judgement:
N: Criminal Appeal No. 183 of 1984.
Appeal by Special leave from the Judgment and order dated the 26th August, 1983 of the Punjab and Haryana High Court in Cr.
Writ Petition No. 392 of 1983.
C.M. Nayar and Vijay Jhani for the Appellant.
Puran Chand, Mrs. Naresh Bakshi and Miss Kailash Mehta for the Respondents The Judgment of the Court was delivered by CHANDRACHUD C. J.
,: The appellant, Surinder kaur Sandhu, is the wife of respondent 1, Harbax Singh Sandhu.
Respondent 2 is the father of respondent 1 Appellant and respondent 1 were married in 1975 at Bodni Kalan, District Faridkot, Punjab, according to Sikh rites.
Soon after the marriage they left for England, where a boy named Pritpal Singh was born to them on October 24, 1976.
Within a short period after the birth of the boy, the relationship between the spouses came under a strain resulting in a serious episode.
The husband was trapped by the Berkshire Police who got the scent that he was negotiating with a hitman to have the wife run over by a car.
The husband was convicted and sentenced 425 to a term of three years for that offence.
Ironically, it was the wife who intervened and succeeded in obtaining a probation order for the man who had attempted to procure her murder.
The husband was released on probation on February 4, 1982.
The period of probation expired on December 24, 1982.
On January 31, 1983, while the wife was away at work, the husband removed the boy from England and brought him to India.
On the same date, the wife obtained an order under section 41 of the Supreme Court Act, 1981 under which the boy became the Ward of the Court with effect from that date.
That order was confirmed on July 22, 1983 by Mrs. Justice Booth of the High Court of Justice (Family Division).
By the said order, the husband was directed to hand over the custody of the minor boy to the wife or her agent forthwith.
The wife came to India in April 1983.
On May 5, 1983 she filed a petition under section 97 of the Code of Criminal Procedure in the Court of the learned Judicial Magistrate, First Class, Jagraon.
She asked for the custody of her son, contending that he was in the illegal custody of the respondents.
Section 97 authorises the Magistrate to direct a search to be made for persons wrongfully confined and, on their being found, to be produced in the Court in order to facilitate the passing of such order as the circumstances of the case may require.
The respondents relied upon section 6 of the Hindu Minority and Guardianship Act, 1956, and opposed the petition on the ground that Respondent 1 was the natural guardian of the minor boy.
Accepting that contention, the learned Magistrate dismissed the petition, leaving the question of the custody of the child to be decided in an appropriate proceeding.
The wife then went back to England to resume her work and obtained the order dated July 22, 1983 to which we have already referred.
She came back to India once again, this time armed with the aforesaid order of the English High Court.
She then filed the present writ petition in the High Court of Punjab and Haryana, asking for the production and custody of her minor son.
The learned single Judge of the High Court who dealt with the petition made an excellent effort to bring about rapprochement between the spouses but, he did not succeed.
He questioned the boy more than once and he even presided the spouses to live together for a couple of days in the house of the Inspector General of Prisons, Haryana.
The spouses reported back to him that they 426 were unable to resolve their differences.
The learned Judge dismissed the wife 's petition on the grounds, inter alia, that her status in England is that of a foreigner, a factory worker and a wife living separately from the husband that she had no relatives in England; and that, the child would have to live in lonely and dismal surroundings in England.
On the other hand, according to the learned Judge, the father had gone through a traumatic experience of a conviction on a criminal charge; that he was back home in an atmosphere which welcomed him; that his parents were in affluent circumstances; and that, the child would grow in an atmosphere of self confidence and self respect if he was permitted to live with them.
Some of these circumstances mentioned by the learned Judge are not beside the point but, their comparative assessment is difficult to accept as made.
For example, the `traumatic experience of a conviction on a criminal charge ' is not a factor in favour of the father, especially when his conduct following immediately upon his release on probation shows that the experience has not chastened him.
On the whole, we are unable to agree that the welfare of the boy requires that he should live with his father or with the grand parents.
The father is a man without a character who offered solicitation to the commission of his wife 's murder.
The wife obtained an order of probation for him but, he abused her magnanimity by running away with the boy soon after the probationary period was over.
Even in that act, he displayed a singular lack of respect for law by obtaining a duplicate passport for the boy on an untrue representation that the original passport was lost.
The original passport was, to his knowledge, in the keeping, of his wife.
In this background, we do not regard the affluence of the husband 's parents to be a circumstance of such overwhelming importance as to tilt the balance in favour of the father on the question of what is truly for the welfare of the minor At any rate, we are unable to agree that it will be less for the welfare of the minor if he lived with his mother.
He was whisked away from her and the question is whether, there are any circumstances to support the view that the new environment in which he is wrongfully brought is more conducive to his welfare.
He is about 8 years of age and the loving care of the mother ought not to be denied to him.
The father is made of coarse stuff.
The mother earns an income of $100 a week, which is certainly not large by English standards, but is not so low as not to enable her 427 to take reasonable care of the boy.
Section 6 of the Hindu Minority and Guardianship Act, 1956 constitutes the father as the natural guardian of a minor son.
But that provision cannot supersede the paramount consideration as to what is conducive to the welfare of the minor.
As the matters are presented to us to day, the boy, from his own point of view, ought to be in the custody of the mother.
We may add that the spouses had set up their matrimonial home in England where the wife was working as a clerk and the husband as a bus driver.
The boy is a British citizen, having been born in England, and he holds a British passport.
It cannot be controverted that, in these circumstances, the English Court had jurisdiction to decide the question of his custody.
The modern theory of Conflict of Laws recognises and, in any event, prefers the jurisdiction of the State which has the most intimate contact with the issues arising in the case.
Jurisdiction is not attracted by the operation or creation of fortuitous circumstances such as the circumstance as to where the child, whose custody is in issue, is brought or for the time being lodged.
To allow the assumption of jurisdiction by another State in such circumstances will only result in encouraging forum shopping Ordinarily, jurisdiction must follow upon functional lines.
That is to say, for example, that in matters relating to matrimony and custody, the law of that place must govern which has the closest concern with the well being of the spouses and the welfare of the offsprings of marriage.
The spouses in this case had made England their home where this boy was born to them.
The father cannot deprive the English Court of its jurisdiction to decide upon his custody by removing him to India, not in the normal movement of the matrimonial home but, by an act which was gravely detrimental to the peace of that home.
The fact that the matrimonial home of the spouses was in England, establishes sufficient contacts or ties with that State in order to make it reasonable and just for the Courts of that state to assume jurisdiction to enforce obligations which were incurred therein by the spouses.
(See International Shoe Company vs State of Washington (1) which was not a matrimonial case but which is regarded as the fountainhead of the subsequent developments of jurisdictional issues like the one involved in the instant case) It is our duty and function to protect the wife against the burden of litigating in an inconvenient forum which she and her husband had left voluntarily in order to make their living in England, where they gave birth to this unfortunate boy.
428 For these reasons, we set aside the judgment of the High Court and direct that the custody of the child shall be handed over to the appellant mother.
that shall be done during the course of this day.
The High Court has referred to the evidence showing that the annual income of the father 's family is in the range of Rs. 90,000.
That would justify an order directing the respondents to pay a sum of Rs. 3,000 (three thousand) to the appellant for her costs of this appeal.
order accordingly, S.R. Appeal allowed.

summary:
Appellant and Respondent No.1 were married in 1975 at Bodni Kalan District Faridkot, Punjab according to Sikh rites.
Soon after the marriage, they left for England, where a boy named Pritpal Singh was born to them on October 24, 1976.
Soon thereafter, their relationship came under a strain with the result Respondent 1 was trying to negotiate with a hitman to have the appellant run over by a car.
The Berkshire Police got scent of it resulting in the Respondent 's conviction and sentence for a period of three years.
Ironically the appellant wife intervened and succeeded in obtaining a probation order for the man who had attempted to procure her murder.
The husband was released on probation on February 4, 1982.
The period of probation expired on December 24, 1982.
On January 31, 1983, while the wife was away at work, Respondent No. 1 removed the boy from England and brought him to India.
On the same date, the appellant wife obtained an order under section 41 of the Supreme Court Act, 1981 under which the boy became the ward of the Court with effect from that date.
This order was confirmed on July 22, 1983.
In the meantime the appellant came to India in April, 1983 and on 5.5.1983 filed a petition under section 97 of the Code of Criminal Procedure in the Court of the learned Judicial Magistrate first class Jagraon praying for the custody of the child.
The Respondent No. 1 contested and took an objection that under section 6 of the Hindu Minority and Guardianship Act, 1956 he was the natural guardian of the minor boy.
The contention was accepted and the petition was dismissed.
The appellant went back to England to resume her work and obtained the confirmation order dated 22.7.1983 referred to above.
Armed with the said order she returned to India and filed a writ Petition in the High Court of Punjab and Haryana.
The Writ Petition was dismissed on the grounds inter alia that her status in England is that of a foreigner, factory worker and a wife living separately from the husband and having no relatives and as such the child would have to live in lonely and dismal surroundings in England, while it would grow in an atmosphere of self confidence and self respect, if it was permitted to live with its father and grand parents: 423 Hence the appeal after obtaining special leave of the Court.
Allowing the appeal, the Court, ^ HELD: 1.
Section 6 of the Hindu Minority and Guardianship Act, 1956 constitutes the father as the natural guardian of a minor son.
But that provision cannot supersede the paramount consideration as to what is conducive to the welfare of the minor.
As the matters are presented to the Court the boy, from his own point of view, ought to be in the custody of the mother.
[427A B] 2:1 The modern theory of conflict of laws recognises and, in any event, prefers the jurisdiction of the State which has the most intimate contact with the issues arising in the case.
Jurisdiction is not attracted by the operation or creation of fortuitous circumstances such as the circumstance as to where the child, whose custody is in issue, is brought or for the time being lodged.
To allow the assumption of jurisdiction by another State in such circumstances will only result in encouraging forum shopping.
Ordinarily, jurisdiction must follow upon functional lines.
That is to say, for example, that in matters relating to matrimony and custody, the law of that place must govern which has the closest concern with the well being of the spouses and the welfare of the offsprings of marriage The spouses in this case.
had made England their home where this boy was born to them.
The father cannot deprive the English Court of its jurisdiction to decide upon his custody by removing him to India, not in the normal movement of the matrimonial home but, by an act which was gravely detrimental to the place of that home.
The fact that the matrimonial home of the spouses was in England, establishes sufficient contacts or ties with that State in order to make it reasonable and just for the Courts of that State to assume jurisdiction to enforce obligations which were incurred therein by the spouses.
[427 CG] 2:2 The spouses had set up their matrimonial home in England where the wife was working as a clerk and the husband as a bus driver.
The boy is a British citizen, having been born in England, and he holds a British passport.
It cannot be controverted that, in these circumstances the England Court had jurisdiction to decide the question of his custody.[427B C] International Shoe Company vs State of Washington, ; [1945] quoted with approval.
3:1 In the instance case; (i) The welfare of the boy does not require that he should live with his father or with the grand parents; (ii) the "traumatic experience of a conviction on a criminal charge" is not a factor in favour of the father especially when his conduct following immediately upon his release on probation shows that the experience has not chastened him, and (iii) The father is a man without a character who offered solicitation to the commission of his wife 's murder.
The wife obtained an order of probation for him but, he abused her magnanimity by running away with the boy soon after the probationary period was over.
Even in that act, he displayed a singular lack of respect for law by obtaining a duplicate passport for the boy on an untrue representation that the original passport was lost.
The original passport was, to his knowledge, in the Keeping of his wife.
In this background, the 424 affluence of the husband 's parents cannot be regarded as a circumstance of such overwhelming importance as to tilt the balance in favour of the father on the question of what is truly for the welfare of the minor.
At any rate it will not be less for the welfare of the minor if the lived with his mother.
He was whisked away from her and it cannot be said that there are any circumstance to support the view that the new environment in which he is wrongfully brought is more conducive to his welfare.
He is about 8 years of age and the loving care of the mother ought not to be denied to him.
The father is made of coarse stuff.
The mother earns an income of $100 a week, which is certainly not large by English standards, but is not so low as not to enable her to take reasonable care of the boy.
[426E H] 3:2 It is the duty and function of the court to protect the wife.
against the burden of litigating in an inconvenient forum which she and her husband had left voluntarily in order to make their living in England, where they gave birth to this unfortunate boy.
[427H] (The court directed the custody of the child to the mother forthwith and awarded cost of Rs. 3000) [428B]


judgement:
Civil Appeal No. 2691 of 1982.
From the Judgment and Order dated the 4th day of June, 1982 of the Punjab and Haryana High Court in Election Petition No.2 of 1980.
Appellant in Person O.P. Sharma, K.R. Gupta, R.C. Gubrele, and R.C. Bhatia, for the Respondents.
385 The Judgment of the Court was delivered by FAZAL ALI, J.
This election appeal is directed against a judgment dated June 4, 1982 of the Punjab & Haryana High Court dismissing the election petition filed by the appellant against the respondent.
The present appeal arises out of an election to the Assembly constituency No. 3 Jullundur Cantt.
, which was held on 31.5.1980 and the result of which was declared on 3.6.1980.
Both the appellant and respondent No. 1 were the main rival candidates.
The total votes polled from the constituency were 47650, out of which the appellant polled 19710 whereas respondent No. 1 secured 20128 votes, the margin being rather small, viz., 418.
The appellant sought to challenge the election of respondent No. 1 on various grounds consisting of corrupt practices committed by him (respondent No.1) which, according to the appellant, materially affected the result of the election.
The appellant, who is an Advocate, argued his case with brevity and ingenuity and fairly conceded that he was not going to press all the allegations made in the petition but would confine his arguments only to the allegations pertaining to section 123(4) of the Representation of the People Act, 1951 (for short, to be referred to as the 'Act ').
In order to understand the ambit and scope within the confines of which the appellant has argued his case it may be necessary to extract sub section (4) "The publication by a candidate or his agent or by any other person, with the consent of a candidate or his election agent, of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate or in relation to the candidature, or with drawl, of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate 's election.
" In view of the concessions made by the appellant, the case lies within a very narrow compass.
The allegations made by the appellant against the respondent consist of two categories (1) speeches having been made by the respondent or his friends near about the time of the election and after the respondent was nominated as a candidate, which amounted 386 to serious character assassination of the appellant by projecting him as a murderer of one Asa Ram, who died as far back as 1978.
According to the appellant, the respondent No. 1 carried out a vilifying compaign to show that he (appellant) was directly connected with the aforesaid murder so as to wean away the votes of the harijans of the locality and members of the Congress (l) party because Asa Ram was harijan and one of the supporters of Congress (I) party.
In this connection, the allegations made may be classed under two separate categories: (a) Utterances, speeches, news items and articles regarding the allegation that the appellant was directly connected with the murder of Asa Ram in 1978, and (b) speeches and news items made and issued by respondent No. 1 on various occasions proximate to the date of the election.
(2) Similar acts committed by respondent No. 1 in close proximity to the election, i.e., sometime in May 1980.
After having gone through the evidence statement of witnesses and he documents placed before us, we are unable to find any close connection or direct link between the imputations made against the appellant in 1978 and those made in 1980.
In none of the documents produced by the appellant, which refer to the activities of the first respondent, there is the slightest possible hint that the appellant had anything to do with the murder of Asa Ram.
Realising this difficulty the appellant sought the application of the doctrine of inuendo.
It is well settled that where this doctrine is applied it must be clearly proved that the defamatory allegation was made in respect of a person though not named yet so fully described that the allegation would refer to that person and that person alone.
Inuendo cannot be proved merely by inferential evidence which may be capable of two possibilities.
Furthermore, the allegations made in 1978 being far too remote and there being no continuous link between those allegations and the allegations made in 1980, the first category of the charge against the respondent cannot be sustained, more particularly because in 1978 a fresh election was not in the offing because the Janata Government came into power in 1977 and in normal course would have completed its full term in 1982.
Thus, at that time nobody could have predicted that the elections would be held only two years later which happened by a sudden spurt of events.
387 In these circumstances, we would place no reliance at all so far as the first category of the allegations against the respondent is concerned.
In N. Vimala Devi vs K. Madhusudhana Reddy( ') this Court completely ruled out documents containing instances of corrupt practice which had nothing to do with the 1972 election with which their Lordships were concerned in that case and in this connection while overruling an important document they observed thus: "We are not impressed by the argument on behalf of the respondent that exhibit A 57, which shows that even in 1970 a representation of a similar kind was made, shows that there were many others out to besmirch the name of the appellant.
Ex A 57 contains many instances which have nothing to do with the election in 1972 or the setting up of a Congress candidate in that election.
That is the affinity between exhibit A 48 and Ex A1.
" On a parity of reasoning, therefore, we cannot call into aid the allegations made as far back as 1978.
It is, therefore, not necessary for us to consider or to go into the evidence offered by the appellant as far as the 1978 incident it concerned.
Coming now to the second category of allegations, as the appellant has confined his arguments only to the averments made regarding the application of section 123 (4) of the Act, the ambit of the case is greatly reduced .
Before examining the allegations, we might mention that the learned election Judge of the High Court had dealt with all the allegations, and has given convincing and cogent reasons for holding that they had not been proved either by oral or documentary evidence.
It is now well settled by several authorities of this Court that an allegation of corrupt practice must be proved as strictly as a criminal charge and the principle of preponderance of probabilities would not apply to corrupt practice envisaged by the Act because if this test is not applied a very serious prejudice would be caused to the elected candidate who may be disqualified for a period of six years from fighting any election, which will adversely affect the electoral process.
Keeping in view, therefore, the strict standard of proof required in such cases , we proceed to consider the evidence on which the appellant has relied in order to determine whether or not the corrupt practice alleged has been proved.
In this connection, the first circumstance stressed before us was that a meeting 388 was convened in Gopal Nagar, Ward No. 22, on May 18, 1980 where respondent No. 1 and, with his consent , his friend Sansar Chand, delivered fiery speeches connecting the appellant with the murder of Asa Ram, which was deposed to by PWs 8 and 13.
PW 8 has stated that he attended a meeting on 18. 5.80 at Basti Guzan.
The learned Judge disbelieved his evidence as being wholly improbable.
Moreover, there is a contradiction in his evidence because at one place he says that Yash (respondent No. 1) spoke first and was followed by Sansar Chand and yet at another place he says that Sansar Chand spoke first and was followed by Yash.
It is impossible to conceive of such a contradiction if the witness apart from being interested and partisan had been present in the meeting throughout, he would not forget the sequence of such an important matter.
Another witness relied upon by the appellant was PW 13 who has also been disbelieved by the learned Judge, and he had admitted in his cross examination that he did not make a note of what Yash had spoken and yet he was able to give full and grotesque details of the speech when he was examined in the court, after more than a year and a half.
Furthermore, he states that when he talked to the appellant he was told that the respondent already knew about the meeting.
This shows that the appellant himself did not take this witness very seriously.
We, therefore , entirely agree with the appreciation of the evidence of these two witnesses made by the learned High Court Judge.
The evidence of PWs 8 and 13 however, is alleged to have been corroborated by a news item published in an Urdu daily 'Milap ' whose Chief Sub Editor (PW 5) was examined by the appellant.
But the witness far from supporting his case has deposed that he had absolutely no personal knowledge of the Report made by Prashar which was published on 24.5.80.
Moreover, it is very difficult for a court to rely on news items published on the information given by correspondents because that may not represent the true state of affairs.
In Samant N. Balakrishna etc.
vs George Fernandez & Ors. etc.
(1) while dwelling on the relevance and credibility of such type of news items this Court made the following observations: "The best proof would have been his own speech or some propaganda material such as leaflets or pamphlets etc., but none was produced.
A news item without any further proof of what had actually happened through witnesses is of no value.
It is at best a secondhand secondary evi 389 dence.
It is well known that reporters collect information and pass it on to the editor who edits the news item and then publishes it.
In this process the truth might get perverted or garbled.
Such news items cannot be said to prove themselves although they may be taken into account with other evidence if the other evidence is forcible." In the instant case, there is no evidence to show the actual record of the speech made by respondent No I or Sansar Chand and , therefore, the said news item does not advance the case of the appellant any further, particularly when it has been stoutly denied by respondent No. 1 and PW 5.
Reliance was also placed on another news item (exhibit PW 25/4) appearing on 20. 5.80 which also has to be rejected on the same ground as the first item.
The learned Judge has rightly pointed out in his judgment that PW 25, after he was shown the newspaper dated 12.5.80 (Ex.PW 25/3), has said that he did not know anything else, that is to say, neither the correspondent revealed the source from which he got the information nor does he say that he was actually present when the speeches were delivered.
On the other hand, RW 3, Dev Raj Puri, had clearly stated that certain changes were made in the items which he had filed and this statement of RW 3 was not challenged.
Thus the evidence furnished by the aforesaid items is also of little value to the appellant.
On the same principles of reasoning the reports of the meetings published in 'Milap ' regarding the speeches delivered on 17th and 28th May 1980 also suffer from the same infirmity.
Strong reliance was placed on the document, exhibit RW 24, which had been admitted by the first respondent.
We have gone through the entire speech published in the daily 'Milap ' on 18.5.80 and we do not find even a single word to connect the appellant with the murder of Asa Ram.
In fact, the entire speech reproduced in the said Paper does not at all show that the speaker viz. the first respondent, made any reference to the appellant at all.
In these circumstances, therefore, even the appellant himself had to admit before us that as the text of the speech has been reproduced, no allegation has been made against him.
The appellant however, tried in vain to argue that the afore 390 said speech would amount to inuendo because it has expressly referred to the circumstances under which Asa Ram was murdered.
By no stretch of imagination can the doctrine of inuendo be invoked to the aforesaid speech.
We therefore, reject this contention also.
After a careful consideration of the documents, the circumstances of the case and the oral evidence of the witnesses placed before us.
We find ourselves in agreement with the judgment of the High Court.
Indeed, it is very difficult to prove a charge of corrupt practice merely on the basis of oral evidence because in election cases, it is very easy to get the help of interested witnesses but very difficult to prove charges of corrupt practice.
In the instant case, the evidence both oral and documentary led by the appellant falls short of the standard of proof required to bring his case within the four corners of section 123 (4) of the Act.
We must, however, record our appreciation of the crisp and candid manner in which this case has been presented before us by the appellant.
For the reasons given above, the judgment of the High Court is affirmed and the appeal is dismissed but in the circumstances without any order as to costs.
S.R. Appeal dismissed.

dataset_name: IN-Abs

summary:
In the election to the Assembly constituency No 31 Jullundur Cantt., which was held on 31.5.1980, the total votes polled from the constituency were 47650, out of Which the appellant polled 19710, whereas the respondent Yash secured 418 votes more i.e. 20128 votes; Therefore, the appellant sought to challenge the election of Respondent No. 1 on various grounds consisting of corrupt practises committed by respondent No. 1 which materially affected the result of the election.
According to the appellant, Respondent No. 1 through speeches either made by him or his friend carried out a vilifying campaign to show that the appellant was directly connected with the murder of one Asa Ram a harijan and one of Supporters of Congress (l) party, so as to wean away the votes of the harijans of the locality and members of the Congress (l) party.
The Punjab and Haryana High Court disbelieved the oral evidence and found no nexus with the news items etc.
and dismissed the election petition.
Hence the appeal by special leave.
^ HELD 1.1 It is well settled that where the doctrine of inuendo is applied, it must be clearly proved that the defamatory allegation was made in respect of a person though not named yet so fully described that the allegation would refer to that person and that person alone.
Inuendo cannot be proved merely by inferential evidence which may be capable of two possibilities.[386F G] 1.2 In the instant case, the evidence statement of witnesses and the documents produced, do not call for any inference of any close connection or direct link between the imputations made against the appellant in 1978 and those made in 1980.
In none of the documents produced by the appellant which refer to the activities of the first respondent, there is the slightest possible hint that the appellant had anything to do with the murder of Asa Ram.
Further more, the allegations made in 1978 being far too remote and there being no continuous link between those allegations and the allegations made in 1980, the first category of the charge against the respondent cannot be sustained, more particularly because in 384 1978 a fresh election was not in the offing because the Janata Government came into power in 1977 and in normal course would have completed its full term in 1982.
Thus, at that time no body could have predicted that the election would be held only two years later which happened by a sudden spurt of events.
[386E F; G H] N. Vimala Devi vs K. Madhusudhana Reddy [1975] 3.
S.C.R. 128 followed.
2.1 It is now well settled by several authorities of the Supreme Court that an allegation of corrupt practice must be proved as a strictly as a criminal charge and the principle of preponderance of probabilities would not apply to corrupt practices envisaged by the Act because if this test is not applied a very serious prejudice would be caused to the elected candidate who may be disqualified for a period of six years from fighting any election, which will adversely affect the electoral process.[387F G] 2.2 In the instant case, the evidence both oral and documentary led by the appellant falls short of the standard of proof required to bring his case within the four corners of section 123(4) of the Representation of the People Act 1951(1).
About the speech made on May 18, 1980, the deposition of PW8 cannot be relied on inasmuch as it is impossible to conceive of contradictions made by him.
If the witness apart from being interested and partisan, had been present in the meeting throughout, he would not forget who spoke first.
Even P.W 13 cannot be believed since, while admitting in his cross examination that he did not make a noted of what Yash had spoken, yet he was able to give full and grotesque details of the speech, that too, when he was examined in the court after more than a year and half.
[390C D, 388B D] 3.
It is very difficult for a Court to rely on news items published in any newspaper on the basis of information gives by correspondents because that may not represent the true state of affairs.
It is at best a second hand secondary evidence.
[388F G] Samant N. Balakrishna vs George Fernandez & Ors. ; , reiterated.


judgement:
Civil Appeal No. 497 of 1971.
Appeal by certificate from the Judgment and Decree dated 2.5.1969 of the High Court of Madhya Pradesh, (Indore Bench) in Civil First Appeal No. 91 of 1962.
V.A. Bobde, S.D. Mudaliar and A.G. Ratnaparkhi for the appellants.
G.L. Sanghi, D.N. Misra and section Sukumaran for the respondents.
The Judgment of the Court was delivered by SEN, J.
This appeal on certificate is directed against a judgment and decree of the Madhya Pradesh High Court dated May 2, 1969 substantially reversing the judgment and decree passed by the third Additional District Judge, Indore dated June 18/19,1962 487 and dismissing the plaintiffs ' suit for partition and separate possession of their half share of the suit properties detailed in Schedule 'A ' appended to the plaint except with respect to a house and the agricultural lands at Ujjain.
During the course of the hearing the parties have come to a settlement and the terms of the compromise have been recorded.
Nevertheless, the correctness of the judgment delivered by the High Court is open to serious doubt and as it involves a question of general importance, we proceed to record our views.
The facts giving rise to the appeal are as follows.
The report of the Inam Commissioner discloses that in 1837 the late Maharaja Harihar Rao Holkar made a grant of an inam of a garden known as Rambag in Kasba Indore admeasuring 15.62 acres to Abaji Ballal, the priest of the Holkar family on his representation that he was in service of the Huzur Darbar for a long period but had no garden at Kasba Indore and was therefore finding it difficult in getting tulsi leaves and flowers for making offerings to the deities.
The grant of inam to him was on Putra Pautradi Vansh Parampara condition by way of parvarish.
It appears from the report that Abaji Ballai had only one son named Laxman and he also had only one son named Raghunath Rao.
After the death of Abaji Ballal be was succeeded by Laxman.
It appears that Laxman represented in the year 1886 that he was entitled to hold as inam an area of 15.62 acres in Kasba Indore while the land in his possession was only 5.91 acres, the remaining area having been acquired by the Durbar and prayed for a grant of an area of 9.72 acres in exchange.
An inquiry was thereupon held and the claim was found to be true.
By Durbar Order No. 9 dated December 14, 1888 the inamdar was given 9.72 acres of land in Mauja Palashiya Hana.
It also appears that the family built residential houses at Indore presumably out of the income of the inam and also acquired immovable properties at Ujjain consisting of a house and some agricultural lands.
After the death of Laxman Rao, his son Raghunath Rao was recognized to be the inamdar.
The common ancestor Raghunath Rao had three sons, Madhav Rao, Sadashiv Rao and Gopal Rao.
Of these, Madhav Rao and Sadashiv Rao had predeceased their father Raghunath Rao.
Madhav Rao died without leaving an heir while Sadashiv 488 Rao left a son Purushottam Rao.
The third son Gopal Rao disappeared about an year before the death of his father Raghunath Rao and his whereabouts were not known till the news of his death in 1932 at the Secunderabad was received, after the death of Raghunath Rao in 1928.
On the death of Raghunath Rao, the last Purushottam Rao being the sole survivor of the eldest male line of holder became the inamdar and also the karta of the joint Hindu family.
The suit out of which this appeal arises was instituted by the three appellants Anant, Govind and their mother Smt.
Laxmi Bai being the legal heirs and successors of Gopal Rao, as plaintiffs on December 12, 1955 for partition and separate possession of their half share in the joint family property described in Schedule 'A ' appended to the plaint against respondents 1 and 2 Purushottam Rao and his mother Smt.
Rama Bai being defendants 1 and 2, impleading Krishna Rao, the eldest son of Gopal Rao as defendant 3 because he failed to join them as a plaintiff in the suit.
The case of the plaintiffs was that defendant No. 1 Purushottam Rao in his capacity as the karta of the joint Hindu family was in possession and management of the joint family property, including the inam lands at Kasba Indore and Mauja Palashiya Hana.
The plaintiffs ' claim was contested by defendants 1 and 2 Purushottam Rao and Smt.
Rama Bai.
They pleaded inter alia that the plaintiffs ' predecessor in interest Gopal Rao had separated from the family by taking his share in the year 1917 18 and therefore the plaintiffs had no kind of right or title in the suit properties that the inam lands and the properties acquired from out of the inam being impartible in nature, the succession to which was governed by the rule of lineal primogeniture, the properties exclusively belonged to defendant No. 1 Purushottam Rao; and that the conferral of bhumiswami rights on respondent 1 under section 158(1)(b) of the Madhya Pradesh Land Revenue Code, 1959 made the suit lands his separate and exclusive property and it was not part of the joint estate of the undivided family.
Incidentally, the Madhya Pradesh Land Revenue Code, 1959 was brought into force w.e.f. October 1, 1959 which had the effect of changing the nature of the tenure.
The point in controversy in this appeal is now limited to the 489 inam lands and the houses and other properties built from out of the income of the inam lands at Kasba Indore and Mauja Palashiya Hana.
The learned Additional District Judge held that the inam lands together with the properties acquired from the income of the inam were ancestral impartible estate since the same had devolved by survivorship by the rule of lineal primogeniture and therefore constituted joint family property and that the rule of impartibility and the special mode of succession by the rule of lineal primogeniture were nothing but incidents of the inam which stood extinguished by section 158(1)(b) of the Code by virtue of which the inam lands became bhumiswami, the succession to which was governed by the personal law of the parties.
The learned Additional District Judge accordingly held that the inam lands at Kasba Indore and Mauja Palashiya Hana constituted joint family property of the parties and decreed the plaintiffs ' claim for partition and separate possession to the extent of their half share in the properties described in Schedule 'A ' to the plaint and to mesne profits thereof.
On appeal, the High Court reversed the judgment of the learned Additional District Judge with regard to the inam lands and the houses and other property acquired at Indore out of the income of the inam holding that they constituted a special grant regulated by the Jagir Manual of the Holkar State.
According to the High Court, the plaintiffs who were the junior members of the family had no kind of right or title to the inam lands except perhaps the right of maintenance and that too up to a certain degree and subject to its determination by the State.
Accordingly the High Court held that defendant No. 1 Purushottam Rao, the inamdar for the time being, became the bhumiswami of the suit lands under section 158(1) (b) of the Code which constituted his separate property.
The High Court however maintained the decree of the learned Additional District Judge with regard to partition and separation of the plaintiffs ' share of immovable properties at Ujjain.
The short and narrow question involved in this appeal is whether the inam lands which became bhumiswami lands under section 158(1)(b) of the Code were the self acquired property of the inamdar and defendant No. 1 Purushottam Rao was entitled to remain in full and exclusive possession and enjoyment thereof, or the conferral of bhumiswami rights in respect of such inam 490 lands on him must enure to the benefit of the members of the joint Hindu family and therefore the bhumiswami lands were liable to be partitioned like any other coparcenary property.
It is common ground that the inam lands were impartible, the succession to which was governed by the rule of lineal primogeniture.
That must be so because the Jagir Manual of the Holkar State by r. 134 provides that the rule which refers to jagirs will apply to inams also except to the extent modified by any Darbar Order or circular.
Chapter II, r. 2 provides: "2.
A Jagir grant shall be indivisible and impartible property.
" R. 3 provides for the rule of lineal primogeniture and it follows: "3.
Every Jagir grant, which is not a purely lifegrant, shall descend in the order of primogeniture i.e. to the eldest male line of the last holder e.g.
If a grantee has descendants as shown in the following pedigree table: A (Grantee) | | B C D | | | | | | G H I | | | | J E F | | | N | | K L M The Jagir will after A 's death descend to B.
After B it will descend to E to K." Proviso to r.3 preserves the right of maintenance of the junior members of the family and it reads: "Provided that the right of the members of the 491 junior branches, claiming descent from the original grantee to a share in the income of the Jagir or maintenance according to the custom of the family or orders of the Government, shall not be affected thereby." Although the original sanad granted to Abaji Ballal in 1837 is not forthcoming, the report of the Inam Commissioner discloses that the grant of inam to him was on Putra Pautradi Vanash Parampara condition by way of parvarish i.e. maintenance.
Thus the grant of the inam lands was for maintenance of the members of the joint family and was also heritable.
There is ample evidence on record to show that the inam lands although impartible were always treated by members of the family as part of the joint family properties and the succession to the inam was by the rule of survivorship as modified by the rule of lineal primogeniture.
It is also clear that the junior members were in joint enjoyment of the inam lands and that was because the proviso to r. 3 expressly recognized their rights of maintenance.
Further, the evidence shows that the properties acquired by the inamdar for the time being from out of the income of the inam such as the two houses at Indore and other properties were always dealt with as part of the joint family property.
There is on record, an application for mutation made by defendant No. 1 Purushottam Rao on December 15, 1928 (exhibit
P 6) wherein he had stated that his grand father had died on August 8, 1928 and therefore he prayed for substitution of the names of the legal heirs in the inam register, the material portion of which reads: "I am his son 's son i.e. his grandson and as such his heir.
(A) Besides me the sons of my uncle i.e. (1) Krishna Rao (2) Anant Rao and (3) Govind Rao are also his heirs, Besides us no other person is his heir (A).
" The prayer was that the names of all these heirs be substituted.
There is also an affidavit of Purushottam Rao dated December 7, 1928 (exhibit P 5) regarding the death of his grand father Raghunath Rao and it mentions that he had three sons viz, Madhav Rao, Sadashiv Rao and Gopal Rao.
It was averred that Madhav 492 Rao who was the eldest had already expired leaving no issue and his wife had also died and that the whereabouts of Gopal Rao were not known since 3 1/2 or 4 years.
It was stated that Gopal Rao had three sons viz. Krishna, Anant and Govind and all the three of them were minors.
It then recites: "All the three minor sons of Gopal Rao were living jointly with me." Purushottam Rao examined as DW 24 has stated that the whereabouts of Gopal Rao were not known when his grand father Raghunath Rao was operated upon resulting in his death in the hospital.
When confronted with portion marked 'AA ' in exhibit P 6 he unequivocally admitted that he could not deny the statement made therein.
He however went on to assent that the expenditure incurred by him on the plaintiffs by way of maintenance was not incurred by reason of their being the members of the joint family but because they had no resources of their own and it was necessary to give them maintenance allowance under the Inam Rules.
It is quite apparent from the course of dealings that the inam lands at Kasba Indore and Mauja Palashiya Hana and other inam properties in the hands of the common ancestor Raghunath Rao which devolved upon defendant No. 1 Purushottam Rao were nothing but an ancestral impartible estate.
Under the scheme of the Code there was a drastic change brought about not only in the nature of the tenure of inam lands but also in the mode of succession.
S.158(1)(b) of the code provides: "158.
Bhumiswami (1) Every person who at the time of coming into force of this Code, belongs to any of the following classes shall be called a Bhumiswami and shall have all the rights and be subject to all the liabilities conferred or imposed upon a Bhumiswami by or under this code, namely: (a) ** ** ** ** ** (b) every person in respect of land held by him in the Madhya Bharat region as a Pakka Tenant or as a Muafidar, Inamdar, or Concessional Holder, as defined in the 493 Madhya Bharat Land Revenue and Tenancy Act, Samvat 2007(66 of 1950)"; The plain language of s.158(1)(b) effected a complete extinction of the inam rights followed by simultaneous conferral of bhumiswami rights.
Every person, in respect of the land hold by him in the Madhya Bharat region as an inamdar, at the time of the coming into force of the code, became a bhumiswami thereof, and acquired all the rights and became subject to all the liabilities of a bhumiswami under the Code.
The words "in respect of land held by him" appearing in s.158(1)(b) refer to the status and character of the tenure holder in relation to the holding on the appointed day.
The accrual of the status of bhumiswami by such person was automatic and he acquired all the rights and became subject to all the liabilities conferred or imposed upon a bhumiswami by or under the Code.
As a necessary corollary, he became subject to the provisions of s.164.
S.164 provides that subject to his personal law, the interests of a Bhumiswami shall, on his death, pass by inheritance, survivorship or bequest, as the case may be.
On a combined reading of ss.158(1)(b) and 164, the legal consequence that ensued was that the incident of impartibility and the special mode of succession by the rule of primogeniture which were terms of the grant of inam lands under the Jagir Manual of the Holkar State, stood extinguished.
After the conferment of bhumiswami rights, the incidents and character of the tenure became transformed and the restrictions placed thereon disappeared, and such lands became capable of being held in joint ownership like any other coparcenary property.
It must logically follow that the conferral of bhumiswami rights on the holder for the time being under s.158(1)(b) of the Code in respect of ancestral inam lands must necessarily enure to the benefit of all the members of the joint family.
In our judgment, the view expressed by the High Court that the inam lands and the two houses constructed at Indore and other properties acquired from out of the income of the inam exclusively belonged to defendant No. 1 Purshottam Rao, the holder for the time being at the time when the Code was brought into force, can hardly be sustained.
Since the decision of the Privy Council in Shiba Prasad Singh vs Rani Prayag Kumari Debi and ors(1).
it must taken as well settled that an estate which is impartible by custom cannot be said to be the separate or exclusive 494 property of the holder of the estate.
Where the property is ancestral and the holder has succeeded to it, it would be part of the joint estate of the undivided Hindu family.
In the following illuminating passage Sir Dinshaw Mulla observes: "The keynote of the whole position, in their Lord ships view, is to be found in the following passage in the judgment in the Tipperah(1) case: "Where a custom is proved to exist, it supersedes the general law, which however, still regulates all beyond the custom." "Impartibility is essentially a creature of custom.
In the case of ordinary joint family property, the members of the family have (1) the right of partition; (2) the right to restrain alienations by the head of the family except for necessity, (3) the right of maintenance and (4) the right of survivorship.
The first of these rights cannot exist in the case of an impartible edate, though ancestral from the very nature of the estate.
The second is incompatible with the custom of impartibility as laid down in Sartaj Kumari 's case(2) and the first Pittapur case(3) and so also the third as held in the second Pittapur case(4).
To this extent the general law of the Mitakshara has been superseded by custom, and the impartible estate though ancestral is clothed with the incidents of self acquired and separate property.
But the right of survivorship is not inconsistent with the custom of impartibility.
This right, therefore, still remains and this is what was held in Baijanth 's case(6).
To this extent the estate still retains its character of joint family property, and its devolution is governed by the general Mitakshara law applicable to such property.
Though the other rights which a coparcener acquired by birth in joint family property no longer exist, the birthright of the senior member to take by survivorship still remains, Nor is this right a mere succession is similar to that of a reversioner succeeding on the death 495 of a Hindu widow to her husband 's estate.
It is a right which is capable of being renounced and surrendered.
Such being their Lordship 's view, it follows that in order to establish that a family governed by the Mitakshara in which there is an impartible estate has ceased to be joint it is necessary to prove an intention, express or implied, on the part of the junior members of the family to renounce their right of succession to the estate.
" The incidents of impartible estate laid down in Shiba Prasad Singh 's case and the law there stated have been reaffirmed in the subsequent decisions of the Privy Council and of this Court.
It is not necessary to refer to them as they have all been dealt with in a recent judgment of this Court in Nagesh Bisto Desai vs Khando Tirmal Desai(1).
Impartibility is essentially a creature of custom.
Here it is a term of the grant.
The junior members of a joint family in the case of ancient impartible joint family estate take no right in the property by birth and therefore have no right of partition having regard to the very nature of the estate that it is impartible.
The only incidence for joint property which still attaches to the joint family property is the right of survivorship which, of course, is not inconsistent with the custom of impartibility.
The incident of impartibility attached to inam lands no longer exists by reason of s.158(1)(b) of the Code aa they have now become bhumiswami lands.
The right of junior members of the family for maintenance is governed by custom and not based upon any joint right or interest in the property as owners.
In case of inams in the Holkar State such right was again a condition of the grant.
In view of the authorities cited in Nagesh Bisto Desai 's case, supra, it must be held that the inam lands though impartible were nevertheless joint family properties of the parties.
The impartibility of the tenure governed by the Jagir Manual of the Holkar State and the rule of lineal primogeniture governed by the Jagir Manual, Chapter II, rr.2 and 3 did not per se destroy its nature as joint family property or render it the separate property of the last holder so as to destroy the right of survivorship; the estate retained its character of joint family property and its devolution was governed by the rule of lineal primogeniture.
To establish that a family governed by the Mitakshara in which there is an impartible estate has ceased to be joint, it is necessary to prove an intention, express or implied on the part of the junior members of the family to renounce their succession to the estate.
496 The learned Additional District Judge during the course of his judgment has held on consideration of the evidence that there was no partition in the joint family as alleged by defendants 1 and 2 and that finding has not been reversed by the High Court in appeal.
The learned Additional District Judge has referred to several well known decisions of the Privy Council dealing with the incidents of an impartible estate, including that of Shiba Prasad Singh 's case, supra, but the High Court surprisingly did not refer to any one of them.
He has also particularly referred to the nature and incidence of a protected thekedari under s.102 of the C.P. Land Revenue Act, 1917 and relied upon the decision of the Privy Council in Thakur Bhagwan Singh vs Darbar Singh '(1) and also to several decisions of the Nagpur and Madhya Pradesh High Courts and in particular to Mani Ram vs Ram Dayal(2) and Smt.
Pilanoni Janakram vs Anandsingh Sakharam(3) where a similar question arose.
He further felt that the principles laid down by the Bombay High Court in Lingappa Rayappa Desai vs Kadappa Bapurao Desai(4) dealing with the Bombay Hereditary Offices Act, 1874 holding that watan lands stand in the same footing as ancestral impartible estate in a joint Hindu family passing by survivorship from one line to another according to primogeniture, must govern the case.
The High Court declined to follow the long line of decisions of the Nagpur and Madhya Pradesh High Courts dealing with the protected the kedari tenure under section 109 of the C.P. Land Revenue Code, 1917 saying that they were "inapplicable" to the case of jagir and inam properties which at no time were considered to be joint family properties but constituted a 'special kind of grant ' regulated by the terms of the grant or the rules governing the same.
It also declined to follow the decision of the Bombay High Court in Lingappa 's case, supra, because it did not "appeal" to the Court as it distinguished the decision of the Madras High Court in Sri Pavu Janardhana Krishna Ranga Rao Bahadur vs The State of Madras "for reasons which did not appear to be sound".
It is difficult to sustain both on principle and precedent the view of the High Court that inam lands being impartible in nature, the succession to which was governed by the rule of lineal primogeniture, the two houses constructed at Indore and other properties acquired 497 from out of the income of the inam exclusively belonged to defendant No. 1 Purushottam Rao, the holder for the time being and constituted his separate property.
In the former State of Madhya Pradesh, the existence of such and impartible tenure was not unknown.
The nature and incidence of a protected thekedari tenure under s.109 of the C.P. Land Revenue Act, 1977 came up for consideration before the Privy Council in Bhagwan Singh 's case, supra.
The Privy Council observed that though the tenure of a protected thekedari was impartible and descended by primogeniture and was made inalienable, and it was provided that only one person at a time shall be entitled to succeed to such status, at the same time: "The Act recognises that leasehold interests, though impartible, may nevertheless be joint family property of the thekedar and his family.
" This was in consonance with the view expressed by Sir Bipin Krishna Bose, Addl.
J.C. in Fagwa vs Budhram(1) that the grant of a protected thekedari tenure to the eldest male member of a family did not make the property his separate property.
In Narayan Prasad vs Laxman Prasad(2) J. Sen, J. hold that where protected thekedari rights in respect of a village were acquired out of joint family funds, the village would be joint family property and a member of the joint family would be entitled to a share in the theka and to be maintained out of it.
In Chandanlal vs Pushkarraj(3), Kaushalendra Rao, J. speaking for the Court observed: "It has always been the accepted view that the grant of protected status to a thekedar did not make the theka the exclusive property of the person on whom the protected status is conferred." The learned Judge then referred to the decision of the Privy Council in Bhagwan Singh 's case and rejected the contention that the conferral of the protected status on one of the members destroyed the pre existing rights of the other members of the family.
In Sukhanboi & Anr.
vs Ramsharan Doma Sao and Ors(4).
Mudholkar, J. tried to draw a distinction between the present tights and future rights of the members of the family and held that while the junior members have future or contingent rights such as 498 a right of survivorship, they have, apart from custom or relationship, no present rights as, for instance, a right to restrain alienation or to claim maintenance.
The decision of Mudholkar J. in Sukhambai 's case taking a narrow and restricted view of the rights of the members of a joint Hindu family to participate in the present enjoyment and management of a protected thekedari tenure was however reversed on appeal by B.P. Sinha, C.J. and Hidayatullah, J. in Shiv Prasad Sao vs Sukhan Bai (Letters Patent Appeal No. 19 of 1449 decided on December, 30, 1954) observing that if there was a family arrangement for the joint enjoyment of the theka in the past, it would bind not only the protected thekedar for the time being but the whole family and so long as the family arrangement is not rescinded by the family itself, it must continue.
The learned Judges considering the implications of s.109(1)(a) of the Act observed: "The conferral of protected status does not disturb the rights of the members inter se though they may not be recognised by the State.
As between members the rights of any particular member under the arrangement must continue.
" As regards the validity of arrangements made by the co sharers in a theka dividing the property between themselves for beneficial enjoyment of the thekedar, they said: "From the year 1881 when all existing arrangements were to continue, down to this day when private partitions and family arrangements have been recognised as binding on the family, there is an underline/current of recognition of joint family status.
Most of these villages, when they were acquired, belonged, to a joint family and the intention in conferring protection was not to disturb arrangements but to recognise one member as a Thekedar and to restrain transfers and impose impartibility and primogeniture.
Even though the Act of 1917 enacted about private partitions and arrangements, the law was merely declaratory of family custom as is apparent from a perusal of the various Settlements Reports.
" The learned Judges then added a word of caution: "Under the C.P. Land Revenue Act, a protected status could be conferred not only upon Hindus but also upon Muslims and others.
The rules of impartible 499 estates as understood in Hindu law cannot, therefore, be made applicable and the analogy is apt to be misleading." Similar question arose in Mani Ram vs Ram Dayal, supra, and Smt, Pilanoni Janakram vs Anandsingh Sakharam, supra.
The decision in Mani Ram 's case is of some importance.
Here, T.C. Shrivastava, J. had to consider the impact of s.39(1) of the M.P. Abolition of Proprietary Rights (Estates Mahals, Alienated Lands) Act, 1951 which provided that where the proprietary rights held by a protected thekedar vest in the State under section 3, the Deputy Commissioner may reserve to such proprietor the rights of an occupancy tenant in the whole or part of the home farm land and shall determine the rent thereon.
section 39(2) there of provided that any person becoming an occupancy tenant under sub s(1) shall be a tenant of the State.
The contention on behalf of the protected thekedar who brought the suit was that by virtue of such settlement he became the full and exclusive tenant thereof.
The learned Judge after referring to the decision of the Privy Council in Bhagwan Singh 's case, supra, and the aforesaid decision of the High Court in Shiv Prasad Sao 's case, supra, reiterated that although section 109(1)(a) of the C.P. Land Revenue Act, 1917 provided that protected thekedari rights would descend by the rule of primogeniture and the theka was impartible in nature, the rights of the other members of the joint Hindu family in the theka continued though they could not obtain a partition of the lands in the theka or claim to be in possession of any lands pertaining to the theka.
He referred to the observations made in Shiv Prasad Sao 's case set out above and observed that it was open to the protected thekedar to come to an arrangement with his co sharers to divide the lands attached to the theka and such a family arrangement would be binding on the co sharers.
Repelling the contention based on section 39 (1) of that Act he held that after the abolition of the proprietary rights in 1950, the rights of protected thekedars had completely disappeared and the statutory bar of impartibility and inalienability removed and therefore the lands which were joint family lands subject to statutory restrictions assumed the character of normal joint family property free from the statutory restrictions.
In Smt.
Pilanoni 's case, supra, K.L. Pandey, J. held that although under cl.(5) of the Sarangarh State Wazib ul erz there was no right of partition given to a thekedar gaontia, but it permitted joint and divided management of the bhogra lands attached to the theka 500 among the members of the family and though the State had reserved to itself under cl.(15) the right to induct a new thekedar who became entitled to the entire bhogra lands in the village, the effect of the two provisions was that the State could not be bound by a partition effected among the members of the family by way or a family arrangement but it would be binding on the members or the family, including the new thekedar who may have succeeded to the status of a thekedar gaontia.
As to the settlement of such bhogra lands with the thekedar in raiyati rights under s.54(1) of the M.P. Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1951, the Court held that such settlement must enure to the benefit of the bhogra holders under a family arrangement since the lands continued to be impressed with the character of being joint family property.
The point in controversy really stands concluded by the recent decision of this Court in Nagesh Bisto Desai 's case, supra.
There, the question was whether the plaintiff being the holder for the time being of the Kundgol Deshgat estate which was an impartible estate, the succession to which was governed by the rule of lineal primogeniture, was entitled to remain in full and exclusive possession and enjoyment of the watan lands resumed under section 3(4) of the Bombay Pargana & Kulkarni Watans (Abolition) Act, 1950 and section 4 of the Bombay Merged Territories Miscellaneous Alienations Abolition Act, 1955 which had been regranted to him as an occupant thereof under sections 4 and 7 of the Acts respectively.
It was held that the plaintiff 's contention ran counter to the scheme of the Bombay Hereditary Offices Act, 1874 and was against settled legal principles, and that the Watans Act was designed to preserve the pre existing rights of the members of the joint Hindu family.
The submission based on the alleged impartibility of watan property and the applicability of the rule of lineal primogeniture regulating succession to the estate was rejected on the ground that it could not prevail as these being nothing more than the incidents of the watans stood abrogated by section 3(4) of the 1950 Act and section 4 of the 1955 Act.
It was held that the effect of the non obstante clause in section 3(4) of the 1950 Act was to bring about a change in the tenure or character of the holding as watan lands but did not affect the other legal incidents of the property under the personal law and if the property belonged to the joint Hindu family, then the normal rights of the members 501 of the family to ask for partition were not in any way affected and therefore the re grant of the lands to the watandar under section 4(1) of the 1959 Act and section 7 of the 1955 Act must ensure to the benefit of the entire joint Hindu family.
That precisely is the position here.
Although under the Bombay Pargana & Kulkarni Watans (Abolition) Act, 1950 and the Bombay Merged Territories Miscellaneous Alienations Abolition Act, 1955 there was at first an abolition of watans and resumption of watan lands, followed by re grant of such lands to the watandar as an occupant under the Bombay Land Revenue Code, 1879, that hardly makes a difference in principle.
The only difference is that under section 158(1)(b) of the M.P. Land Revenue Code, there was a simultaneous extinction of the inams resulting in conferral of bhumiswami rights on every person holding inam lands on the date on which the Code was brought into force.
The result therefore is that the appeal must succeed and is allowed.
The judgment and decree passed by the High Court are reversed and those of the learned Additional District Judge decreeing the plaintiff 's suit for partition and separate possession of their half share in the properties described in Schedule 'A ' to the plaint are restored.
The decree shall be drawn in terms of the compromise arrived at.
There shall be no order as to costs.
N.V.K. Appeal allowed.

summary:
In 1837 the late Maharaja Harihar Rao Holkar made a grant of an inam of a garden to the priest of the Holkar family.
The grant of inam was on Putra Pautradi Vansh Parampara condition by way of parvarish i.e., maintenance, The three appellants in the appeal were the legal heirs and successors of the grandson of the original inamdar, and the 1st Respondent as the sole survivor of the eldest male line of the last holder, the inamdar and as also the karta of the joint Hindu family.
The appellants plaintiffs instituted a suit for partition and separate possession of their half share in the joint family property alleging that defendant No. 1 in his capacity as the karta of the joint Hindu family was in possession and management of the joint family property, including the inam lands.
The claim was contested by respondents defendants 1 and 2 who contended that the plaintiffs predecessor in interest had separated from the family by taking his share in the year 1917 18 and therefore the plaintiffs had no kind of right or title in the suit property and that the inam lands and the properties acquired from and out of the inam being impartible in nature, the succession to which was governed by the rule of lineal primogeniture, the properties exclusively belonged to defendant No. 1 and that the conferral of bhumiswami right on defendant No. 1 under section 158 (1)(b) of the Madhya Pradesh Land Revenue Code, 1959 made the suit lands his separate and exclusive property and it was not part of the joint estate of the undivided family.
The Additional District Judge held that the inam lands together with the property acquired from the income of the inam were ancestral impartible estate since the same had devolved by survivorship by the rule of linea 485 primogeniture and therefore constituted joint family property and that the rule of impartibility and the special mode of succession by the rule of lineal primogeniture were nothing but incidents of the inam which stood extinguished by section 158(1)(b) of the Code.
The plaintiff 's claim for partition and separate possession to the extent of their half share in the plaint schedule properties and to mesne profits were decreed.
On appeal, the High Court reversed the judgment of the Additional District Judge with regard to the inam lands and the houses and other property acquired out of the inam holding.
The High Court held that the plaintiffs who were the junior members of the family had no kind of right or title to the inam lands except the right to maintenance and that defendant No. 1, the inamdar for the time being, became the bhumiswami of the suit lands under section 158(1)(b) of the Code which constituted his separate property.
The High Court however maintained the decree of the Additional District Judge with regard to partition and separation of the plaintiffs ' share of immovable property.
Allowing the appeal, ^ HELD: 1.
section 158 (1)(b) of the Madhya Pradesh Land Revenue Code, 1959 effected a complete extinction of the inam rights followed by simultaneous conferral of bhumiswami rights.
Every person, in respect of the land held by him in the Madhya Bharat region, as an inamdar, at the time of the coming into force of the Code, became a bhumiswami thereof, and acquired all the rights and became subject to all the liabilities of a bhumiswami under the Code.
[493B] 2.
The words "in respect of land held by him" appearing in section (158)(1) (b) refer to the status and character of the tenure holder in relation to the holding on the appointed day.
The accrual of the status of bhumiswami by such person was automatic and he acquired all the rights and became subject to all the liabilities conferred or imposed upon a bhumiswami by or under the Code.
[493C] 3.
On a combined reading of SS.
158(1) (b) and 164 the legal consequence that ensued was that the incident of the impartibility and the special mode of succession by the rule of primogeniture which were terms of the grant of inam lands under the Jagir.
Manual of the Holkar State stood extinguished.
After the conferment of bhumiswami rights, the incidents and character of the tenure became transformed the restrictions placed thereon disappeared, and such lands became capable of being held in joint ownership like any other coparcenary property.
[493E] 4.
The conferral of bhumiswami rights on the holder for the time being under section 158(1)(b) of the Code in respect of ancestral inam lands necessarily enures to the benefit of all the members of the joint family.
[493F] 5.
Impartibility is essentially a creature of custom.
Here it is a term of the grant.
The junior members of a family in the case of an ancient 486 impartible joint family estate take no right in the property by birth and therefore have no right of partition having regard to the very nature of the estate that it is imartible.
The only incidence for joint property which still attaches to the joint family property is the right of survivorship which, of course, is not inconsistent with the custom of impartibility.
[495D] In the instant case, the incident of impartibility attached to inam lands, no longer exists by reason of section 158(1)(b) of the Code as they have now become bhumiswami lands.
The right of junior members of the family for maintenance is governed by custom and not based upon any joint right or interest in the property as co owners.
[495E] 6.
To establish that a family governed by the Mitakshara in which there is an impartible estate has ceased to be joint, it is necessary to prove an intention, express or implied, on the part of the junior members of the family to renounce their succession to the estate.
[495H] 7.
The impartibility of the tenure governed by the Jagir Manual of the Holkar State and the rule of lineal primogeniture governed by the Jagir Manual, Chapter 11, rules 2 and 3 did not per se destroy its nature as joint family property or render it the separate property of the last holder so as to destroy the right of survivorship; the estate its character of joint family property and its devolution was governed by the devolution was governed by the rule of survivorship as modified by the rule of lineal primogeniture.
[495G] Shiba Prasad Singh vs Rani Prayag Kumari Debi & Ors., LR (1931 32) 59 IA 331 and Nagesk Bisto Desai vs Khando Tirmal Desai, ; , referred to.


judgement:
ition No. 9080 of 1983 (Under article 32 of the Constitution of India) K. K. Singhvi, A. K. Gupta and Brij Bhushan for the petitioner.
K. G. Bhagat, Addl.
General, Harbans Lal and R.N. Poddar for the Respondents.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
The Delhi Veterinary Association is the petitioner in the above case.
It is an association of veterinary doctors who are residing in the Union Territory of Delhi.
By this petition under Article 32 of the Constitution, the petitioner 431 is seeking relief in respect of Veterinary Assistant Surgeons working in the office of the Development Commissioner, Delhi Administration, Delhi, who are its members.
It is alleged that these Veterinary Assistant Surgeons have been denied the benefit of the principle of `equal pay for equal work ' incorporated in Article 39 (d) of the Constitution and that there has been violation of their fundamental rights guaranteed under Article 14 and Article 15 of the Constitution because their scale of salary is lower than the pay scale of Veterinary Assistant Surgeons employed by the Union Territory of Chandigarh or by the Central Government in the Indo Tibetan Border Police (I.T B.P) and in the Border Security Force (B.S.F ) It is also alleged that the Veterinary Assistant Surgeons are persons who have obtained Bachelor 's Degree in Veterinary Science and Animal Husbandry (B.V.Sc. & A.H.) from colleges of veterinary medicine and the minimum qualifications for entering the said course are more or less the same as those prescribed for M.B.B.S. or B.D.S. Examinations.
They would be taught in the colleges of veterinary medicine inter alia subjects like Biochemistry, Pharmacology & Toxicology, Bacteriology, Pathology, Hygiene, Parasitology, Surgery, Radiology, Clinical & Preventive medicine, Obstetrics, Gynecology and additionally Animal Husbandry.
Some of them, it is stated, have also undergone some special courses after their degree.
Having regard to the period of study in the college and the subjects taught they claim that they are almost equal to those who have obtained M.B.B.S. and B.D.S. degrees.
It is alleged that whereas the Veterinary Assistant Surgeons in the Union Territory of Chandigarh were paid salary in the pay scale of Rs. 850 1700 on the basis of the pay scale prevailing in the adjoining State of Punjab and the Veterinary Assistant Surgeons in the Union Territories of Arunachal Pradesh and Mizoram were paid in the pay scale of Rs. 550 900, the Veterinary Assistant Surgeons of the Union Territory of Delhi were given pay in the pay scale of Rs. 425 750 from January 1, 1973 and on a representation being made by them, their pay scale was modified to Rs. 550 900 with effect from November 2, 1977 as was being paid in the Union Territories of Arunachal Pradesh and Mizoram with effect from January 1, 1973 even though the Ministry of Agriculture had recommended that their pay scale should be revised to Rs. 650 1200.
The petitioner contends that even now the disparity between their pay scale and the pay scale of the Veterinary Assistant Surgeons of the Union Territory of 432 Chanigarh and of I.T.B.P. and B.S.F. which is fixed at Rs. 650 1200 persists.
On the basis of the above allegations the petitioner prays that a direction should be issued to the respondents to treat the Veterinary Assistant Surgeons of the Delhi Administration at par with the Veterinary Assistant Surgeons of Chandigarh, I.T.B.P. and B.S.F. A counter affidavit is filed on behalf of the Union Government denying many of the allegations in the petition and in particular the recommendation said to have been made by the ministry of Agriculture.
The Development Commissioner, Delhi has filed a counter affidavit justifying the impugned pay scale and at the same time he has pleaded that this is a matter which should be allowed to be examined by the Fourth Pay Commission.
In view of the latter plea, we feel that it is not appropriate to deal with the merits of the claim of the Veterinary Assistant Surgeons of Delhi in the course of this order although we feel that prima facie their grievance appears to be a legitimate one.
Since any alteration in their pay scales would involve modification of the pay scales of officers in the higher cadres in the same department and in the corresponding cadres in other departments, the work of refixation of the pay scale should not ordinarily be undertaken by the Court at this stage because the Fourth Pay Commission is required to consider the very same question after taking into consideration all the relevant aspects.
In addition to the principle of 'equal pay for equal work ', the pay structure of the employees of the Government should reflect many other social values.
Apart from being the dominant employer, the Government is also expected to be a model employer.
It has, therefore, to follow certain basic principles in fixing the pay scales of various posts and cadres in the Government service.
The degree of skill, strain of work, experience involved, training required, responsibility undertaken, mental and physical requirements, disagreeableness of the task, hazard attendant on work and fatigue involved are, according to the Third Pay Commission, some of the relevant factors which should be taken into consideration in fixing pay scales.
The method of recruitment, the level at which the initial recruitment is made in the hierarchy of service or cadre, minimum educational and technical qualifications prescribed for the post, the nature of dealings with the public, avenues of promotion available and hori 433 zontal and vertical relativity with other jobs in the same service or outside are also relevant factors.
At the same time while fixing the pay scales, the paying capacity of the Government, the total financial burden which has to be borne by the general public, the disparity between the incomes of the Government employees and the incomes of those who are not in Government service and the net amount available for Government at the current taxation level, which appears to be very high when compared with other countries in the world, for developmental purposes after paying the salaries and allowances to the Government servants have also to be borne in mind.
These are, however, not exhaustive of the various matters which should be considered while fixing the pay scales.
There may be many others including geographical considerations.
Above all, it should be noted that the work of a Pay Commission does not really mean an increase of Rs. 100 here or recommending an additional allowance of Rs. 50 there.
It does also mean a mere reduction of the number of pay scales or an attempt at the reduction of the gap between the highest pay scale and the lowest pay scale It is a big exercise in gearing up the national economy to secure the highest good to the millions of our countrymen.
In an egalitarian society based on planned economy it is imperative that there should be an evolution and implementation of a scientific national policy of incomes, wages and prices which would be applicable not merely to Government services but also to the other sectors of the national economy, As far as possible the needs of a family unit have to be borne in mind in fixing the wage seales.
The 'needs ' are not static.
They include adequate nutrition, medical facilities, clothing, housing education, cultural activities etc.
Any provision made while fixing the pay scales for the development of a society of healthy and well educated children irrespective of the economic position of the parents is only an investment and not just an item of expenditure.
In these days of galloping inflation, care should also be taken to see that what is fixed today as an adequate pay scale does not become inadequate within a short period by providing an automatic mechanism for the modification of the pay scale.
The duties of a Pay Commission are really onerous.
But we have no doubt that the Fourth Pay Commission will keep in view 434 all the relevant considerations, some of which are referred to above, while dealing with the complex problem of determining the equitable pay scales for the vast number of employees of the Central Government and of the Union Territories.
We have also no doubt that the Fourth Pay Commission will not just be another Pay Commission as in the past but will lay down sound principles regarding the salary structure of the public services.
In the above situation, we do not feel called upon to decide in isolation the question of discrimination raised before us.
This is a matter which should be left to be decided by the Government on the basis of the recommendations of the Fourth Pay Commission.
It was, however, urged that since the Fourth Pay Commission would not be making any recommendation in respect of the period between 1973 and the date on which the new pay scales to be fixed on the recommendation of the Fourth Pay Commission would come into force, the Court should consider whether the Veterinary Assistant Surgeons were entitled to any retrospective benefit in respect of the said past period.
Having regard to the long delay in approaching this Court after the fixation of their pay scale earlier, we do not propose to grant any relief in respect of that period.
The petition is, therefore, dismissed.
The petitioner is at liberty to make its representation before the Fourth Pay Commission to determine the pay scale of the Veterinary Assistant Surgeons of Delhi.
We are sure that the Fourth Pay Commission which is presided over by a former Judge of this Court would consider their representation sympathetically.
N.V.K. Petition dismissed.

summary:
The Petitioner in a writ petition sought relief in respect of Veterinary Assistant Surgeons working in the Delhi Administration, alleging that the Veterinary Assistant Surgeons have been denied the benefit of the principle of`equal pay for equal work ' incorporated in Article 39 (d) of the Constitution and that there has been violation of the fundamental rights guaranteed under Articles 14 and 16, because their scale of salary (Rs. 550 990) was lower than the pay scale of Veterinary Assistant Surgeons employed by the Union Territory of Chandigarh (850 1700), or by the Central Government in the Indo Tibetan Boarder Police and by the Border Security Force (Rs. 650 1200).
The writ petition was opposed by the Union of India denying many of the allegations in the petition, while the Development Commissioner, while the Delhi Administration contested the writ petition by justifying the impugned pay scale and also by pleading that the matter should be allowed to be examined by the Fourth Pay Commission.
Dismissing the writ petition, ^ HELD: 1.
The question of the fixation of pay scale for Veterinary Assistant Surgeons should be left to be decided by the Government on the basis of the recommendation of the Fourth Pay Commission.
The question of discrimination cannot be decided in isolation.
Having regard to the long delay in approaching this Court after the fixation of the pay scale, no relief can be granted in respect of the period between 1973 and 1984.
The petitioner is at liberty to make its representation before the Fourth Pay Commission.
[434 H E] 430 2.
In addition to the principle of `equal pay for equal work ', the pay structure of the employees of the Government should reflect many other social values.
Apart from being the dominant employer, the Government is also expected to be a model employer.
It has, therefore, to follow certain, basic principles in fixing the pay scales of various posts and cadres.
The degree of skill, strain of work, experience involved, training required, responsibility undertaken, mental and physical requirements disagreeableness of the task, hazard attendant on work and fatigue involved are some of the factors which should be taken into consideration in fixing pay scales.
The method of recruitment, the level at which the initial recruitment is made in the hierarchy of service or cadre, minimum educational and technical qualification prescribed for the post, the nature of dealings with the public, avenues of promotion available and horizontal and vertical relativity with other jobs in the same service or outside are also relevant factors.
[432F H; 433A] 3.
Wile fixing the pay scales, the paying capacity of the Government, the total financial burden which has to be borne by the general public, the disparity between the incomes of the Government employees and the incomes of those who are not in government service and the net amount available for government at the current taxation level, after paying the salaries and allowances to the Government servants have also to be borne in mind.
[433B C] 4.
It is imperative that there should be an evolution and implementation of a scientific national policy of incomes, wages and prices which would be applicable not merely to Government services but also to the other sectors of the national economy.
As far as possible the needs of a family unit have to be borne in mind in fixing the wage scales.
The `needs ' are not static.
They include adequate nutrition, medical facilities, clothing, housing, education, cultural, activities etc.
Care should also be taken to see that what is fixed today as an adequate pay scale does not become inadequate within a about period by providing an automatic mechanism for the modification of the pay scale.
[433E G]


judgement:
Civil Appeal No. 5313 of 1983.
Appeal by Special leave from the Judgment and Order dated the 17th January, 1983 in CMWP.
No. 8397 of 1982.
Shanti Bhushan and section Markandeya for the Appellant.
Gopal Subramaniam and Mrs. section Dikshit for the Respondents.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
About 45 plots of land of Kheragarh village and about 15 adjoining plots of land of Nagala Udaiya village situated in the district of Agra were notified under section 4 (1) of the Land Acquisition Act, 1894 (Act No. 1 of 1894) (hereinafter referred to as 'the Act ') for acquisition for a public purpose, namely, for the construction of the Market Yard of the Krishi Utpadan Mandi Samiti, Kheragarh under a notification dated January 8, 1980 issued by the Government of the State of Uttar Pradesh.
As the plots of land in question which 419 were agricultural lands were urgently required for the aforesaid purpose and the Government was of the view that it was necessary to direct that section 5 A of the Act should not apply to the said acquisition proceedings, it simultaneously made an order under section 17 (4) of the Act directing that section 5 A would not apply to the said proceedings and incorporated the said order also in the notification issued.
under section 4 (1) of the Act.
The notification was published in the Official Gazette dated January 9, 1980.
This was followed by a notification dated January 9, 1980 under section 6 of the Act published in the Official Gazette dated January 10, 1980.
That notification contained an order made under section 17 (1) of the Act authorising the Collector to take possession of the plots on the expiration of fifteen days from the publication of the notice under section 9 (1) of the Act though no award under section 11 of the Act had been made.
The above said plots of land which were in all about 60 in number belonged to a number of persons.
The total extent of land proposed to be acquired was about 41.46 acres.
The possession of all the plots of land was also taken in the course of the said acquisition proceedings.
In or about June 1982, notices were issued by the Collector to various persons having interest in the said plots under section 9 (3) of the Act for the purpose of determining the compensation payable to them.
After the issue of the said notices, three persons Hari Singh (appellant No. 1), Pooran Chand (appellant No. 2) and Munna Lal (appellant No. 3) filed a writ petition in Civil Misc.
Writ Petition No. 8397 of 1982 on the file of the High Court of Allahabad questioning the validity of the acquisition proceedings as regards 6 plots of land in Kheragarh village out of the total of about 60 plots of land which had been acquired by the State Government in the above said proceedings.
Appellant No. 1 claimed to be the owner of plots Nos 249, 250 and 252.
Appellant No 2 claimed to be the owner of plot No. 261 and appellant No 3 claimed to be the owner of plots Nos. 133 and 134.
Appellant No. 1 pleaded that there was a house situated on plot No. 249 and that he had also installed a flour mill on it.
They all pleaded that they had no knowledge of the acquisition proceedings and were prejudiced by the order made under section 17 (4) of the Act exempting the operation of section 5 A of the Act in the case of these proceedings.
They further pleaded that there was no urgency sufficient in law to sustain the order made under section 17 (4) of the Act as nothing had been done on the lands for nearly two years.
Appellant No. 1 also pleaded that 420 section 17 (4) of the Act would not be applicable because on a part of his land there was a house.
They also applied for an interim order restraining the Collector from dispossessing them from the plots in question.
On September 9, 1982 the High Court made an interim order restraining the respondents from dispossessing the appellants from the plots until further orders, unless they had already been dispossessed.
But on January 17, 1983, the High Court rejected the writ petition at the stage of admission after hearing the advocates for both the parties.
This appeal by special leave is filed by the appellants under Article 136 of the Constitution on against the order of the High Court.
The High Court has not given any reasons for its order dismissing the writ petition.
The order reads: 'Rejected '.
We have been taken through the writ petition, counter affidavits and other papers filed in the High Court and in this Court.
At the out set we are of the view that the writ petition filed in July, 1982 questioning the notification issued in January, 1980 after a delay of nearly two and a half years is liable to be dismissed on the ground of laches only.
It is no doubt true that the appellant have pleaded that they did not know anything about the notifications which had been published in the Gazette till they came to know of the notices issued under section 9 (3) of the Act but they have not pleaded that there was no publication in the locality of the public notice of the substance of the notification as required by section 4 (1) of the Act.
It should be presumed that official acts would have been performed duly as required by law.
It is significant that a large number of persons who own the remaining plots have not challenged the acquisition proceedings.
The only other petition in which these proceedings.
are challenged is Civil Misc.
Writ Petition No. 11476 of 1982 on the file of the High Court filed subsequently by Amar Singh and four others.
Moreover in a small place like Kheragarh where these plots are situate, the acquisition of these lands would be the talk of the town in a shortwhile and it is difficult to believe that the appellant who are residents of that place would not have known till July, 1982 that the impugned notification had been published in 1980.
Any interference in this case filed after two and a half years with the acquisition proceedings is likely to cause serious public prejudice.
This appeal should, therefore, fail on the ground of delay alone.
421 Now even on merits there appears to be no substance in the case of the appellants.
At the hearing of this appeal, the appellants have confined their case to plots Nos. 249, 261 and 133 and have given up their case in regard to plots Nos. 250, 252 and 134.
Appellant No. 1 claims to be the owner of plot No. 249.
On behalf of the respondents it is urged that appellant No. 1 is recorded only as a co tenure holder alongwith five others and they have not impeached the notifications.
With regard to the allegation about the existence of a house on this plot, it is seen that the said fact is denied.
The respondents rely upon some statements recorded by the revenue authorities suggesting that there was no house on this plot on the date of the notification.
This is a disputed question of fact.
Appellant No. 2 who claims to be the owner of plot No. 261 is stated to have purchased it on November 17, 1980 after the impugned notifications were published.
The title of appellant No. 3 to plot No. 133 is denied by R. K Kannaujia, Secretary, Krishi Utpadan Mandi Samiti, Kheragarh.
In this state of affairs where there are disputed questions of fact it cannot be said that the appellants have made out any case for interference under Article 226 of the Constitution.
On behalf of the appellants reliance is, however, placed on a decision of this Court in State of Punjab vs Gurdial Singh & Ors.(I) In that decision the main point made out was that the acquisition proceedings had been engineered mala fide by a State Minister.
We do not have any such allegation in the present case.
In the circumstances of this case we do not find that there is any ground to hold that the order made under section 17 (4) of the Act exempting the operation of section 5 A of the Act is bad in law even though there appears to be some administrative delay in commencing the construction of the Market Yard.
Some photographs of the land produced before us, however, show that the work of construction has already been commenced.
We do not, therefore, find that there is any ground to interfere with the order of the High Court dismissing the writ petition.
The appeal fails and it is dismissed with costs.
H.S.K. Appeal dismissed.

summary:
On January 8, 1980 the respondent State issued a notification under Sec. 4 (1) of the Land Acquisition Act of 1894 for acquisition of 60 adjoining plots of land of two small villages for construction of a market yard.
The notification also contained an order of the Government made under Sec.
17(4) of the Act directing that Sec.
5A would not apply to the said proceedings.
The notification was published in the Official Gazette dated January 9, 1980.
That notification was followed by another notification dated January 9, 1980 issued under Sec. 6 of the Act.
This notification contained an order made under Sec.
17 (1) of the Act authorising the Collector to take possession of the plots.
The notification was published in the official Gazette dated January 10, 1980.
The possession of the plots was taken in course of the acquisition proceedings.
In or about June 1982 notices were issued by the Collector to the interested persons for determining the compensation payable to them.
By filing a writ petition in the High Court the appellants questioned the validity of the acquisition proceedings in regard to certain plots on the grounds that: (1) they had no knowledge of the acquisition proceedings and were prejudiced by the order made under sec.
17 (4); (2) there was no urgency sufficient in law to sustain the order made under Sec.
17 (4); and (3) Sec.
17 (4) would not be applicable because on a part of a plot of land there was a house.
The High Court dismissed the writ petition.
Hence this appeal.
Dismissing the appeal, ^ HELD: In a small place where these plots are situate, the acquisition of these lands would be the talk of the town in a shortwhile and it is difficult to believe that the appellants who are residents of that place would not have known till July 1982 that the impugned notification had 418 been published in 1980.
Any interference in this case filed after two and a half years with the acquisition proceedings is likely to cause serious public prejudice.
This appeal should, therefore, fail on the ground of delay alone.
[420G H] Appellant No. 1 claims to be the owner of plot No. 249.
On behalf of the respondents it is urged that appellant No. 1 is recorded only as a co tenure holder alongwith five others and they have not impeached the notifications.
With regard to the allegations about the existence of a house on this plot, it is seen that the said fact is denied.
The respondents rely upon some statements recorded by the revenue authorities suggesting that there was no house on this plot on the date of the notification.
This is a disputed question of fact.
Appellant No. 2 who claims to be the owner of plot No. 261 is stated to have purchased it on November 17, 1980 after the impugned notifications were published.
The title of appellant No. 3 to plot No. 133 is denied by R.K. Kannaujia, Secretary, Krishi Utpadan Mandi Samiti, Kheragarh.
In this State of affairs where there are disputed questions of facts it cannot be said that the appellants have made out any case for interference under Article 226 of the Constitution.
[421B D] There is no ground to held that the order made under section 17 (4) of the Act exempting the operation of section 5 A of the Act is bad in law even though there appears to be some administrative delay in commencing the construction of the Market Yard.
[421F G] State of Punjab vs Gurdial Singh & Ors., ; , referred to.