dead, the brethren should make him partaker of the moiety of a share: and one, who has no brothers, may inherit the whole property, in default of daughter 's sons '.
2.The son, begotten by a Sudra on a female slave, obtains a share by the father 's choice, or at his pleasure.
But, after the demise of the father, if there be sons of a wedded wife, let these brothers allow the son of the female slave to participate for half a share: that is, let them give him half as much as is the amount of one brother 's allotment.
However, should there be no sons of a wedded wife, the son of the female slave takes the whole estate, provided there be no daughters of a wife, nor sons of daughters.
But, if there be such the son of the female slave participates for half a share only.
3.From the mention of a Sudra in this place it follows that the son begotten by a man of a regenerate tribe on a female slave, does not obtain a share even by the father 's choice, nor the whole estate after his demise.
But, if he be docile, he receives a simple maintenance.
" No mention of a widow is found in the above verses, but in Dattaka Chandrika, the author says in V. 30,31 thus: "If any, even in the series of heirs down to the 352 daughter 's son, exist, the son by a female slave does not take the whole estate, but on the contrary shares equally with such heir." The leading decision on the rights of an illegitimate son is that of the Judicial Committee in Raja Jogendra Bhupati Hurri Chundun Mahapatra vs Nityanund Mansingh (1).
There, one Raja died leaving behind him a legitimate son and an illegitimate son.
On the death of the legitimate son, who had succeeded to the Raja, it was held that the illegitimate son succeeded to him by survivorship.
Sir Richard Couch cited two verses from Mitakshara Chapter 1, section 12.
We have already extracted the said verses.
Commenting upon these verses, the learned Judge observed at P. 132 thus: "Now it is observable that the first verse shews that during the lifetime of the father the law leaves the son to take a share by his father 's choice, and it cannot be said that at his birth he acquires any right to share in the estate in the same way as a legitimate son would do.
But the language there is very distinct, that "if the father be dead the bre thren should make him partaker of the moiety of a share".
So in the second verse the words are that the brothers are to allow him to participate for half a share, and later on there is the same expression: "The son of the female slave participates for half a share only".
" On that interpretation, he accepted the view of the Bombay High Court and held that an illegitimate son and a legitimate son, being members of an undivided Hindu family governed by Mitakshara, the illegitimate son becomes entitled to the whole of the immoveable property of the family if the legitimate son dies without any male issue.
The Judicial Committee again considered the right of an illegitimate son in Kamulammal vs Visvanathaswami Naicker (2).
There it was held that in a competition between a widow and an illegitimate son to the property of his putative father, the illegitimate son takes half of the (1) (1890) L.R. 17 I.A. 128.
(2) (1922) L.R. 50 I.A. 32.
353 property and the widow the other half.
Sir Lawrence Jenkins observed at p. 37 thus: "Here the contest is between the illegitimate son and the widow, and though the widow is not named in the text it is well settled that as a preferential heir to the daughter 's son she is included among those who share with the illegitimate son, and it would serve no useful purpose to speculate why she was not mentioned in the text.
" The status of the illegitimate son was subject of further scrutiny by the Privy Council in Vellaiyappa Chetty vs Natarajan (1).
There the question arose in the context of an illegitimate son 's right to maintenance from a joint family property after the death of his father who left no separate property.
The Judicial Committee held that he was entitled as a member of the family to maintenance out of the joint family property in the hands of the collaterals with whom the father was joint.
In dealing with the question of status of an illegitimate son, Sir Dinshah Mulla, speaking for the Court, after considering the relevant Hindu Law texts and decisions, arrived at the following conclusion at p. 15: "On a consideration of the texts and the cases on the subject their Lordships are of opinion that the illegitimate son of a Sudra by a continuous concubine has the status of a son, and that he is a member of the family; that the share of inheritance given to him is not merely in lieu of maintenance, but in recognition of his status as a son;. . .
It is not necessary to multiply decisions.
The law pertaining to the right of inheritance of an illegitimate son to his putative father 's; self acquired property may be stated, thus: An illegitimate son has the status of a son under the Hindu Law and he is a member of the family.
But his rights are limited compared to those of a son born in wedlock.
He has no right by birth and, therefore, he cannot demand partition during his father 's lifetime.
During the lifetime of his father, the law allows the illegitimate son to take (1) Mad.
1. 45 354 only such share as his father may give him.
But on his father 's death, he takes his father 's self acquired property along with the legitimate son and in case the legitimate son dies, he takes the entire property by survivorship.
Even if there is no legitimate son, the illegitimate son would be entitled to a moiety only of his father 's estate when there is a widow, daughter or daughter 's son of the last male holder.
In the absence of any one of the three heirs, he succeeds to the entire estate of his father.
From the premises it follows that an illegitimate son, except to the extent circumscribed by the.
Hindu Law texts, has the status of a son and is heir to the self acquired property of his putative father.
If that be his undoubted right under the Hindu Law, on what principle can he be deprived of his right of succession to the other moiety of his father 's property after the death of the widow? Under the Hindu Law, the death of the widow opens inheritance to the reversioners and the nearest heir at the time to the last full owner becomes entitled to possession.
When the succession opens, in a competition between an illegitimate son and other reversioners, the illegitimate son is certainly a nearer heir to the last male holder than the other reversioners.
If he was the nearest heir only yielding half a share to the widow at the time of the death of his putative father, how does he cease to be one by the intervention of the widow 's estate? As on the death of the widow the estate reverts back to the last male holder, the succession shall be traced to him, and, if so traced, the illegitimate son has a preferential claim over all other reversioners.
In Mayne 's Hindu Law, 11th edn., this position has been controverted in the following manner at p. 637: "The illegitimate Bon, though he inherits on the death of his putative father, along with or in default of male issue, widow or daughter, cannot come in as a reversionary heir on the death of the widow or daughter, as he is undoubtedly neither a sagotra nor a bhinnagotra sapinda of the last, male holder within the text of Manu.
" We regret our inability to accept this proposition.
355 for, if accepted, we would be speaking in two voices.
Once it is established that for the purpose of succession an illegitimate son of a Sudra has the status of a son and that he is entitled to succeed to his putative father 's entire self acquired property in the absence of a son, widow, daughter or daughter 's son and to a share along with them, we cannot see any escape from the consequential and logical position that he shall be entitled to succeed to the other half share when succession opens after the widow 's death.
The intervention of the widow only postpones the opening of succession to the extent of half share but it cannot divert the succession through a different channel, for she cannot constitute herself a new stock of descent.
The opinion expressed in Mayne 's Hindu Law is sought to be supported by the author by reference to a decision of the Madras High Court in Karuppayee Ammal vs Ramaswami (1).
But a reference to that judgment shows that no such proposition has been laid down therein.
There the facts were that on the death of a sudra, the last male owner of an estate, his widow succeeded to a moiety thereof and his illegitimate son to the other moiety; the widow then died leaving behind her a son of the daughter of the last male owner and the illegi timate son above mentioned.
The Madras High Court held that the daughter 's son was entitled to the moiety that had vested in the widow and the illegitimate son was not entitled to any portion thereof.
The reason for that conclusion is found at p. 868 and it is: "The principle underlying the doctrine of reverter referred to is that the last male holder 's estate is inherited by females who have no free right of alienation and who hold a peculiar kind of estate called "woman 's estate" and on whose death the then heir of the last male holder succeeds to the last male holder 's estate.
From its very nature, the doctrine could not apply legitimately to a case where the last male holder 's estate vested on his death not in a female heir but in a male heir also.
In such a case, the doctrine as such would not strictly apply, nor has it been, so far as we are aware, applied to such a case." (1) Mad.
356 The reason of the decision is therefore clear and that is when a daughter 's son succeeds to an estate, there is no further scope for the application of the doctrine of reverter.
The learned Judges expressly left open the present question when they said, "We are not now concerned with the question as to what would become of the property if the last of the daughters died without leaving a daughter son, in such circumstances".
This decision cannot, therefore, be invoked in support of the contention that in a case where the doctrine of reverter applies the illegitimate son is excluded from succession.
On the other hand, the Nagpur High Court in Bhagwantrao vs Punjaram (1) rightly came to the conclusion that where on a partition between a legitimate and an illegitimate son, the widow was allotted a share, on her death the illegitimate son was entitled to a share in the property.
We, therefore, hold that on the death of the widow, the illegitimate son, the father of the first respondent herein, succeeded to the other half share of the estate of his putative father Raja Ajit Singh.
It is.
next contended that the widows acquired an absolute interest in the estate of Raja.
Ajit Singh by adverse possession and, therefore, the property would devolve; not on Raja Ajit Singh 's heirs but on the heirs of the widows.
On the question of adverse possession also, both the courts below have held against the appellant.
But learned counsel argued that in the circumstances of this case the said find ing was a mixed question of fact and law.
It was said that the courts below missed the point that the Court of Wards, representing the widows, held the Estate adversely to Ramraghuraj Singh in respect of his half share and, therefore, the fact that during its management the widows did not deny the title of Ramraghuraj Singh or the fact that they admitted his title could not affect the question of adverse possession.
Assuming that learned counsel for the appellant was correct in his contention, we fail to see how the said legal position would advance the appellants case, for the Court of Wards admittedly managed only the (1) I.L.R. 357 widows ' limited estate and it is not the case of the appellant that the Court of Wards acquired on behalf of the widows an absolute interest in respect of the half share of Ramraghuraj Singh in the suit properties.
The plaintiffs themselves claimed to hereversioners of Raja Ajit Singh on the ground that the succession to him opened out when the widows died; and if their contention be accepted, namely, that the widows acquired an absolute interest in half of the property, they would be non suited in respect thereof on the simple ground that their suit was not to recover the property as the heirs of the widows.
But, as we have pointed out, the widows would have acquired a title by adverse possession in respect of the share of Ramraghuraj Singh only in their capacity as owners of a limited estate i.e., in regard to their half share they held it as widow 's estate and in respect of the other half share of Ramraghuraj Singh they acquired a right by adverse possession only a limited estate therein.
The result would be, when the widows died the succession to the estate of Raja Ajit Singh would open out and the illegitimate son, as the nearest heir, would succeed to the entire estate.
We, therefore, reject this contention.
In the result, the appeal fails and is dismissed.
The respondent will not get any costs as the Advocate for the respondent is absent in 'the Court when the judgment is being delivered.
Appeal dismissed.

summary:
A Sudra Hindu died leaving two widows and an illegitimate son by a continuously and exclusively kept concubine.
The son succeeded to a moiety of the estate and the widows succeeded to the other moiety.
The widows died without leaving any daughter or daughter 's son.
The reversioners filed a suit for recovery of possession of the estate.
The illegitimate son contended that on the death of his father he was entitled to succeed to half the estate the other going to the widows and that on the death of the widows he was entitled to the half share held by them.
Held, that the illegitimate son succeeded to half the estate upon the death of the father and succeeded to the other half on the death of the widows.
An illegitimate son has the status of a son under the Hindu Law; but he has no rights by birth and cannot claim partition during his father 's lifetime.
On the father 's death he takes his father 's self acquired property along with the legitimate son and in case the legitimate son dies, he takes the entire property by survivorship.
If there is no legitimate son, he would be entitled only to a half share when there is a widow, daughter ox daughter 's son of the last male holder.
In the absence of any one of these three heirs, he succeeds to the entire state.
If the widow succeeds to half the estate, upon her death succession again opens to half the estate of the last male 348 holder held by her and the illegitimate son, who has the status of a son, has a preferential claim over all other reversioners.
Raja jogendra Bhupati Hurri Chundun Mahapatra vs Nityarnund Mansingh, (1890) L.R. 17 I.A. 128, Kamulammal vs Visvanathaswami Naicker, (1922) L.R. 50 I.A. 32 and Vallaiyappa Chetty vs Natarajan, Mad. 1, referred to.
Karuppayee Ammal vs Ramaswami, Mad. 856, distinguished.
Bhagwantrao vs Punjaram, I.L.R. , approved.


judgement:
Appeal No. 16 of 1952.
Appeal from the Judgment and Order dated February 6, 1951, of the High Court of Judicature at Madras (Rajamannar C. J. and Somasundaram J.) in Civil Miscellaneous Petition No. 11307 of 1950, arising out of Order dated November 10, 1950, made in C. No. 2216 A 3 49 on the file of the Regional Transport Authority, Tanjore.
G. R. Jagadisa Iyer for the appellant.
V. K. T. Chari, Advocate General of Madras, (V. V. Baghavan, with him) for the respondent.
December 5.
The Judgment of the Court was delivered by GHULAM HASAN J.
This appeal brought by special leave under article 136 (1) of the Constitution is directed against the order dated February 6, 1951, of the High Court of Judicature at Madras, dismissing the petition of the appellant under article 226, praying for the issue of a writ of certiorari to quash the order dated November 10, 1950, passed by the respondent in the following circumstances : The appellant is the lessee of a site in the town of Tanjore in the State of Madras upon which he has a bus stand.
The bus stand originally belonged to the Tanjore Municipality and the appellant merely held a licence from that authority.
Later on, the title of the Municipality to the site was questioned by a third party and in a civil litigation which ensued the title of the Municipality was negatived.
Thereupon the appellant obtained the lease hold right of the site from the true owner and constructed a bus stand conforming to the design approved by the Municipality.
Besides sheds for passengers and vehicles it provided other amenities.
It was situate near the Railway Station and most of the buses leaving Tanjore for 38 292 out station journeys used this bus stand both as the starting point and as the terminus.
It appears that the site was approved as convenient and suitable for the bus stand both by the Municipality and the District authorities for buses plying from and into Tanjore.
The appellant held the licence for running the bus stand year after year.
In 1939 the Municipality granted him a licence for four months only instead of one year as required by section 270 (c) of the Madras Municipalities Act (V of 1920), and the appellant succeeded in vindicating his right for a whole year 's licence in the Civil Court by obtaining the relief for injunction and an order directing the issue of a licence against the Municipality for 1940 41.
The appellant carried on the business without let or hindrance until 1950 when the Municipality refused to renew his licence, whereupon he obtained a mandatory injunction from 'the Civil Court directing the Municipality to grant him a licence for the year 1950 51.
This decree was passed on October 7, 1950.
On February 21, 1950, however, the Regional Transport Authority, Tanjore, which is the respondent in the present appeal, declared the bus stand as unsuitable with effect from April 1, 1950, and altered the starting and the terminal points from that date.
This order resulted in the closing of the appellant 's bus stand.
This decision which was given by means of a resolution was confirmed subsequently by another resolution passed on March 31, 1950.
The appellant challenged the validity of these resolutions by a petition under article 226 before the Madras High Court on the ground that they were passed without jurisdiction and were contrary to the principles of natural justice as they were passed without notice to the appellant and without giving him an opportunity to defend his right.
The resolutions purported to have been passed under section 76 of the , which runs thus: " The Provincial Government or any authority authorized in this behalf by the Provincial GovernMent ' may, in consultation with the local authority 293 having jurisdiction in the area concerned,determine places at which motor vehicles may stand either indefinitely or for a specified period of time, and may determine the places at which public service vehicles may stand either indefinitely or for a specified period of time, and may determine the places at which public service vehicles may stop for a longer time than is necessary for the taking up and setting down of passengers." The Division Bench of the Madras High Court consisting of the learned Chief Justice and another learned Judge quashed the two orders as prayed for by the appellant on the grounds that the orders were passed ex parte, and that section 76 did not authorize, the respondent to close the bus stand.
In the opinion of the Bench, section 76 deals with provision for parking places and halting stations and has no applica tion to a permanent bus stand which is a sort of a radiating centre of all the bus traffic for the town.
It was held therefore that the Regional Transport Authority could not under section 76 fix starting and terminus places for motor buses.
Reference was made, in the course of the arguments, to rule 268, Madras Vehicles Rules, 1940, and the learned Judges observed that though the rule does empower the Transport Authority to fix starting places and termini between which public service vehicles other than motor cars shall be permitted to be used, but that this could be done only if starting places and termini had not already been fixed in accordance with the provisions of any statute.
In the present case as these had already been fixed in accordance with rule 27 D, Motor Vehicles Rules, 1923, the Transport Authority could not fix new starting places and termini under rule 268 of the Rules passed in 1940.
The Bench pointed out that the rule was defective and would lead to an impasse if the starting places and termini already fixed become unsuitable and have to be shifted.
Accordingly they suggested that the rule should be amended and a provision introduced conferring on the appropriate 294 authority the requisite power to alter from time to time the starting places and termini.
See T. E. Ebrahim Saheb vs The Regional Transport Authority Tanjore(1).
It appears that within two months of the decision of the High Court rule 268 was amended by the Government.
Before the decision of the High Court was given the bus stand was shifted to a place belonging to the Municipality in another area.
Rule 268 as it originally stood ran thus: " In the case of public service vehicles (other than motor cabs) if starting places and termini have not been fixed in accordance with the provisions of any statute, the transport authority may, after consultation with such other authority as it may deem desirable, fix starting places and termini between which such vehicles shall be permitted to be used within its jurisdiction.
A list of such places shall be supplied by such authority to every holder of a permit for such vehicles.
When such places have been fixed, every such vehicle shall start only from such places.
" By the amendment the words " if starting places and termini have not been fixed in accordance with the provisions of any statute " were deleted, and the words " and after notice to the parties affected, fix or alter from time to time for good and proper reasons," were added.
As amended, the rule runs thus: " 268.
In the cage of public service vehicles (other than motor cabs) the transport authority may after consultation with such other authority as it may consider desirable, and after notice to the parties affected, fix or alter from time to time for good and proper reasons, the starting places and termini between which such vehicles shall be permitted to be used within its jurisdiction.
A list of such places shall be supplied by such authority to every holder of a permit for such vehicles at the time of grant of or renewal of permits.
(1) A.I.R. 951 Mad. 419.
295 When such places have been fixed every such: vehicle shall start only from such places.
" The respondent then issued a notice to the appellant on October 25, 1950, to show cause why the bus stand should not be shifted, the grounds given being that it was not satisfactorily maintained and was situated in a limited space which was inadequate to accommodate all the buses using the stand and that it did not permit of any improvements being carried out.
The appellant filed a long written statement objecting to the notice and challenging the grounds, whereupon the respondent issued a fresh notice on November 2, 1950, in which the original grounds were dropped and were substituted by the ground "from ' the point of convenience of the travelling public".
After hearing the appellant and the Municipality, the Board passed a resolution on November to, 1950, that for good and proper reasons, namely, the convenience of the travelling public, the Transport Authority had resolved to alter the starting places and termini of all public service vehicles (other than motor cabs) arriving, at and proceeding from Tanjore from the existing bus stand owned by the appellant to the Municipal bus stand in another area of the town.
This order led to another petition being filed in the High Court at Madras, praying for a writ of certiorari under article 226.
The appellant questioned the jurisdiction of the Transport Authority to pass the order in question.
It was contended before the High Court that rule 268 as amended was itself ultra vires, firstly, because it was beyond the rulemaking power conferred by section 68, sub section (r), of the , and secondly because it was repugnant to article 19(1)(g) of the Constitution.
Both these contentions were rejected by the High Court and the petition was dismissed.
The contentions raised before the High Court have been repeated before us.
We are satisfied that there is no good ground for differing from the view taken by the High Court.
The contains 10 Chapters.
Chapter IV of the Act deals with 296 control of transport vehicles.
Section 4 7 (1) lays down that the Regional Transport Authority shall, in deciding whether to grant or refuse a stage carriage permit, have regard to the following matters, namely, (a) the interest of the public generally; (b) to (f). . . . . . . .
Section 48 says that the Regional Transport Authority after consideration of the matters set forth in section 47, may attach to a stage carriage permit any prescribed condition or any one or more of the following conditions.
Various conditions are set out one of which (v) is material for our purposes.
It is to the effect " that within Municipal limits and in such other areas and places as may be prescribed, passengers shall not be taken up or set down at or except at specified points.
" The material portion of section 68 may be set out here: "(1) A Provincial Government may make rules for the purpose of carrying into effect the provisions of this Chapter.
(2) Without prejudice 'to the generality of the foregoing power, rules under this section may be made with respect to all or any of the following matters, namely: (r) prohibiting the picking up or setting down of passengers by stage or contract carriages at specified places or in specified areas or at places other than duly notified stands or halting places. . . ; " It is obvious from a plain reading of sub section (1) that the Government has got full power to make rules for the purpose of carrying into effect the.
provisions contained in Chapter IV relating to the control of transport vehicles and according to subsection (2), without prejudice to this power, the Government has the power to frame rules with respect to matters set out in sub sections (2) (a).
to (2) (za).
It is significant to note that the Act does not follow the ordinary mode of providing at the end of the Act that the Government is empowered to make rules for the 297 purpose of carrying into effect the provisions of the Act but at the end of each of the Chapters, including Chapter IV, the power has been reserved to the Provincial Government to make rules for the purpose of carrying into effect the provisions of the Chapter.
The purpose of Chapter IV is described by the compendious expression "control of transport vehicles" and the Provincial Government is invested with plenary powers to make rules for carrying out that purpose.
Keeping in view the purpose underlying the Chapter we are not prepared to hold that the fixing or alteration of bus stands is foreign to, that purpose.
It was contended that section 68, sub section 2(r), does not confer the power upon the transport authority to direct the fixing or the alteration of a bus stand and that rule 268 of the rules framed under that section was, therefore, ultra vires.
We are not prepared to accede to this contention.
Sub section 2(r) clearly contemplates three definite situations.
It prohibits the picking up or setting down of passengers (i) at specified places (ii) in specified areas, and (iii) at places other than duly notified stands or halting places.
If the power to make rules in regard to these, matters is given to the Government, then it follows that a specified place may be prohibited from being used for picking up or setting down passengers.
This will inevitably result in the closing of that specified place for the purpose of picking up or setting down of passengers.
Similarly a specified area may be excluded for the same purpose.
The expression "duly notified stands" is not defined in the Act, but it is reasonable to presume that a duly notified stand must be one which is notified by the Transport Authority and by none other.
There is no warrant for the presumption that it must be notified by the Municipality. ' Reference was Made to section 270(b), 270(c) 298 270(e), 1, 2 & 3 of the Madras District Municipalities Act (V of 1920), and it was argued that the authority which is clothed with a power to fix a stand is the Municipality.
Section 270(b) empowers the Municipal Council to construct or provide halting places and cart stands, and the latter according to the Explanation appended to the section includes a stand for motor vehicles as well.
Section 270(c) merely says that where a Municipal Council has provided a public landing place, halting place or cartstand, the executive authority may prohibit the use for the same purpose by any person within such distance thereof, as maybe determined by the Municipal Council, of any public place or the sides of any public street.
Section 270(e) lays down that no person can open a new private cart stand or continue to keep open a private stand unless he obtains from the Council a licence to do so.
These provisions do not affect the power of the Transport Authority to regulate traffic control or impose restrictions upon the licence of any such cart stand.
If rule 268 is therefore within the power of the rule making authority, it follows that it cannot be challenged as being void because it is not consistent with some general law.
Reliance was placed on a passage at page 299 of, Craies on Statute Law as laying down that a by law must not be_repugnant to the statute or the general law.
But by laws and rules made under a rule making power conferred by a statute do not stand on the same footing, as such rules are part and parcel of the statute itself.
Section 68, subjection 2(r), involves both s general prohibition.
that the stand will cease to exist as well as a particular prohibition, namely that passengers shall not be picked up or set down at a specified point.
The order passed by the Transport Authority properly construed falls within the ambit of section 68, sub section 2(r).
Rule 268 under which the order impeached was passed is rule framed under the plenary rule making 299 power referred to in section 68, sub section (1).
Sub section (2) (za) says that a rule may be made with respect to any other matter which is to be or may be prescribed.
This shows the existence of residuary power vested in the rule making authority.
It follows therefore that rule 268 is within the scope of the powers conferred under section 68 of the Act.
The next contention was that the order is repugnant to article 19 (1) (g) of the Constitution, according to which all citizens must have the right to practise any profession or to carry on any occupation, trade or business.
It cannot be denied that the appellant has not been prohibited from carrying on the business of running a bus stand.
What has been prohibited is that the bus stand existing on the parti cular site being unsuitable from the point of view of public convenience, it cannot be used for picking up or setting down passengers from that stand for outstations journeys.
But there is certainly no prohibition for the bus stand being used otherwise for carrying passengers from the stand into the town, and vice versa.
The restriction placed upon the use of the bus stand for the purpose of picking up or setting down passengers to outward journeys cannot be con sidered to be an unreasonable restriction.
It may be that the appellant by reason of the shifting of the bus stand has been deprived of the income he used to enjoy when the bus stand was used for outward journeys from Tanjore, but that can be no ground for the contention that there has been an infringement of any fundamental right within the meaning of article 19 (1) (g) of the Constitution.
There is no fundamental right in a citizen to carry on business wherever he chooses and his right must be subject to any reasonable restriction imposed by the executive authority in the interest of public convenience.
The restriction may have the effect of eliminating the use to which the stand has been put hitherto but the restriction cannot be regarded as being unreasonable if the authority imposing such restriction had the power to do so.
Whether the abolition of the stand 39 300 was conducive to public convenience or not is a matter entirely for the transport authority to judge, and it is not open to the court to substitute its own opinion for the opinion of the authority, which is in the beat position, having regard to its knowledge of local conditions to appraise the situation.
It was next contended that rule 268, if it is held to be intra vires, was not complied with as the Transport Authority could pass such an order only after consultation with such other authority as it may deem desirable.
It is admitted that the Transport Authority;consulted the Municipality before passing the order in question.
Rule 268 therefore was fully complied with.
But then it is urged that the Municipality was not the proper authority in the circumstances as it was a partisan to the dispute and had been endeavouring to oust the appellant from the bus stand in order to set up its own bus stand.
The Municipality is a public body interested in public welfare and if it sought the assistance of the Government or the Transport Authority to shift the busstand, it was actuated only by the demands of public interest.
It was possible for the Transport Authority to consult the District Board or the Panchayat as suggested for the appellant, but it was not bound to do so.
We do not think that in consulting the Municipality the Transport Authority acted otherwise than within the scope of its powers.
Further, according to the language employed the consultation is not obligatory but only discretionary.
It was suggested that the act of the Municipality was mala fide and reference was made to paragraphs 18 and 19 of the appellant 's affidavit dated November 20, 1950.
They refer merely to the vagueness of the ground of public convenience and to he amendment of the rule not being bona fide.
There is, however, no material to support this suggestion.
The mere fact that in the first notice certain grounds were mentioned which were not adhered to in the second notice and convenience of the travelling public was alone mentioned as the ground cannot lead to the 301 inference that the order was mala fide.
The rule was amended in pursuance of the suggestion of the High Court in order to overcome the difficulty which arose in the absence of requisite power to alter the busstands.
It is significant that no allegation about mala fides was made before the High Court and the question was never discussed there.
In the petition for special leave to appeal though there is reference to the ground of inconvenience being vague, yet there is no suggestion of mala fides.
The question about mala fides appears to have been raised for the first time in paragraph 4 (f) and (g) of the statement of the case.
We hold that the plea of mala fides has not It was also urged that the resolution is invalid as the District Collector who presided over the meeting of the Transport Authority which passed this resolution had opened the new Municipal bus stand on April I, 1950.
The suggestion is that be did not bring to bear upon the question an impartial and unbiased mind.
The District Collector was not acting in the exercise of judicial or quasi judicial functions so that his action can be subjected to the scrutiny which is permissible in the case of a judicial officer.
He, was acting purely in his executive capacity and his conduct in presiding over the meeting of the Transport Authority in the exercise of his normal functions and also opening the Municipal stand which he was entitled to do as the head of the District, does not affect the validity or fairness of the order complained against.
We do not think there is any merit in this contention.
Accordingly we dismiss the appeal with costs.
Appeal dismissed.

summary:
Rule 268 of the Madras Motor Vehicles Rules, 1940, as it originally stood did not empower the Transport Authority to alter from time to time the starting places and termini for motor vehicles.
The rule was amended in 1950 so as to empower the Transport Authority to do so, and after giving notice to the appellant who was the owner of a bus stand in a municipality, which was being used for several years as the starting place and terminus for motor buses plying to and from the municipality, the Transport Authority passed a resolution changing the starting place and terminus for the convenience of the public.
The appellant applied for a writ of certiorari contending that r. 268 as amended was ultra vires as it went beyond the rule making powers conferred by section 68 (2) (r) of the and was also repugnant to article 19 (1) (g) of the Constitution: Held, (i) that the fixing and alteration of bus stands was not a purpose foreign to the " control of transport vehicles ", the purpose for which rules could be made under section 68 (1), and the power to make rules prohibiting the picking up or setting down of passengers at specified places mentioned in section 68 (2) (r) necessarily included the power to alter the situation of bus stands, and r. 268 as amended did not therefore go beyond section 68 (2) (r) ; (ii) the restriction placed upon the use of the bus stand for the purpose of picking up or getting down passengers to or from outward journeys cannot be considered to be an unreasonable restriction on the right to carry on any profession, trade or business of the appellant, and r. 268 was not in any way repugnant to article 19 (1) (g) of the Constitution.
The expression " duly notified stand " in the Madras means a stand duly notified by the Transport Authority.
There is no warrant for the view that it means a stand 291 notified by the municipality.
The provisions of section 270 (b), (c) and (e) do not affect the power of the Transport Authority to regulate traffic control or impose restrictions upon the licence of cart stands.


judgement:
minal Appeal No. 127 of 1960.
Appeal by special leave from the judgment and order dated August 4, 1958, of the former High Court at Bombay in Criminal Revision Application No. 728 of 1958.
B. P. Maheshwari, for the appellant.
452 Vir Sen Sawhney, R. H. Dhebar and T. M. Sen, for the respondent.
March 17.
The Judgment of the Court was delivered by RAGHUBAR DAYAL, J.
This appeal, by special leave, is directed against the judgment of the Bombay High Court.
The appellant was a ' Third Class Magistrate at Sanand in 1951.
He received Rs. 200 in cash from Amar Singh Madhav Singh as deposit for security to be released on bail.
This amount was not credited in the Criminal Deposit Rojmal and the appellant thereby committed criminal breach of trust with respect to the amount.
The appellant was dismissed from service on April 4, 1953, as a result of a departmental enquiry.
On June 9, 1954, a complaint was filed on behalf of the State against the appellant.
He was convicted of the offence under section 409, Indian Penal Code, by the Trial Magistrate.
The conviction was confirmed by the Extra Additional Sessions Judge, Ahmedabad.
His revision was dismissed by the High Court.
The only point urged in this appeal is that the learned Magistrate should not have taken cognizance of this offence without the previous sanction of the State Government in view of the provisions of section 197, Code of Criminal Procedure.
It is not disputed that a Court could not have taken cognizance of this offence against the appellant if he had been a Magistrate on June 9, 1954.
The appellant was not a Magistrate on June 9, 1954, when the complaint was filed.
The question then is whether the provisions of section 197 of the Code of Criminal Procedure prohibit a Court from taking cognizance of an offence committed by a Magistrate while acting or purporting to act in the discharge of his official duty even when he is no longer a Magistrate on the date the Court takes cognizance.
Sub section (1) of section 197, Code of Criminal Procedure, reads: "(1) When any person who is a Judge within the meaning of section 19 of the Indian Penal Code, or 453 when any Magistrate, or when any public servant who is not removable from his office save by or with the sanction of a State Government or the Central Government, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction (a) in the case of a person employed in connection with the affairs of the Union, of the Central Government; and (b) in the case of a person employed in connection with the affairs of a State, of the State Government.
" There cannot be much scope for the contention that a Court is prohibited from taking cognizance of an offence committed by a Judge while acting or purporting to act in the discharge of his official duty only when that person is a Judge at the time cognizance is taken, as otherwise full effect will not be given to the expression 'any person who is a Judge ', in the subsection.
Similar expression is not used in describing a Magistrate or a public servant.
But it is clear that those two persons should also be 'Magistrate or a public servant ' at the time cognizance is taken of an offence committed by them while acting or purporting to act in the discharge of official duty.
In connection with 'public servant ' the expression who is not removable from his office save by or with the sanction of a State Government or the Central Government indicates that.
It is only when the public servant concerned is in service that the question of his removal from office can arise.
If the public servant has ceased to be a public servant, no such question arises.
Therefore it seems proper to construe the expression 'when any Magistrate ' in the sub section to mean 'when a person who is a Magistrate '.
Even if the expression be not construed in this form, the section says: 'when any Magistrate. is accused of any offence '.
This indicates that it is only when the accusation is against a Magistrate that the Court will not take cognizance of an offence committed by 454 him while acting in the discharge of his official duty, without previous sanction.
If a person is not a Magistrate at the time the accusation is made, the Court can take cognizance without previous sanction.
It has been strenuously urged on behalf of the appellant that the expression 'when any Magistrate is accused of any offence ' refers to the stage when the accusation is first made against the Magistrate, that is to say, when it is alleged for the first time that the Magistrate has committed such an offence.
There seems to be no justification to add the word 'first ' and read this expression as 'when any Magistrate is first accused of any offence '.
The occasion when such an allegation is made for the first time against a Magistrate is not in connection with the Court 's taking cognizance of the offence but will always be either when a complaint is made to a superior officer in the department or to the police.
Both these authorities are free to inquire into the accusation.
It is only when the departmental enquiry or the police investigation leads to the conclusion that the matter is fit for going to Court that a complaint would be made or a police report would be submitted Io the proper Court for taking action against the Magistrate.
It is at this stage that the Magistrate would be accused of the offence for the purposes of the Court and therefore it would be then that the Court will see whether the person proceeded against is a Magistrate or not.
This view finds further support from the language of the clauses (a) and (b).
The previous sanction, according to these clauses, will be of the Central Government if the Magistrate is employed in connection with the affairs of the Un ion and of the State Government if he is employed in connection with the affairs of a State.
If the person is not employed, no sanction is necessary.
Whether the person is so employed or not, is to be seen shortly before the submission of the complaint or police report to the Court.
The sanction can be given by the proper authority on a consideration of the allegations and evidence available to establish them and therefore only after the investigation is complete.
The submission of the 455 complaint or police report is expected to follow the grant of sanction within a reasonable time.
A similar question arose in section A. Venkataraman vs The State (1) in connection with the interpretation of the provisions of section 6 of the Prevention of Corruption Act, 1947 (Act II of 1947).
Sub section (1) of that section reads: "(1) No Court shall take cognizance of an offence punishable under section 161 or section 165 of the Indian Penal Code or under subsection (2) of section 5 of this Act, alleged to have been committed by a public servant except with the previous sanction (a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of the Central Government; (b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of the State Government; (c) in the case of any other person, of the authority competent to remove him from his office." This Court said at p. 1046: "The words in section 6(1) of the Act are clear enough and they must be given effect to.
There is nothing in the words used in section 6(1) to even remotely suggest that previous sanction was necessary before a court could take cognizance of the offences mentioned therein in the case of a person who had ceased to be a public servant at the time the court was asked to take cognizance, although he had been such a person at the time the offence was committed. .
A public servant who has ceased to be a public servant is not a person removable from any office by a competent authority.
" The same can be said with respect to the provisions of section 197 of the Code of Criminal Procedure.
We therefore hold that no previous sanction is necessary for a Court to take cognizance of an offence committed (1) [1958] S.G.R. 1037 456 by a Magistrate while acting or purporting to act in the discharge of his _official duty if he had ceased to be a Magistrate at the time the complaint is made or police report is submitted to the Court, i.e., at the time of the taking of cognizance of the offence committed.
We accordingly dismiss the appeal.
Appeal dismissed.

summary:
The appellant, a Magistrate, was dismissed from service as a result of a departmental enquiry.
On a complaint filed by the State Government he was convicted under section 409 of the Indian Penal Code.
The point urged was that the trial Magistrate should not have taken cognizance of the offence without the previous sanction in view of the provisions of section 197 of the Code of Criminal Procedure.
Held, that no previous sanction was necessary for a Court to take cognizance of an offence committed by a Magistrate while acting or purporting to act in the discharge of his official duty if he had ceased to be a Magistrate at the time the complaint was made or police report was submitted to the Court, i.e., at the time of the taking of cognizance of the offence committed.
section A. Venkataraman vs The State, , applied.


judgement:
32 of 1959.
Petition under article 32 of the Constitution of India for enforcement of Fundamental Rights.
V. A. Seyid Muhamad, for the petitioner.
N. section Bindra, R. H. Dhebar and T. M. Sen, for the respondents.
March 22.
The Judgment of the Court was delivered by section K. DAS, J.
This is a writ petition under article 32 of the Constitution.
The relevant facts lie within a narrow compass, and the short point for decision is whether in the circumstances of this case the petitioner can complain of an infringement of the fundamental rights guaranteed to her under articles 19(1)(f) and 31 of the Constitution.
The relevant facts are these.
The petitioner 's husband Kunhi Moosa Haji, it is alleged, carried on a hotel business in Karachi which is now in Pakistan.
The petitioner stated that her husband had been carrying on the said business since 1936.
It is not in dispute, however, that in the relevant year, that is, 1947, when the separate dominion of Pakistan was set up, the petitioner 's husband was in Karachi.
The petitioner stated that at the end of August, 1949, her husband returned to Malabar, in India.
On behalf of ' respondent No. 1, the Ministry of Rehabilitation, Government of India, it is averred that the petitioner 's 507 husband surreptitiously returned to India without a valid passport in 1953 and was arrested for an alleged infringement of the provisions of the Foreigners Act.
On December 7, 1953, Kunhi Moosa Haji transferred in favour of his wife his right., title and interest in seven plots of land, details whereof are not necessary for our purpose.
On December 8, 1954, about a year after the transfer, a notice was issued to both the petitioner and her husband to show cause why Kunhi Moosa Haji should not be declared an evacuee and his property as evacuee property under the provisions of the , (hereinafter called the Act).
The petitioner 's husband did not appear to contest the notice, but the petitioner entered appearance through her advocate.
By an order dated January 29, 1955, the Assistant Custodian of Evacuee Property, Tellicherry, declared that Kunhi Moosa Haji was an evacuee under the provisions of section 2(d)(1) of the Act and the plots in question were evacuee property within the meaning of section 2(f) of the Act.
From this decision the petitioner unsuccessfully carried an appeal to the Deputy Custodian of Evacuee Property, Malabar, who affirmed the decision of the Assistant Custodian, Tellicherry, by his order dated July 11, 1955.
The petitioner then moved the Deputy Custodian of Evacuee Property, Malabar, for a review of his order under section 26(2) of the Act.
This petition also failed.
Then the petitioner moved the Custodian General of Evacuee Property, New Delhi, in revision against the order of the Deputy Custodian.
This revision petition was dismissed by the Custodian General by his order dated April 9, 1956.
The petitioner then made an application to the Ministry of Rehabilitation for an order of restoration of the property in her favour under the provisions of section 16(1) of the Act.
This application was also rejected.
The petitioner then moved the High Court of Kerala by means of a writ petition under article 226 of the Constitution.
This petition was, however, withdrawn by the petitioner on the ground that the Kerala High Court had held in an earlier decision reported in 508 Arthur Import & Export Company, Bombay vs Colletor of Customs, Cochin (1) that when an order of an inferior tribunal is carried up in appeal or revision to a superior tribunal outside the court 's jurisdiction and the superior tribunal passes an order confirming, modifying or reversing the order, the High Court cannot issue a writ to an authority outside its territorial jurisdiction.
Then, on March 5, 1959, the petitioner filed the present writ petition and the basis of her contentions is that the fundamental rights guaranteed to her under articles 19(1)(f) and 31 of the Constitution have been infringed and she is entitled to an appropriate writ or order from this Court for the restoration of the property transferred to her by her husband.
In her petition, the petitioner has contested the validity of the notice issued on December 8, 1954, on the ground of noncompliance with certain rules.
She has also contested on merits the correctness of the findings arrived at by the relevant authorities that Kunhi Moosa Haji was an evacuee and the property in question was evacuee property.
Learned Counsel for the petitioner tried to argue that the invalidity of the notice issued under section 7 of the Act went to the root of jurisdiction of the subsequent orders.
We do not, however, think that any question of lack of jurisdic tion is involved in this case.
The petitioner appeared in response to the notice and raised no point of jurisdiction.
In subsequent proceedings before the Deputy Custodian and the Custodian General she contested the correctness of the orders passed on merits: no question of jurisdiction was canvassed at any stage and we do not think that the notice suffered from any such defect as would attract the question of jurisdiction.
We need only add that no question of the constitutionality of any law is raised by the, petitioner.
In the view which we have taken, this petition is concluded by the decision of this Court in Sahibzada Saiye d Muhammed Amirabbas Abbasi vs The State of Madhya Bharat (2) and it is not necessary to consider on merits the contentions urged on behalf of the petitioner.
The position as we see it is this.
This Court (1) (1958) 18 k.
L.J. 198.
(2) ; 509 can exercise jurisdiction under article 32 of the Constitution only in enforcement of the fundamental rights guaranteed by Part III of the Constitution.
In the present,case, the appropriate authorities of competent jurisdiction under the Act have determined the two questions which fell for their decision, namely, (1) that Kunhi Moosa Haji was an evacuee within the meaning of section 2(d) of the Act and (2) that his property was evacuee property.
It was open to the petitioner to challenge the decision of the Custodian General, New Delhi, by moving the appropriate High Court in respect thereof; it was also open to the petitioner to move this Court by way of special leave against the decision of the Custodian General or of the other appropriate authorities under the Act.
The petitioner did not, however ', choose to do so.
The result, therefore, is that the order of the custodian General has become final.
Under section 28 of the Act the order cannot be called in question in any court by way of an appeal or revision or in any original suit, application or execution proceeding.
It is, indeed, true that section 28 of the Act cannot affect the power of the High Court under articles 226 and 227 of the Constitution or of this Court under articles 136 and 32 of the Constitution.
Where, however, on account of the decision of an authority of competent jurisdiction the right alleged by the peti tioner has been found not to exist, it is difficult to see bow any question of the infringement of that right can arise as a ground for a petition under article 32 of the Constitution, unless the decision of the authority of competent jurisdiction on the right alleged by the petitioner is held to be a nullity or can be otherwise got rid of As long as that decision stands, the petitioner cannot complain of any infringement of a fundamental right.
The alleged fundamental right of the petitioner is really dependent on whether Kunhi Moosa Haji was an evacuee and whether his property is evacuee property.
If the decision of the appropriate authorities of competent jurisdiction on these questions has become final and cannot be treated as a nullity or cannot be otherwise got rid of, the petitioner cannot complain of any infringement of her 510 fundamental right under articles 19(1)(f) and 31 of the It is worthy of note that the relevant provisions of the Act have not been challenged before us as unconstitutional, nor can it be seriously contended before us that the orders of the appropriate authorities under the Act can be treated as null and void for want of jurisdiction.
What is contended before us is that the orders were incorrect on merits.
That is a point which the petitioner should have agitated in an appropriate proceeding either by way of an appeal from the order of the Custodian General with special leave of this Court or by an appropriate proceeding in the High Court having jurisdiction over the Custodian General.
The petitioner did not take either of these steps, and we do not think that she can be permitted now to challenge the correctness on merits of the orders of the appropriate authorities under the Act on a writ petition under article 32 of the Constitution on the basis that her fundamental right has been infringed.
In Sahibzada Saiyed Muhammed vs The State of Madhya Bharat (1) the facts were these.
The petitioner who had migrated to West Pakistan applied to the High Court of Madhya Bharat for a writ of habeas corpus for directions to produce petitioners 2 and 3, his minor children, before the court on the allegation that they were wrongfully confined and, upon the dismissal of the said application, be applied to the District Judge of Ratlam under the Guardian and Wards Act for his appointment as guardian of the person and property of the said minors; the District Judge rejected the application and appointed another person as guardian; the petitioner then appealed to the High Court against the order of the District Judge and that appeal was dismissed.
He applied for special leave to appeal to this Court and that application was also rejected.
Thereafter be moved an application under article 32 of the Constitution and it wag held that where on account of the decision of a court of competent jurisdiction, the right alleged by the petitioner does not exist and, therefore, its infringement cannot arise, (1) ; 511 this Court cannot entertain a petition under article 32 for protection of the alleged right.
We are of the opinion that the principle of this decision also applies to the present case.
The circumstance that in Sahibzada Saiyed Muhammed vs the State of Madhya Bharat (1) an application for special leave was made and rejected makes no difference to the application of the principle.
So far as the principle is concerned, the position is the same when an application is made and rejected and when no application is made.
The re sult in both cases is that the decision becomes final and binding on the parties thereto.
We must make it clear that we are not basing our decision on the circumstance that the High Court of Kerala rejected the application of the petitioner on the ground that it had no territorial jurisdiction.
We are basing our decision on the ground that the competent authorities under the Act had come to a certain decision, which decision has now become final the petitioner not having moved against that decision in an appropriate court by an appropriate proceeding.
As long as that decision stands, the petitioner cannot complain of the infringement of a fundamental right, for she has no ,such right.
We would, accordingly, dismiss the petition with costs.
Petition dismissed.

summary:
The petitioner 's husband transferred certain property to the petitioner.
A notice under section 7, , was issued to the petitioner and to her husband and the husband was declared an evacuee and the property was declared as evacuee property by the Assistant Custodian.
An appeal to the Deputy Custodian and thereafter a revision petition to the Custodian General by the petitioner were dismissed.
The petitioner applied to the Supreme Court under article 32 of the Constitution contending that her fundamental rights under 64 506 articles 19(1)(f) and 31 were infringed by the order of the Assistant Custodian and prayed for the restoration of the property.
Held, that the petition under article 32 was incompetent as no question of violation of any fundamental right arose in the case.
The decision of an authority of competent jurisdiction had negatived the existence of the right alleged by the petitioner and unless that decision was held to be a nullity or could be otherwise got rid of, the petitioner could not complain of any infringement of a fundamental right.
The alleged fundamental right of the petitioner was dependent on whether her husband was an evacuee and whether his property was evacuee property.
The decision on that question had become final and no question of lack of jurisdiction was involved.
Sahibzada Saiyed Muhammed Amirabbas Abbasi vs The State of Madhya Bharat, ; , applied.