judgement:
Appeal No. 759 of 1957.
Appeal from the judgment and Order dated June 26, 1957, of the Bombay High Court in Appeal No, 92 of 1956.
J. C. Bhatt, section N. Andley, J. B. Dadachanji, Rameshuar Nath and.
P. L, Vohra, for the appellants.
R. Ganapathy Iyer and D. Gupta, for respondent.
February 16.
The Judgment of Gajendragadkar, Subba Rao, Wanchoo and Mudholkar, JJ., was delivered by Wanchoo, J. Sarkar, J., delivered a separate Judgment.
WANCHOO, J.
This appeal by certificate granted by the High Court of Bombay raises the constitutionality, of section 114(2) of the Bombay Industrial Relations Act, No. XI of 1947, hereinafter called the Act).
The brief facts necessary for present purposes are these.
108 The appellant is a cotton textile mill situate in Bombay.
It is said that the appellant had been continuously making losses from 1950 to 1955.
References were however made under section 73 A of the Act by the Rashtriya Mill ' Mazdoor Sangh, Bombay, in respect of disputes relating to bonus for the years 1952 and 1953, which are said to be pending before the Industrial Court, Bombay.
The ease of the appellant before the Industrial Court was that as it had made losses there was no question of its paying any bonus for the years in dispute.
It seems that at the same time there were cases relating to bonus of other mills pending before the Industrial Court and the appellant applied that its case should be dealt with separately, and this prayer was acceded to.
It seems that while the references were pending, an agreement was.
arrived at between the Mill owners ' Association, Bombay and the Rashtriya Mill Mazdoor Sangh, Bombay, with respect to payment of bonus for the years 1952 to 1957 and the agreement was to come into force with respect to each mill when it was signed by each member mill of the Mill owners ' Association.
Clause (6) of that agree ment provided for payment of bonus even where the profit made by a mill was not adequate to provide for all prior charges as per the Full Bench formula evolved by the Labour Appellate Tribunal in The Mill owners ' Association, Bombay vs The Rashtriya Mill Mazdoor Sangh (1) or even where a mill made actual loss, the minimum bonus being in either of these two cases 4 8 per cent.
of the basic wages.
earned during the year, subject to such mill being entitled to adjust the amount thus paid by it as the minimum bonus against any available surplus in any subsequent year or years under the provisions of the agreement.
This agreement was registered and was made enforceable as an award against those mills which were parties thereto.
The appellant however did not sign the agreement and therefore it was not enforced as an award by the Industrial Court against the appellant.
Thereafter the Rashtriya Mill Mazdoor Sangh wrote to the Government of Bombay requesting that the (1) 109 said award should be enforced against the appellant in exercise of the powers vested in the Government by section 114(2) of the Act.
After necessary action under section 114(2), the Government of Bombay issued a notification dated July 31, 1956, directing that the award made by the Industrial Court on March 13, 1956, for payment of bonus for the years 1952 and 1953 and also for the years 1954 to 1957 be enforced against the appellant.
This was followed by a writ petition by the appellant in the High Court challenging the constitutionality of section 114(2) and also challenging the power of the State Government to issue such a notification under that provision.
The petition was however dismissed on October 9, 1956.
There was then an appeal to a Division Bench of the High Court in which also the appellant failed.
The appellant then applied for a certificate to enable it to file an appeal to this Court, which was granted and that is how the matter has come up before us.
Two main points have been urged on behalf of the appellant before us.
In the first place, it is urged that section 114(2) is unconstitutional as it violates the fundamental rights guaranteed under article 19(1)(f) and (g) of the Constitution.
In the second place, it is urged that even if section 114(2) is constitutional, the notification has gone beyond the powers conferred on the State Government by that section and therefore the notification is bad.
We do not think it necessary for purposes of the present appeal to consider the constitutionality of section 114(2), for we have come to the conclusion that the notification is bad because it goes beyond the powers conferred on the State Government by that section.
This brings us immediately to the second point that has been urged before us and in that connection we have to consider the ambit of the power of the State Government under section 114(2).
Section.
114(2) reads as follows. "In cases in which a Representative Union is a party to a, registered agreement, or a settlement, submission or award, the State Government may, 110 after giving the parties affected an opportunity of being heard, by notification in the Official Gazette, direct that such agreement, settlement, submission or.
award shall be binding upon such other employers and employees in such industry or occupation in that local area as may be specified in the notification: Provided that before giving a direction under this section the State Government may, in such cases as it deems fit, make a reference to the Industrial Court for its opinion.
" The words of section 114(2) are very general and may at first blush be open to the interpretation that any agreement, settlement, submission or award may be extended thereunder provided it fulfills its terms.
But further consideration shows that there are two obvious limitations on the power of the State.
Government in that behalf.
The first limitation arises out of the subject matter of the agreement etc., to be extended.
Suppose the agreement etc.
deal with (lot us say) the wages of a certain type of workmen in a certain mill.
Suppose that the agreement etc., are extended to ano ther mill where that type of workmen does not exist.
Obviously the agreement cannot be extended in these circumstances and the power of the State Government is thus limited by the subject matter of the agreement etc.
The second limitation which again, is obvious arises from the provisions of law.
The proviso to section 114(2) shows that before exercising its power under the said section the Government can refer the matter to an Industrial Court and there can be no doubt that an Industrial Court cannot and will not, advise anything against the law.
Section 95 A makes the determination of any question of law in any order, decision, award or declaration passed or made, by the Full Bench of the Industrial Court under the regulations made under section 92 binding in all proceedings under the Act.
What is done under section 114(2) is also a proceeding under the Act after notice to the parties affected.
The State Government is thus bound by any decision on a question of law while proceeding under a. 114(2).
The 111 policy of the Act underlying section 95 A therefore lead,,; to the conclusion that the exercise of power conferred by section 114(2) has to be in conformity with the industrial law laid down by the Full Bench of the Industrial Court and also by any decision of this Court.
The State Government therefore when it passes an order under section 114(2) must have full regard to the law as laid down by the legislature and by the decisions of this Court and cannot pass an order under section 114(2) which is against such law.
Besides, section 114(2) places a registered agreement, a settlement, a submission and an award on the same footing and so if an award has to conform to section 95 A as it must so must the other three mentioned therein.
Therefore, when the State Government acts under section 114(2) it can only do as between the parties before it what a labour court, an Industrial Court or a wage board can in law do under the Act.
We do not think that section 114(2) authorises the State Government to act against the law as laid down by the legislature or by this Court.
Section 114(2) therefore appears to be speedy remedy (dispensing with all appeals provided under the Act) by which the State Government may direct that the terms and conditions of employment in the matter of wages, hours of work and so on may be the same in a particular industry or occupation in a particular area as may have been settled between a representative union and other employers in that area and as could if necessary be enforced through an award in a case to which the representative union was a party.
There can be no doubt however that the State Government cannot do under section 114(2) what an adjudicator has 'no power to award under the provisions of the Act.
Therefore, as we read a, 114(2) we cannot escape the conclusion that the State Government 's power to make a direction under that section is co terminus with the power of an adjudicator (be it a labour court, an Industrial Court or a wage board under the Act) to make an award thereunder, and the State Government cannot under section 114(2) do what an adjudicator cannot do under the Act.
This being the ambit of the State Government 's power in respect of giving a direction under a. 114(2), 112 let us now proceed to see whether the impugned notification is within the ambit of these powers.
By this notification the State Government has directed that the award dated March 13, 1956, made by the Industrial Court shall be binding on the appellant and its employees in the matter of payment of bonus for the years 1952 to 1957 (both inclusive).
It is not in dispute that the said award was based, on an agreement between the Mill owners ' Association, Bombay and the Rashtriya Mill Mazdoor Sangh, Bombay.
The said agreement provided that it would have to be signed by each member mill of the Mill owners ' Association before it would be binding on it and again it is not in dispute that the appellant mill though it is a member of the Mill owners ' Association never signed it.
Farther, cl.
(6) of the agreement provided for payment of minimum bonus even in cases where there was no adequate profit to provide for all prior charges as per the Full Bench formula and also in cases where a mill had made actual loss on the year 's working, subject to a proviso as to adjustment.
Thus by the direction given in the impugned notification the appellant is subjected to payment of bonus even where it has not made adequate profit to provide for all prior charges or has in fact made a loss.
The contention on behalf of the appellant is that it would not be open to an Industrial Court to grant bonus when profit was not adequate to meet all prior charges or where there was an actual loss and therefore when the impugned notification made it possible for grant of bonus even in these cases (for prima facie the appellant had made losses upto 1955), it directed something which even an Industrial Court could not do. ' In consequence, it is urged that the notification inasmuch as it makes this possible is beyond the powers conferred on the State Government under section 114(2) because it allows something to be done which even an Industrial Court could not allow.
Reliance in this connection is placed on the decision of this Court in The New Manekchowk Spinning.
Co. Ltd. and Others vs The Textile Labour Association (1).
In that case this Court was considering (1) [1961] 3 S.C.R. 113 a similar agreement relating to Ahmedabad.
The Industrial Court had imposed that agreement after its expiry for one year on the mills inspite of their contention that they were not bound to pay any bonus for the years in dispute in view of the law laid down by this Court in The Associated Cement Companies, Limited vs The Workmen (1).
After examining the terms of the agreement then in dispute this Court came to the conclusion that in view of the law laid down in The Associated Cement Companies ' case, the Industrial Court had no jurisdiction to impose that agreement on the mills.
It further held that an agreement of that kind could only continue by consent of parties.
and could not be enforced by industrial adjudication against the will of any of the parties.
The agreement in the present case directed to be enforced by the impugned notification is similar in terms and as held New Manekchowk 's case (2) it could not be enforced by industrial adjudication against the will of any of the parties.
The power of the State Government under section 114(2) being co terminus with the power of an adjudicator under the Act, such an agreement cannot therefore be directed to be enforced against the will of the appellant even under section 114(2) inasmuch as by doing so the State Government would be going beyond the powers conferred on it by that section.
The impugned notification therefore must be held to be bad inasmuch as it goes beyond the powers conferred on the State Government under section 114(2) and must therefore be struggle down.
We therefore allow the appeal with costs and setting aside the order of the High Court hold that the notification dated July 31, 1956, is beyond the powers of the State Government under section 114(2) and direct that it will not be enforced.
We should however like to make it clear that this decision will not prejudice the trial of any references with respect to bonus which may be pending or which may hereafter be made between the appellant and its employees with respect to years 1952 to 1957 (both (1) (2) ; 114 inclusive).
If such references are pending or are hereafter made they will be decided in accordance with the decision of this Court in The Associated Cement Companies ' Case SARKAR, J.
This appeal arises but of an application made by the appellants to the High Court at Bombay under article 226 of the Constitution for a writ directing the respondent, the State ' of Bombay, to forbear from acting upon or enforcing a certain notification issued by it under a. 114(2) of the Bombay Industrial Relations Act, 1946.
This order was; sought on two grounds.
The first ground was that section ll4(2) was ultra vires, illegal and void.
The second ground was that if it was not so, the notification had been issued in improper exercise of the powers conferred by that provision.
The appellants are a cotton textile mill in Greater Bombay, a local area under the Act, and its directors and shareholders.
Their application was dismissed by the High Court and hence the present appeal.
It appears that certain references were pending since 1953 and 1954 under the Act in the Industrial Court between various cotton textile mills in Greater Bombay and their employees, in respect of disputes concerning bonus for the years 1952 and 1953.
In these references the employees were represented by the Rashtriya Mill Mazdoor Sangh, a Representative Union of workmen in the cotton textile industry as defined in the Act and a union registered under it.
The appellant mill was a party to these references.
On March 1, 1956, while these references were pending, the Rashtriya Mill Mazdoor Singh entered into an agreement with the Mill Owners Association, Bombay, of which fortyseven cotton textile mills including the appellant mill, were members, regarding the bonus to be paid to the employees of these mills for the years 1952 to 1957.
This agreement was subsequently accepted individually by about fortytwo of the mills who were members of the Association and parties to the references, and became binding on these mills.
This agreement was later registered under the Act and filed in the pending references and an award was (1) 115 made by the Industrial Court on March 13, 1956, in terms of it, as between the mills who had individually accepted the agreement and their employees.
The appellant mill did not accept the agreement and no award was made in the references concerning it and so far as it was concerned, the references remained pending.
On July 31, 1956, the respondent made the order which is challenged in these proceedings.
That order was in these terms: "Whereas the.
Rashtriya Mill Mazdoor Sangh, Bombay. .is a party to an award dated the 13th March 1956 And whereas the Government of Bombay, con siders that the award should be made binding upon the employers specified in column 1 of the schedule hereto annexed and their employees And whereas the said employers and the Rash triya Mill Mazdoor Sangh, Bombay, representing the said employees being the parties affected were heard Now, therefore, in exercise of the powers conferred by sub section (2) of section 114 of the said Act, the Government of Bombay hereby directs that the said award shall be binding on the employers specified in column 1 of the schedule hereto annexed and their employees in the matter of payment of bonus for the years specified against the employers in column 2 of the said schedule.
" The appellant mill was one of the employers men.
tioned in the schedule to the notification and the schedule further provided that the award would be binding on the appellant mill and its employees for the years 1952 to 1957, both inclusive.
As a result of this notification the appellant mill became liable to pay bonus to its employees for the. years mentioned, in terms of the award based on the agreement, to neither of which it was a party.
The appellants contend that the appellant mill is not liable to pay bonus in law as laid down by this Courtin Muir Mills Co. Ltd. vs Suti Mills Mazdoor Union (1) and by the Full Bench (1) ; 116 of the Labour Appellate Tribunal, in Mill Owners ' Association, Bombay vs Rashtreeya Mills Mazdoor Sangh (1) as it has not made any profit for the period commencing from June 30, 1950, and ending on June 30,1955.
The agreement on which the award was based, adopted a formula for ascertaining the available surplus of the profits of an employer and provided for payment of certain bonus out of it.
This bonus, I gather, would have been of a smaller amount than that payable under the formula laid down in the cases mentioned earlier.
The appellants have no complaint against this Part of the agreement for, presumably, under it, they would not be liable to pay any bonus at all.
What they object to is el.
6 of the ' agreement.
This clause in substance provided that when no avai.
lable surplus was found to exist according to the for mula or even when a mill had incurred loss in a particular year, it would have to pay its employees "a minimum bonus equivalent to 4.8 per cent of the basic wages earned by them during the year", with a right to recoup the bonus so paid, out of the bonus that would be payable under the agreement in subsequent years and out of the residue of the surplus profits then remaining, it would have to pay bonus in terms of the agreement.
The substance of the appellants ' grie vance against the notification is that under it the appellant mill has to pay bonus in terms of cl. 6 of the agreement even though it has been working at a loss.
The first question is whether section 114(2) is invalid and illegal.
That section so far as is material is in these terms: "section 114 (1).
A registered agreement or a settlement, submission or award shall be binding upon all per.
sons who are parties thereto: (2) In cases in which a Representative Union is a party to a registered agreement, or a settlement, submission or award, the State Government may, after giving the parties affected an opportunity of (1) 117 being heard, by notification in the Official Gazette, direct that such agreement, settlement, submission or award shall be binding on such other employers or employees in such industry or occupation in that local area as may be specified in the notification.
" The appellants first challenge the validity of the .section on the ground that it offends article 14 of the Constitution.
It is said that it gives an unguided and arbitrary power to the State Government to discriminate between various sets of employers and employees and make an order on any one set at its pleasure leaving out others.
It seems to me that this contention is not well founded.
The power given by the provision is not, in my view, uncontrolled.
The object of the Act clearly is the settlement of industrial disputes and attainment of industrial peace.
Furthermore, under the section the order can be made on employerS and employees in a local area which again is a limitation of the power.
Now, a local area is an area notified as such for the purposes of the Act: see section 2(23).
The object of this pro vision as to local areas is to divide the State into several areas for better maintenance of industrial peace and to group together for that purpose, the industries in a region.
If conditions of labour in any area where a large number of workmen is collected, are uniform, then there is less likely to be disaffection among them whereas if such conditions are not the same, the workmen are likely to become restive.
It is well known that regional considerations are closely connected with industrial disputes and are of importance for their settlement.
The local area contemplated by section 114(2) is obviously the area in respect of which the Representative Union mentioned in it has been registered.
No reference can be found in the section to any other local area.
Under section 2(33) a Representative Union means a union registered as such under the Act and under section 13(1) a Representative Union is a union which has a membership of not less than fifteen per cent.
of the employees in any industry in any local area and registered for that industry in the area.
118 The agreement, settlement, submission or award mentioned in the section has to be one to which a Representative Union is a party.
It follows from this that a substantial body of workmen in an area has come to a decision or become bound by an award as to a question or questions affecting them.
Therefore, the power under the section can be exercised only for achieving industrial peace in that area.
It is not unlikely when a substantial section of workmen congregated in an area have secured certain rights that the other employees in that area may claim similar rights and this may disturb industrial peace in that area.
The power can be exercised only for meeting such disturbance and only in the local area where it occurs.
There are therefore two guiding principles.
First, the power can be exercised only to prevent breach of industrial peace.
Secondly, it can be exercised only in a specified area if there is a threat to industrial peace there.
An exercise of the power outside the area and for purposes other than maintenance of industrial peace, would be beyond the scope of the section.
Again, once there is occasion for legitimate exercise of the power and it is exercised, it must be exercised in all units of the industry in that local area in which units the threat to the industrial peace exists if that would restore the peace.
It would be open to the Courts to correct a discriminatory use of the power or its use outside the scope of the section.
Therefore it does not seem to me that the section confers unguided and arbitrary power.
is of some interest to state that in the present case there has been no such discriminatory use of the power or any use outside the section.
The respondent has made the award binding on all the remaining mills who had not accepted the agreement and there is evidence that there was: threat of breach of industrial peace in these mills.
Then also, I find that the section has conferred the power on the highest authority, namely, the Government itself.
That would be some guarantee that it would be duly exercised.
This is a further reason for 119 holding that the section does not confer absolute and arbitrary Power.
The next objection to the section is that it offends article 19(1)(g) in that it puts an unreasonable restriction on a person 's right to carry on business.
This contention also is unacceptable to me.
There is no doubt that the section puts certain restrictions on a person 's right to carry (in an occupation or business.
The real question is whether the restrictions have been put in the interest of the general public and are reasonable.
That the restrictions have been put in the interest of the general public seems to me to be unquestionable.
The reason why the restrictions have been put is that otherwise, industrial peace would be disturbed.
The entire country is interested in industries and, therefore, in industrial peace.
This point requires no elaboration.
, Then, are the restrictions put, reasonable? It seems to me that they are.
The restrictions are that an agreement; settlement, award or submission all of ,Which of course must be concerning industrial disputes to which a person is not a party is made binding on him.
By an "agreement", the parties to an industrial dispute settle it themselves.
A "settlement" means a settlement of an industrial dispute arrived at with the assistance of a conciliator in the course of conciliation proceedings under the provisions of the Act.
A "submission" is a reference of an industrial dispute to arbitration.
An "award" is an adjudication on an industrial dispute by the court constituted under the Act.
An agreement, a settlement or a submission is the result of the free consent of the parties to the dispute.
As earlier stated, the section only applies to an agreement, settlement or submission to which a Representative Union, which is a union representing a substantial number of workmen, is a party.
Therefore, the section can apply to an agreement, settlement or submission which a substantial number of workmen and an employer has, of their free choice, accepted.
It would follow that such an agreement, settlement or submission has been considered reasonable by parties 120 interested and in the case of a settlement by the con ciliator appointed under the Act also.
The restrictions imposed by any of these must therefore be reasonable.
An award, on the other hand, is a decision of a court and can, therefore, always be expected to be reasonable.
If certain restrictions are reasonable for an employer and his employees, I suppose it would follow that those restrictions would be equally reasonable for other employers and employees and more so, when they are all in the same neighborhood where the conditions are likely to be more or less the same.
Therefore, it seems to me that the restrictions imposed by section 114(2) cannot be said to be unreasonable.
I have earlier summarised the offending part of the agreement.
I do not think that there is anything unreasonable there.
The employer pays only 4.8 per cent of the basic wage in the year when he makes no profit with a right to recoup it in a subsequent and more prosperous year.
The maximum that he has to pay as bonus in the best year is, I gather, less than what he would have to pay under.
the formula regarding bonus laid down by this Court.
The agreement extends over 6 years and it would not be unreasonable to suppose that during_ these years profits might be made to wipe off the minimum bonus paid in a lean year.
The restrictions put by the present agreement are, therefore,, in my view quite reasonable.
It may be that in individual cases, which are not likely to be many, the restrictions may work hardship.
But that would not justify a conclusion that section 114(2) itself imposes unreasonable restrictions on a man 's right to carry on his business or occupation.
This view was taken by this Court in Bijay Cotton Mills vs The, State, of Ajmer (1), where it was said in respect of the ; "Individual employers might find it difficult to carry on the business on the basis of the minimum wages fixed under the Act but this must be due entirely to the economic conditions of these particular employers.
That cannot be a reason for the striking down the law itself as unreasonable." (1). [1955] 1 S.C.R. 752, 755 6. 121 Another ground on which the validity of the section was challenged was that it prevented a party from having an industrial dispute decided by an Industrial Court under the Act.
But I do not see that there is an inherent right in a party to an industrial dispute to have it decided by an Industrial, Court under the Act.
The right to ask for an adjudication by an Industrial Court is itself created by the Act.
What the Act has given, it can clearly restrict or take away in any manner it thinks fit.
The provisions of the Act must be read together and in cases in which power under section 114(2) has.
been exercised, the right to ask for an adjudication by an Industrial Court must be considered either as taken away or unavailing.
I thus come to the conclusion that the section is not invalid for any of the reasons mentioned.
I also feel no doubt that the section was quite within the legislative competence of the legislature which passed it.
I did not understand the learned counsel for the appellants to contend to the contrary.
I have mentioned the legislative competence only to dispose of another argument which also, I think, was aimed at the validity of the section.
It was said that there is no power anywhere to provide for payment of bonus where in law such bonus is not payable.
This argu ment is founded on the decision of this Court in the Muir Mills case (1) where it had been said that no bonus is payable where no profit has been made.
Therefore it is said that the section authorises payment of bonus where none is payable in law.
This argument seems to me to be misconceived.
If the section is legislatively competent and otherwise valid, as I think it is, then it cannot be invalid for the simple reason that it directs payment of bonus where, as held by this Court, as a matter of adjudication, none would be payable in law.
The law laid down by this Court is only for application when the question comes up for adjudication by a court bound by that law.
It has no relevance, in deciding the validity of an otherwise competent law.
The law laid down by any Court cannot take away legislative competence.
The (1) ; 122 enactment in question has left the law laid down by this Court quite unaffected; it will still apply in all cases where it is applicable.
Now I proceed to consider the validity of the notification.
As I understood the learned counsel for the appellants, he put his case on two grounds.
He first said that the notification was invalid as it was made while a reference was pending in an Industrial Court.
The reasoning is that it is invalid as it takes away the jurisdiction of that Court to decide the pending reference.
I think what I have earlier said is a sufficient answer to this contention.
The right to have the pending reference proceeded with was given by the Act.
There is nothing to prevent that Act or any other, from providing that the pending reference shall be discontinued or become infructuous.
If a notification could be made under the section, as the present argument assumes it could be, then as to when it could be made, would certainly depend on the terms of the statute.
I find nothing in the Act to show that a notification could not be made while a reference was pending and so as to render it 'abortive.
Therefore I think that no exception can be taken to the notification in the present case for the reason that it was issued while the reference was pending.
The other challenge to the notification does not appear to have been raised in the High Court.
It was based on section 95A of the Act which is in these terms: section .95A.
The determination of any question of law in any order, decision, award or declaration passed or made, by the Full Bench of the Industrial Court, constituted under the regulations made under section 92, shall be recognised as binding and shall be followed.
in all proceedings under this Act.
It is said that the Government in issuing a notification under section 114(2) was, in view of section 95A, bound by the decisions of the Full Bench but in issuing the present notification, it ignored a decision of the Full Bench which provided that no bonus would be payable by an employer where he had made no profits.
Therefore it is contended that the notification is invalid.
I am unable to accept this argument.
I will assume 123 that there is Full Bench decision of the kind mentioned.
It is also true that the effect of the notification is to make the appellant mill pay bonus for a year when it had made no profit.
All this, however, to my mind makes no difference for, though in issuing a notification under section 114(2) the respondent has to give the parties sought to be affected by it a hearing, there is really no proceeding held within the meaning of section 95 A in connection with the issue of the notification.
All that section 95A does is to make "the determination of any question of law" by the Full Bench binding in certain proceedings.
In order that determination of a question of law may be binding in another proceeding, that proceeding must raise the same question for, a determination of one question of law cannot be binding on another question.
Now what is the question when a notification is intended to be issued under is.
114(2)? The only question is whether it is necessary for preserving industrial peace in a locality that a certain agreement, settlement, submission or award should be made binding on persons who are not parties to it.
Such a question would not be a question of law at all; it would not be a question which could ever have arisen before the Full Bench.
It would follow that no occasion of being bound by a determination of a question of law by the Full Bench can ever arise when the Government is considering whether a notification under section 114(2) should be issued.
It may be that the result of a notification made under section 114(2) is to create a liability, for example, to pay bonus.
The question of law as to the liability to pay bonus may have been decided by the Full Bench.
That however cannot make the question arising under section 114(2) a question whether in law bonus is payable.
The questions remain essentially different.
Therefore, it seems to me, that section 114(2) does not contemplate a proceeding of the nature conceived by section 95A.
Then I find that section 95A occurs in Chapter XIII of the Act which is concerned with Industrial Courts.
It appears from the provisions of this chapter that the Industrial Court is the highest Court contemplated by 124 the Act.
Under section 92 it has power to provide by regulations made by it that it will sit in Benches consisting of more than one person.
Obviously it is intended that when a question of importance and difficulty arises, the Court will sit in a larger Bench.
Section 95A appears, therefore, to have been enacted for the purpose that other courts acting under the Act should follow the decisions of the Full Bench so that there might be uniformity of law.
It was not intended to have any application to the issue of a notification under is.
114(2).
It also seems to me that if in issuing a notification under section 114(2) the Government were to be bound by the decisions of the Full Bench, then that section would be rendered almost completely infructuous.
The question whether in view of section 95A, in issuing a notification under section 114(2) the Government is bound to follow the decisions of the Full Bench can arise only if section 114(2) is valid.
If section 114(2) is valid, an interpretation of a. 95A which renders it infructuous cannot be correct.
The sections of a statute must be so interpreted as not to affect the operation of one another.
Let me take the case of an agreement concerning bonus between employer A and his employees.
Now there is nothing in law to prevent an employer and his employees from making any agreement they like as to bonus.
They may agree that bonus would he paid at a certain rate even when the employer has not made any profit.
That would be a perfectly valid agreement.
The agreement that was made in this case was of that kind.
It has not been suggested that the agreement was invalid.
Indeed, the fact that it was filed in the pending references and an award was made in terms of it would put it beyond doubt that it was unexceptionable for, the award was made in terms of the agreement as required by section 115A and it could not have been so made unless the agreement was in all respects valid.
The Act therefore contemplates an agreement of this kind.
If the argument of the learned counsel for the appellants is right, this agreement cannot be made 125 binding between B and his employees.
Now, first, section 114(2) does not say that the agreement contemplated by it must comply with all decisions of the Full Bench.
I find no justification for adding to the word "agreement" in section 114(2) the words "provided it is in compliance with decisions of the Full Bench".
Secondly, common experience would show that when; disputants settle their disputes themselves by an agreement, they rarely, if ever, make the agreement strictly in terms of their legal 'rights; they, as it is said, give and take and adjust matters in their own way.
So cases would be rare where the parties make ' the agreement strictly in terms of the law laid down ' by the Full Bench.
Thus if the contention of the appellants is right, there would practically be no agreement to which section 114(2) would apply.
Now, what is the law that can be laid down by the Full Bench regarding right to bonus? It can Only be general principles as to when it is to be payable and if payable, how the amount of it is to be calculated.
This is what this Court did in the Muir Mills Case (1) and the subsequent cases regarding bonus.
The actual award of bonus by the Full Bench on the facts of the case before it, would of course not be a determination of a question of law.
Suppose now that the agreement between A and his employees was in compliance with the Full Bench decision.
That agreement must therefore only provide that bonus of a certain amount would be paid in certain years.
I do not find it possible to conceive of an agreement concerning bonus made after the Full Bench decision, which does not provide for the amount of the bonus to be paid but ,only lays down the formula for calculating what is to be paid, for, the formula is in the Full Bench decision and does not require to be laid down afresh.
That agreement would be an agreement in compliance with the Full Bench decision.
Suppose such an agreement provides for payment of a month 's wage,% as bonus.
Now this agreement is to be made binding on B and his employees.
If the argument that it can be made so binding only if as a result, B is not made to pay (1). [1955] 1 S.C.R. 991.
126 anything more than what he would have to pay under he Full Bench decision itself, is right then, it seems to be that the only case in which the agreement can be made so binding will be that in which the figures for example, of income, expenses, rehabilitation and a host of other things on which according to the Full Bench decision the bonus is to be calculated, are in the case of B absolutely identical with those in the case of A.
If the figures were not so identical, then in the case of B, a month 's wages may be too large a bonus according to the Full Bench decision, though it La just right in the case of A.
I do not think that such identity would ever exist.
I think it right to point out here that under section 114(2) only the agreement as made can be extended to become binding on others.
There is no power under it to alter the agreement in any way and then make it binding.
What I have said so far concerning agreements would apply equally to settlements.
Therefore, again almost all agreements made in terms of the Full Bench decision would also be taken out of the operation of section 114(2).
Then I take the case of an award.
An award is a decision of a court adjudicating upon an industrial dispute under the Act.
I do not consider now an award based on an agreement for such an award would in substance be an agreement and with agreements, I have already dealt.
I will, therefore, take an award passed as a matter of adjudication.
I should suppose that such an award would be in accordance with the law as decided by the Full Bench for the decision of the Full Bench would be binding on the court passing the award in view of a. 95A.
As stated in connection with agreements such an award would only decide how much bonus, assuming the dispute to be concerning bonus, would have to be paid; it would not be laying down any general principle for calculating bonus for, ex hypothesis those principles have already been laid down by the Full Bench.
Here again, as in the case of agreements and for the same reason, if the argument for the appellants is right, the award can be made binding on employers not parties to it only when the relevant figures in the case if both the employers, 127 namely, the one who is a party to the award and also the other on whom the award is sought to be made binding, are identical.
I conceive, such identity would never exist.
As regards submissions, I am unable to see how section 95A can have any application at all.
Submissions are defined in section 66 of the Act which, so far as material, provides, that "Any employer and a Representative Union may, by a written agreement, agree to submit any present or future industrial dispute to . . arbitration Such agreement shall be called a submission.
" It does not appear to me to be conceivable that the Full Bench could ever have decided whether such a submission shall be made or not.
The making of a submission involves no question of law.
It can be made only in respect of industrial disputes.
Section 66 gives the parties concerned the right to make it.
Clearly, when a submission by A and his employees is sought to be made binding on B and his employees, there can be no question of compliance with any Full Bench decision.
It would, therefore, appear that section 114(2) would become almost wholly infructuous if a notification under it could be issued only where the effect of that would not be to produce a result which is not in compliance with Full Bench decisions.
It also strikes me that if in issuing the notification, the Government had to follow the Full Bench decisions, then the issue of that notification would really become an adjudication, the Government taking the place of the Industrial Court.
The very same questions would then arise as would have arisen if the matter had to be decided by an Industrial Court.
I am unable to hold that the inten tion was to make the Government itself an Industrial Court.
If an adjudication by a court was necessary then the Industrial Court was already there and there was no need to put the duty of adjudication on the Government.
For all these reasons I do not think that in issuing a notification under section 114(2) any question of complying with any Full Bench decision arises.
In my view, 128 the issue of the notification is not a proceeding as contemplated by section 95A.
Lastly, it was contended that the notification under the section had been issued mala fide.
The only reason for this contention was that the object of such issue was to get round the decision of this Court in Muir Mills case (1).
It is true that one of the reasons why the Rashtriya Mill Mazdoor Sangh wanted the notification to be issued was that it wanted to find a "way out of the situation arising as a result of the decision of the Supreme Court in Muir Mills case (1)".
But I am not able to agree that makes the notification mala fide.
Apart from the fact that the Sangh felt that the decision had not helped the industry or the workmen, which feeling I have no reason to doubt was perfectly honest, I am unable to see bow, if it is legally permissible under the statute to do a thing the result of which would be to get round a decision of this Court, the doing of it can be said to be mala fide.
The Act directly permits and contemplates a notification which would produce a result in variance with a decision of this Court.
There has been no misuse of the Act at all.
As I have earlier stated, in the case of bonus the effect of a notification under section 114(2) would almost always be to permit something which is not permitted under the rule laid down in the Muir Mills case (1).
That being so, a notification duly issued under the section cannot be said to have been issued mala fide.
For all these reasons, in my view, the Act is not invalid and the notification of July 31, 1956, is unobjectionable and cannot be set aside.
I would, therefore, dismiss the appeal with costs.
By COURT: In accordance with the majority judgment, the order of the High Court is set aside and the appeal is allowed with costs.
Appeal allowed.

summary:
The disputes regarding bonus to be paid to the ' workmen of the appellant mill and other cotton textile mills in Greater Bombay for the year 1952 and 1953 were referred to the Industrial Court under the provisions of the Bombay Industrial Relations Act, 1946, and while the references were pending, an agreement was arrived at between the Mill owners ' Association, Bombay, and the Rashtriya Mills Mazdoor Sangh, a Representative Union of workmen in the cotton textile industry with respect, to payment of bonus for the years 1952 to 1957, providing inter alia for payment of bonus even where a mill made actual loss, the minimum bonus being 4.8 per cent.
, of the basic wages earned during the year, subject to such mill being entitled to adjust the amount thus paid by it as the minimum bonus against any available surplus in any subsequent year or years.
This agreement was registered and was made enforceable as an award (1) L.L.R. (2) A.I.R. 1937 Mad.
763. 106 against those mills which were parties thereto.
The appellant; however, did not sign, the agreement, and its case before the Industrial Court was that it had been continuously making losses from 1950 to 1955.
On July 31, 1956, the Government of Bombay issued a notification under section 114(2) Of the Act directing that the award made by the Industrial Court aforesaid, for payment of bonus for the years 1952 and 1953 and also for the years 1954 to 1957 be enforced against the appellant.
The appellant challenged the validity of section 114 on the grounds (1) that it offended article 14 Of the Constitution inasmuch as it gave an unguided and arbitrary power to the State Government to discriminate between various sets of employers and employees and make an order on any one set at its pleasure leaving out others, (2) that it offended article 19(i)(g) in that it put an unrea sonable restriction on a person 's right to carry on business, and (3) that it prevented a party from having an industrial dispute decided by an Industrial Court under the Act.
In any event, the appellant contended that the notification was bad, because (a) it was made while a reference was pending in an Industrial Court and, therefore, took away the jurisdiction of, that Court to decide the pending references and (b) the notification went beyond the powers conferred on the State Government by section 114 since under that section the Government was bound by the decisions of the Full Bench in view of section 95A, but in the present case it ignored a decision of the Full Bench which provided that no bonus would be payable by an employer where it had made no profits.
Held (Sarkar, j., dissenting), that the notification dated July 31, 1956, was beyond the powers conferred on the State Government under section 114(2) Of the Bombay Industrial Relations Act, 1946, and must, therefore, be struck down, There are three limitations on.
the power of the State Government when acting under section 114(2): (1) that it is limited by the subject matter of the agreements, or settlement, submission or award sought to be extended, (2) that it has to be in conformity with the industrial law laid down by the Full Bench of the Industrial Court and also by any decision of the Supreme Court, and (3) that the State Government 's power to make a direction under that section is co terminus with the power of an adjudicator and the State cannot do 'what an 'adjudicator cannot do under the Act.
Action taken by the State Government under section 114(2) is a proceeding under the Act within the meaning Of section 95A of the Act.
The New Maneckchowk Spining Co. Ltd. and others vs The Textile Labouy Association, [1961] 3 S.C.R. I, relied on.
Per Sarkar, J. (1) Section 114 of the Bombay Industrial Relations Act, 1946, does not offend article 14 Of the Constitution.
The object of the Act is the settlement of industrial disputes and 107 attainment of industrial peace and the section does not confer absolute and arbitrary power.
(2) The restrictions imposed by section 114(2) are reasonable and have been put in the interest of the general public.
Consequently, the section does not contravene article 19(i)(g).
Bijay Cotton Mills Ltd. vs The State of Ajmer, ; , referred to.
(3) The provisions of the Act must be read together and in cases in which power under section 114(2): has been exercised, the right to ask for an adjudication by an Industrial Court must be considered either as taken away or unavailing.
(4) The issue of a notification under section 114(2) is not a proceeding as contemplated by section 95A and, therefore, any question of complying with any Full Bench decision does not arise.
(5) Section 114 directly permits and contemplates a notification which would produce a result in variance with a decision of the Supreme Court and, therefore, a notification duly issued under that section cannot be said to have been issued, mala fide.
Muir Mills Co. Ltd. vs Suti Mills Mazdoor Union, Kanpur, ; , referred to.
(6) The Act is not invalid and the notification of July 31, 1956, is unobjectionable and cannot be set aside.


judgement:
Appeals .
101 to 104 of 1957.
Appeals from the judgment and order dated February 4, 1954, of the Mysore High Court in Regular, Second Appeals Nos. 5 and 6 of 1953 and Writ Petitions Nos. 67 and 68 of 1953 respectively.
H. N. Sanyal, Additional Solicitor General of India, R.Ganapathy Iyer and D. Gupta for the appellant.
A. V. Visv)anatha Sastri, M. section K. Sastri and ' T. R. V. Sastri for A. G. Ratnaparkhi, for the respondents.
February 20.
The Judgment of the Court was delivered by WANCHOO, J.
These are four appeals on certificates granted by the Mysore High Court.
They will be disposed of together as the. points raised in them are common.
The facts of these cases are complicated and may be mentioned in some detail.
On July 7, 1949, the then State 'of Mysore passed The Mysore Administration of Evacuee Property (Emergency) Act, No. XLVII of 1949 (hereinafter called the.
first Mysore Act).
It provided for the appointment of a Custodian of Evacuee Property for the State of Mysore and other officers subordinate to him for the purpose of administering evacuee property in that 858 State.
Section 2(c) defined an " evacuee " and section 2(d) evacuee property ".
Section 5 laid down that all evacuee property situate in Mysore would vest in the custodian.
Section 6 provided for a notification by the Custodian in the Mysore Gazette of evacuee property vested in him.
Section 8 provided that any person claiming any right to or interest in any property notified under section 6 as evacuee property or in respect of which a demand requiring a surrender of possession had been made by the Custodian might arefer a claim to the Custodian on the ground that he property was not evacuee property or his interest in the property had not been affected by the provisions of that Act.
It was further provided that the Custodian was, to hold a summary inquiry in the prescribed manner into such claims and after taking such evidence as might be produced, pass an order stating the reasons there for) either rejecting the claim :or allowing it wholly or in part.
Finally, section 30 provided for an appeal to the High Court where the original order under section 8 had been passed by the Custodian, an Additional Custodian or an Authorised Deputy Custodian.
This Act remained in force till it was replaced by the Mysore Administration of Evacuee Property (Second) (Emergency) Act, No. LXXIV of 1949 (hereinafter called the second Mysore Act), which came into force on November 29, 1949.
On September 21, 1949, the Custodian issued a notification by which he declared the properties.
of the two respondents as evacuee properties which had vested in him, as the, respondents had become evacuees.
Thereupon two claims were filed under section 8 of the first Mysore Act separately by the two respondents.
These claims were investigated by the Deputy Custodian who dismissed the same on April 17, 1950, declaring that the, properties were evacuee properties.
, It may be mentioned that in the meantime, the second Mysore Act had come into force by which the first Mysore Act was repealed.
But section 53(2) of the second Mysore Act provided, that anything done or any action taken.
in the exercise of any power conferred by the first Mysore Act shall be deemed to have been done 859 or taken in the exercise of the powers conferred by the second Mysore Act.
It was also provided that any penalty incurred or proceeding commenced under the first Mysore Act shall be deemed to be a penalty incurred or proceeding commenced under the second Mysore Act as if the latter Act were in force on the day on which such thing was done, action taken, penalty incurred or proceeding commenced.
There was how.
ever one difference in the two Mysore Acts.
The first Mysore Act had provided by section 5 for the vesting of all evacuee property situate in Mysore ipso facto in the Custodian; section 6 then provided for notification by the Custodian and section 8 for preferring claims.
The second Mysore Act however made a departure from this and section 5 thereof provided that " a where the Custodian is of opinion that any property is evacuee property within the meaning of this Act he may, after causing notice thereof to be given in such manner as may be prescribed to the persons interested, and after holding such inquiry into the matter as the circumstances of the case permit, pass an order declaring any such property to be evacuee property.
" Section 6 then provided for vesting of any property declared to be evacuee property in the Custodian.
Thus while under the first Mysore Act the evacuee property vested in the Custodian and the person who claimed that it was not evacuee property had to make an application under section 8 and to get it declared that it was not evacuee property, under the second Mysore Act there was no vesting in the Custodian and the Custodian had to give a notice in the manner prescribed (if he thought any property to be evacuee property) and after hearing the persons interested to declare the property to be evacuee property; and it was only thereafter that the property vested in him as evacuee property.
Further, the second Mysore Act also defined the " Custodian General " as the Custodian General of Evacuee Property in India appointed by the Government of India under section 5 of the Administration of Evacuee Property Ordinance (Central Ordinance No, XXVII of 1049), which had come 860 into force on October 18, 1949.
Further there was a change in the forum of appeals and instead of the High Court the appeal lay to the Custodian General from an order passed under section 5 of the second Mysore Act where the original order had been passed by the 'Custodian, Additional Custodian or Authorised Deputy Custodian and in some cases to the District Judge designated in this behalf by the Government under sections 22 and 23 of the second Mysore Act.
In addition, provision was made by section 25 of the second Mysore Act for revision by the Custodian General of orders passed by the District Judge or the Custodian on appeal.
It may be mentioned that the , No. XXXI of 1950 (hereinafter called the Act), came into force on the day the Deputy Custodian passed the order dated April 17, 1950.
It may also be mentioned that in the meantime the Constitution of India had come into force on January 26, 1950, and the former State of Mysore had become the new Part B State of Mysore under the Constitution.
The Act was to apply to the whole of India except the States of Assam, West Bengal, Tripura, Manipur and Jammu and Kashmir.
Thus the Act applied to the Part B State of Mysore on April 17, 1950, and though there was no specific provision then in the Act repealing the second Mysore Act it is not seriously disputed that the Act by necessary implication repealed the second Mysore Act, as the Act substantially enacted all that was contained in the second Mysore Act.
However that may be, appeals were filed against the order of April 17, 1950, before the Custodian.
These appeals were allowed on August 22, 1950.
The Custodian held that there was not sufficient evidence to prove the respondents as evacuees and consequently the properties in question could not be treated as evacuee properties.
On October 3,1950, the Custodian General gave notices to the respondents under section 27 of the Act in respect of the order of the: Custodian dated August 22, 1950, and asked them to show cause why '; the said order of the Custodian be not revised, On December 7, 1950, the Administration of Evacuee 861 Property (Amendment) Act, No. LXVI of 1950, was passed by which inter alia section 58 of the Act was amended and it was provided that if immediately before the.
commencement of the Act there was in force in any State to which the Act extended any law which corresponded to the Act and which was not repealed by, sub section
(1) it shall stand repealed.
This was made retrospective from the date from which the Act came into force (namely, April 17, 1950) and so the repeal of evacuee property laws which were in force in those States to which the Act applied which was implicit in it was made explicit from December 7, 1950, so that frum April 17, 1950, only the Act held the field.
On February 11, 1952, the Custodian General set aside the order of the Custodian dated August 22, 1950, and ordered that further proceedings in these cases should be taken before the Custodian as an original matter and be was directed to dispose of the cases afresh in the light of the evidence already recorded and such other evidence as might be produced before him by the two respondents.
When the matter thus came back to the Custodian he ordered the Deputy Custodian on April 7, 1952, to record the evidence and then submit the record to him for final disposal.
Eventually, the matter came before the Custodian for final disposal on December 2, 1952.
He held that the two respondents were evacuees and their properties were evacuee properties.
This was followed by two appeals to the High Court on January 2, 1953.
As, however, the respondents felt some doubt whether any appeal lay to the High Court two writ petitions were also filed on September 7, 1953, against the order of the Custodian.
The two appeals as well as the two writ petitions were disposed of by the High Court by a common judgment on February 4, 1954.
The High Court held that the appeals before it were competent.
It further seems to have 'held that the CustodianGeneral had no power under section 27 of the Act to revise the order passed by the Custodian on August 22,1950.
Finally, as the High Court held that the appeals were competent it went into the matter as an appellate court and came to the conclusion that the order of the 862 Custodian dated December 2, 1952, was erroneous.
It, therefore, allowed the appeals as well as the writ petitions and set aside the order of the Custodian dated December 2, 1952, and restored the earlier order of the Custodian dated August 22, 1950.
Thereupon "followed applications by the Custodian of Evacuee Property, Mysore, for certificates to file appeals to this Court on which the High Court granted the certificates, and that is how the four appeals have come up before us.
The main contention of the learned Additional Solicitor General on behalf of the appellant is two.
He urges firstly that the High Court was in error when it held that the Custodian General had no power to set aside the order of August 22, 1950, under section 27 of the Act.
In the second place, his contention is that the High Court was in error in holding that an appeal lay to it from the order of the Custodian dated December 2, 1952.
Therefore, the High Court could not deal with the matter before it as if it were hearing an appeal; it could only consider the writ petitions before it and in doing so it would not be justified in issuing a writ of certiorari against the order of December 2, 1952, because that order was not passed without jurisdiction and there was no error of law apparent on the face of the record to call for interference with it.
Mr. Sastri for the respondents In reply submits that as the proceedings in these oases began under a. 8 of the first Mysore Act and as there was nothing corresponding to that section either in the second Mysore Act or in the Act, which replaced successively the first Mysore Act, the High Court was entitled to hear an appeal from the order of Decem ber 2, 1952, as that order must be held to have be On passed in a proceeding under the first Mysore Act, even if it be that the Custodian General had the jurisdiction to set aside the order of August 22, 1960 under section 27 of the Act.
Further, Mr. Sastri contends that the Custodian General had no jurisdiction to set aside the order of August 22, 1960, under section 27 of the Act.
863 The first point therefore which falls for consideration is whether the Custodian General had jurisdiction to set aside the order of August 22,1950, under section 27; for if he had no such jurisdiction the High Court may be entitled after holding that the Custodian General 's order of February 11, 1952, was without jurisdiction, to set aside all subsequent proceedings, leaving:the order of August 22, 1950, operative and in full force (assuming for this purpose that the High.
Court had jurisdiction in writ proceedings to set aside the order of the Custodian General whose headquarters were in New Delhi).
Now the first Mysore Act had no provision relating to the Custodian General.
It was the second Mysore Act which for the first time brought in the CustodianGeneral and gave him powers of revision under section 25 with respect to orders passed by the Custodian or the District Judge in.
appeal.
Then came the Act on April 17, 1950, by which the Custodian General was given the power to call for the record of any procee in which any District Judge or Custodian had passed an order for the purpose of satisfying himself as to the legality or propriety of any such order and to pass such order in relation thereto as he thought fit.
This provision is wider than the provision in the second Mysore Act and is not confined to orders passed by a District Judge or a Custodian in appeal and would apply even to original orders passed by the Custodian, which term, according to the definition in section 2(c) includes any Additional, Deputy or Assistant Custodian of evacuee property.
We have already pointed out that the Act provides substantially for all ,matters contained in the second Mysore Act and therefore must be held to have repealed the second Mysore Act by implication.
but in any case the question whether the second Mysore Act was repealed by the Act when it came into force on April 17, 1950, I" been set at rest by the later Central Act, LXVI of 1950.
That Act was passed on December 7, 1950, and 2 thereof began thus: "For section 58 of the, , the following section shall be 864 substituted.
and shall be deemed always to have been substituted.
" This clearly shows that Central Act LXVI was amending section 58 retrospectively from the date on which it came into force (namely, April 17, 1950).
The new section 58 which was thus substituted in the Act from April 17, 1950, contained sub section
(2) which is as follows: " If, immediately before the commencement of this Act, there is in force in any State to which this Act extends any law which corresponds to this Act and which is not repealed by sub section (1), that corresponding law shall stand repealed.
" It is clear therefore that the second Mysore Act was expressly repealed as from April 17, 1950, by the Act in view of this substituted section 58 put into it retrospectively by Act LXVI, for the second Mysore Act was undoubtedly a law corresponding to the Act.
The High Court seems to have overlooked the fact that Act LXVI gave retrospective operation to the new section 58(2) which was inserted in the Act.
It seems to think that the second Mysore Act was repealed on December 7, 1950, when Act LXVI came into force.
The High Court was further in error in holding that the amended sub section (3) of section 58 which was put into the Act also came into force from December 7, 1950, while as matter of fact it came into force from April 17, 1950, when the Act itself first came into force.
The position when the Custodian General gave notice in October, 1950, under section 27 of the Act therefore was that the first Mysore Act had already been re. 'pealed by the second Mysore Act and the second Mysore Act had been repealed by the Act as from April 17, 1950, and therefore in October, 1960, only the Act held the field.
The question then arises whether it was open to the Custodian General to revise the order dated August 22, 1950, under section 27 of the Act in February, 1952.
Now section 27 is very wide in terms and gives power to the Custodian General at any.
time either on his own motion or on application made to him in this behalf.
, to call for the record of any proceeding in which any District Judge or Custodian 865 has passed an order for the purpose of satisfying himself as to the legality or propriety of any order and to pass such order in relation thereto as he thinks fit.
Prima facie, therefore, these wide words give power to the Custodian General to revise any order passed by the Custodian.
It is urged on behalf of then respondents that the Custodian General could; not revise the order dated August 22, 1950.
We are not impressed by this argument.
Now the Act was passed in 1950 to set up a central organisation for the custody, management and control, etc.
, of property declared by law to be evacuee property with the Custodian General at the head.
It is also clear that all similar laws existing in various States on the date the Act came into force (namely, April 17, 1950) were repealed by it.
The intention of the Legislature obviously was to provide for the custody and management etc.
of evacuee property in the manner provided in the Act with the Custodian General as the head of the organisation.
Further, action taken with respect to evacuee property under the first Mysore Act was deemed under section 53 (2) of the second Mysore Act to have been taken thereunder and finally any action taken in the exercise of the power conferred by the second Mysore Act was deemed to have been taken in the exercise of the powers conferred by the Act.
Therefore, any action taken with respect to evacuee property and any order passed by any Custodian in any proceeding with respect to such property would be subject to the revisory jurisdiction of the CustodianGeneral under section 27 in view of the wide language thereof and the fact that proceedings started under the first Mysore Act.
would not, in our opinion, make any difference to the power of the Custodian General under section 27.
Obviously the order of August 22, 1950 was passed when the Act was in force in a proceeding relating to evacuee property by the Custodian and the Custodian General would be competentunder section 27 to call for the record of that proceeding and satisfy himself as to the legality or propriety of any such order and thereafter pass, such order in relation thereto so he thought fit, We are, therefore, of opinion that ' 866 considering the purpose for which the Act was passed and the successive saving clauaes in the second Mysore Act and in the Act,,the Custodian General had the power under section 27 to call for the record of the proceed.
ing in which the order of August ' 22, 1950, was passed &ad consider its legality or propriety and Pass such order in relation thereto as he thought fit.
Even if the notice of October, 1950, may be open to question as it was issued before Act LXVI of 1950 was passed, there can be no doubt that the order of February,, 1952, under a. 27 was passed after hearing the parties and would be valid and within the jurisdiction of the Custodian General when it was passed.
Therefore, the order of the Custodian General dated February II,, 1952, being within his jurisdiction would not be liable to be set aside on a writ of certiorari as if the Custodian General had acted without jurisdiction.
The subsequent proceedings, therefore, which took place after the order of the Custodian General would also be with jurisdiction and would not be liable to be set aside on a writ of certiorari on the ground that they were without jurisdiction.
The High Court, thereforewas in error in holding that the order of the Custodian, General dated February 11, 1952,was without juries diction and therefore all subsequent proceedings taken in pursuance thereof were also without jurisdiction, with the result that the order of August 22, 1950 stood fully operative.
This brings us to the next question whether any appeal lay to the High Court against the order of December 2, 1952.
There is no,doubt that the proceedings in the present case commenced under the first, Mysore Act with a notification under is.
6 and claim applications under section 8.
If the original proceeding had finished when the first Mysore Act was in force and the order of December 2, 1952, had been passed during its operation there would undoubtedly have been as appeal to the High Court under section 30 thereof.
But the, first Mysore Act, was repealed by the second Mysore Act in.
November, 1949, and the second Mysore Act was in its turn repealed by the Act #,a from April 1950.
The, questions therefore, that arises for consideration 867 is 'Whether after the repeal of the first Mysore Act an appeal would still lie to the High Court from the order of December 2, 1952.
The main contention of Mr. Sastri in this behalf is that if the second Mysore Act or the Act contained provisions which were similar to the provisions contained in section 8 of the first Mysore Act, it may have been possible to say that the remedy provided by the first Mysore Act under section 30 had been superseded by the remedy provided in the Act, that remedy being an appeal to the Custodian General under section 24 of the Act.
The argument further proceeds that neither the second Mysore Act nor the Act provides anything similar to what was provided by section 8 of the first Mysore Act.
Therefore, even though the first Mysore Act was repealed by the second Mysore Act the proceedings in the present case must be deemed to be still under the first Mysore Act which must be deemed to be existing for this purpose and, therefore, the right of appeal being a vested one and &rising when the proceedings commenced, there would still be a right of appeal under section 30 of the first Mysore Act in spite of its being repealed.
When the matter came before the Custodian in 19,52 it was contended before him that the proceedings should be taken to be under the first Mysore Act.
He accepted this contention, though he added that it was immaterial for the purposes of the present cases as the definition of " evacuee " in section 2(c) of the first Mysore Act was practically the same as in section 2(d) of the Act.
It is urged that in view of the manner in which the Custodian, dealt with the case when he passed the order.
dated December 2, 1952, the proceedings before him must be taken to be under the first Mysore Act and if so an appeal would lie to the High Court under ,section 30.,of the first Mysore Act.
This view has been accepted by the High Court also and that is why it hold; that the appeals before it were competent; and it is,, the correctness of this view which has been challenged before us.
Now there is no doubt that the right of appeal is a substantive right and arises when A proceeding is commenced and cannot be taken away by subsequent 868 legislation, except by express provision or necessary intendment.
There is no express provision in the present case taking away the right of appeal conferred by the first Mysore Act.
We have therefore to see whether it can be said that the right of appeal conferred by the first Mysore Act has been taken away by necessary intendment by the subsequent legislation ; and if so whether it has been completely taken away or has been replaced by another right of appeal, though not to the High Court.
Under the first Mysore Act, as we have already pointed out, evacuee property ipso facto vested in the Custodian under section 5.
There.
after the Custodian was expected to notify such property under section 6.
On such notification or where the Custodian demanded surrender of possession a person claiming any right to the property was entitled to make an application preferring a claim before the Custodian.
That application was dealt by the Custodian in a summary manner and he had 'the power either to reject the application or allow it in whole or in part.
An order passed by the Deputy or the Assistant Custodian under section 8 was appealable to the Custodian and an order passed by the Custodian or Additional Custodian or an authorized Deputy Custodian was appealable to the High Court.
The contention on behalf of the respondents is that when the first Mysore Act was replaced by the second Mysore Act, there was a vital change in the procedure and therefore cases in which proceedings had commenced under section 8 could only be dealt with under the first Mysore Act and for that purpose the first Mysore Act would be deemed to be alive under a. 6 (e) of the Mysore General Clauses Act, No. III of 1899, which corresponds to section 6 (e) of the General Clauses Act, No. X of 1897.
Now there is no doubt that the proceedings in these cases commenced under the first Mysore Act though they terminated when that Act was no longer in force.
What we have to see is whether there is anything in the repealing legislation which by necessary intendment took away the right of appeal provided by the first Mysore Act and substituted in its place another right of appeal provided by the repealing Act, 869 The argument of Mr. Sastri is that there is nothing in the second Mysore Act which repealed the first Mysore Act corresponding to section 8 of the first Mysore Act and therefore in spite of the repeal of the first Mysore Act proceedings commenced under a. 8 of that Act would continue to be governed thereby, including the right of appeal.
In this connection he urges that the scheme of the second Mysore Act with respect to evacuee property is vitally different from the scheme which is to be found in the first Mysore Act.
In the second Mysore Act there is no provision corresponding to section 5 of the first Mysore Act by which any property becomes ipso far to evacuee property and vests in the Custodian.
Under the second Mysore Act the Custodian has first to form a tentative opinion whether the property is evacuee property and after he has formed such opinion he gives notice thereof to the persons interested; after such notice is given he holds inquiry into the matter and thereafter passes an order declaring the property to be evacuee property.
Thus under the first Mysore Act the property became evacuee property ipso facto and the person claiming any interest in it had to proceed under section 8 and make a claim which had to be investigated and thereafter the Custodian finally declared whether the property, which he had notified under section 6 was evacuee property or not.
Under the second Mysore Act there being no vesting ipso facto, the proceeding commences; with a notice by the Custodian to the person interested followed by an inquiry after which the Custodian decides to declare the property evacuee if he finds it to be so under the law.
Further under the second Mysore Act when an order was passed declaring property to be evacuee property under a. 5 it was open to the person aggrieved by such order to file an appeal to the Custodian where the original order had been passed by the Deputy Custodian or Assistant Custodian and to the Custodian General where the original order had been passed by the Custodian, Additional Custodian or Authorised Deputy Custodian.
There was also in certain cases appeal to the District Judge; but we are not concerned with that in the 870 present appeals.
The position under the Act was also the same as under the second Mysore Act and the right of appeal was also similar.
It is thus true that there has been a change in the procedure by which evacuee property is finally declared to be evacuee property.
Under the first Mysore Act the property became evacuee property and the person had to go and file a claim and establish that it was not.
That claim was investigated and after investigation the Custodian had to come to a final conclusion whether the property was evacuee or not. 'If he came to the conclusion that it was evacuee property, the vesting under section 5 was confirmed.
If on the other hand he came to the conclusion that the pro perty was not evacuee property the legal effect was that there was no vesting under section 5 of the first Mysore Act.
Under the second Mysore Act the property did not ipso facto vest in the Custodian as evacuee property but he formed a tentative opinion as to whether it was evacuee property and then gave notices to the persons interested.
They appeared before him and the matter was investigated.
He then had to come to a final conclusion whether the property was evacuee property or not.
If he came to the conclusion that it was evacuee property he declared it to be such; if on the other hand he came to the conclusion that it was not evacuee property the proceedings came to an end.
It will be seen therefore on a comparison of the two procedures that though there is difference between the two, the difference is not of a vital or substantial nature.
In the one case the ' law started with the presumption that the property was evacuee property and the person interested had to go and make a claim and establish that it was not evacuee property and the matter had to be investigated and the Custodian finally had to come to the conclusion one way or the other.
In the other case the law did not start with the presumption but only a tentative opinion was to be formed by, the Custodian who gave notice to the person interested and the matter was then investigated and thereafter the Custodian had to decide finally one way or the other 871 But in both cases the question whether the property was evacuee property or not was investigated and it was only after investigation that it could be finally said whether the property was evacuee property or, not.
Therefore, though there may be an apparent difference between what is provided by a. 8 in the, first Mysore Act and by section 5 in the second Mysore Act as also by section 7 in the Act, the difference is, not material and it is only after investigation, whether under section 8 of the first Mysore Act, or under section 5 of the second Mysore Act or under section 7 of the Act that the Custodian comes to the final conclusion whether the property is evacuee property or not.
Under the circumstances it would not in our opinion be unreasonable to say that the investigation provided under a. 8 of the first Mysore Act and the subsequent remedies following on an order under section 8 are in substance the same as the investigation provided under section 5 of the second Mysore.
Act ores.
7 of the Act and the subsequent remedies following on an order thereon.
We cannot, therefore, agree with the High Court that there is nothing in the second Mysore.
Act to correspond to section 8 of the first Mysore Act and therefore these proceedings which began under the first Mysore Act must continue to be governed by that Act in spite of its repeal by the second Mysore Act.
As we have pointed out above the proceedings under section 8 of the first Mysore Act are in substance equal to proceedings under section 5 of the second Mysore Act and therefore proceedings commenced under the first Mysore Act must in view of a. 53(2) of the second Mysore Act, be deemed to be proceedings under section 5 of the latter Act.
Once that conclusion is reached and it seems to us that it is inevitable it follows that an order made in a proceeding commenced under section 8 of the first Mysore Act must be deemed to be an order made under section 5(1) of the second Mysore Act or under section 7(1) of; the Act.
In this connection it is relevant to point out that; it could not have been the intention of the legislature to keep the first Mysore Act alive for certain purposes for all, time the whole object of passing the subsequent Acts is plainly against such an assumption.
872 The next question that arises is whether the second Mysore Act and the Act took away the right of appeal which lay to the High Court under the first Mysore Act and substituted for it another right of appeal by necessary intendment.
As we have already Pointed out, there is no express provision either in the second Mysore Act or in the Act in this behalf.
But once it is held that proceedings which commenced under section 8 of the first Mysore Act must, when the second Mysore Act came into force, be deemed under section 53(2) thereof to be proceeding under section 5(1) or when the Act came into be deemed under section 58(3) thereof to be proceeding under section 7(1) and must be continued under those provisions, it follows that the legislature necessarily intended that all subsequent action following an order under section 5(1) or section 7(1) must be taken under the second Mysore Act or under the Act as the case may be.
It could not have been intended by the legislature when it was expressly providing for appeal from an order under section 5(1) of the second Mysore Act or under section 7(1) of the Act that a proceeding commenced under the first Mysore Act (which was equivalent to a proceeding under section 5(1) or section 7(1) should continue to be governed in the matter of appeal by the first Mysore Act.
This is therefore in our view a case where by necessary intendment (though not by express provision) the legislature intended that the provision as to appeals provided by subsequent legislation should supersede the provision as to appeals under the first Mysore Act.
We may point out that this is not a case where the right of appeal disappears altogether,, all that happens is that where the order is passed by the Custodian the appeal lies to the Custodian General instead of to the High Court.
The legislature has provided another forum where the appeal will lie and in the circumstances it must be held that by necessary intendment the legislature intended that forum alone to be, the forum where the appeal will lie and not the forum under the first Mysore Act.
Reference in this connection may be made to Garikapatti Veeraya vs 873 N. Subbiah Choudhury (1), where this Court held that the vested right of appeal was a substantive right and was governed by the law prevailing at the time of th commencement of the suit and comprised all successive rights of appeal from court to court which really constituted one proceeding but added that such right could be taken away expressly or by necessary intendment.
In the present cases we are of opinion that once proceedings under section 8(1) of the first Mysore Act are held to be similar to proceedings under section 5(1) of the second Mysore Act or section 7(1) of the Act, it must necessarily follow that the legislature intended this all subsequent proceedings in the nature of appeal after the first Mysore Act came to an end, must being the forum provided by the subsequent legislation We are therefore of opinion that the High Court was in error in holding that appeals to it lay from the order of December 2, 1952.
The result of the view we have taken is that the High Court was not justified in looking into the order of December 2, 1952, as an appellate court,, though I would be justified in scrutinizing that order as if it was brought before it under article 226 of the Constitutional for issue of a writ of certiorari.
The limit of th jurisdiction of the High Court in issuing writs of certiorari was considered by this Court in Hari Vis Kamath vs Syed Ahmed Ishaque and others (2) and the following four propositions were laid down: (1) Certiorari will be issued for correcting errors of jurisdiction ; (2)Certiorari will also be, issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice; (3), The court issuing a writ of critorari acts in exercise of a supervisory land not appellate jurisdiction.
One consequence of this is that, the court will not review findings of fact reached by.
the inferior court or tribunal, even if they be erroneous; (4)An error in the decision or determination itself may also be amenable to a writ of certiorari if (1) ; (1) ; , 874 it is a manifest error apparent on the face of the proceedings, e.g., when it is based on clear ignorance or disregard of the provisions of law.
In other words, it is a patent error which can be corrected by certiorari but not a mere wrong decision.
In the present case, the Custodian had jurisdiction to decide the matter once it is held that the, Castodian General had jurisdiction to set aside the order of August 22, 1950.
The main question for decision in these cases was whether the respondents were evacuees within the meaning of a. 2(c) of the first Mysore Act.
The questions that fall for decision under section 2(o) are questions of fact and as pointed out in Hari Vishnu Kamath 's case (2) it is not open on a writ praying for certiorari to review findings of fact reached by an inferior court or tribunal even though they may be erroneous.
Further, unless there is a patent error of law there can be no interference by a writ of certiorari.
While dealing with the writ petitions the main argument that appealed to the High Court was that the Custodian General, had no Jurisdiction in revision to reopen the earlier proceedings and in consequence all subsequent proceedings were null and void The High Court was further aware of the fact that, the ordinary remedy of the respondents in these cases against the order of December 2, 1952, was to appeal to the Custodian General tinder section 24 of the Act; but as it was of the view that the order of ;the Custodian General under a. 27 was without jurisdiction it held that it should interfere and set aside the order of December 2, 1952, which was also without jurisdiction and restore that, of August 22,1950.
In the view we have taken, the order of the Custodian General was with jurisdiction and therefore there was in our opinion no reason for the High Court interfere in the exercise of its jurisdiction under article 226 of the Constitution with the order of December 2, 1952, as this is a case where only a writ of certiorari could issue and that is not justified in view of the decision in Hari Vishnu Kamath 's case(1) (1) ; 875 We therefore allow the appeals, set aside the order of the High Court and restore that of the Custodian dated December 2, 1952.
This of course will not take away the right if any of the respondents to approach the Custodian General, for we have not considered the merits of the order, of December 2, 1952.
In the circumstances of this case we pass no order as to costs.
Appeals allowed.

dataset_name: IN-Abs

summary:
On July 7, 1949, the then State of Mysore passed the Mysore Administration of Evacuee Property (Emergency) Act, 1949, providing, inter alia, for the appointment of a Custodian of Evacuee Property for the State of Mysore for the purpose of administering evacuee property in the State.
By section 6 all evacuee property vested in the Custodian under section 5 had to be notified by him in the Mysore Gazette, while section 8 provided that any person claiming any right to any property notified under section 6 might prefer a claim to the Custodian on the ground that the property was not evacuee property.
Section 30 provided for an appeal to the High Court where the original order under section 8 had been passed by the Custodian, an Additional Custodian or an Authorised Deputy Custodian.
This Act was replaced by the Mysore Administration of Evacuee Property (Second) (Emergency) Act, 1949, which came into force on November 29, 1949.
Section 53(2) of that Act provided that anything done or any action taken in the exercise of any power conferred by the earlier Act shall be deemed to have been done or taken in the exercise of the powers conferred by the later Act.
Under the second Act, instead of the High Court an appeal from the order of the Custodian lay to the Custodian General, appointed by the Government of India under the provisions of the Administration of Evacuee property Ordinance, 1949, which had come into force on October 18, 1949 ; and in addition, section 25 Of that Act provided for revision by the Custodian General of orders passed by the Custodian.
The , which was passed by Parliament and which came into force on April 17, 1950, provided substantially for all matters contained in the second 856 Mysore Act.
Section 27 gave the Custodian General powers of revision against the orders of the Custodian, and section 58 as amended and given retrospective operation, provided that " if, immediately before the commencement of this Act, there was in force in any State to which this Act extended any law which corresponded to this Act and which was not repealed. . that corresponding law shall stand repealed.
" On September 21, 1949, the Custodian issued a notification declaring the properties of the respondents as evacuee properties, and claims filed by them under section 8 of the earlier Mysore Act were investigated by the Deputy Custodian who dismissed the same on April 17, 1950.
Appeals were filed against the said order before the Custodian and were allowed on August 22, 1950.
on the ground that there was not sufficient evidence to prove the respondents as evacuees and consequently the properties in question could not be treated as evacuee properties.
On October 3, 1950, the Custodian General gave notice to the respondents under section 27 of the , in respect of the order of the Custodian dated August 22, 1950, and asked them to show cause why the said order be not revised.
On February II, 1952, the Custodian General set aside the order and directed the Custodian to dispose of the cases afresh.
On December 2, 1952, the Custodian passed an order by which he held that the respondents were evacuees and that their properties were evacuee properties.
Against this order the respondents filed two appeals to the High Court, and also two writ petitions under article 226 of the Constitution as they had doubts whether any appeal lay to the High Court.
The High Court took the view that the Custodian General bad no power under section 27 of the Act to revise the order of the Custodian and that as the proceedings in these cases began under section 8 of the first Mysore Act and as there was nothing corresponding to that section either in the second Mysore Act or in the Act of 1950, the High Court was entitled to hear the appeal from the order of December 2, 1952, as that order must be held to have been passed in proceedings under the first Mysore Act.
The High Court then went into the matter as an appellate court and came to the conclusion that the order of the Custodian dated December 2, 1952, 'Was erroneous.
Held, that the High Court erred in holding that the order of the Custodian General dated February II, 1952, was without jurisdiction.
Considering the purpose for which the Administra tion of Evacuee Property Act, 195o, was passed and the successive saving clauses in the second Mysore Act and in the Act, the Custodian General bad the power under S ' 27 to call for the record of the proceeding in which the order of August 22, 1950, was passed and consider its legality or propriety.
Held, further, that the High Court was also in error in holding that appeals to it lay from the order of December 2, 1952.
857 An order made in a proceeding commenced under section 8 of the.
first Mysore Act must be deemed to be an order made under section 5(1) of the second Mysore Act or under section 7(1) of the Act, in view of section 53(2) of the second Mysore Act and section 58(3) of the Act.
Consequently, by necessary intendment, the legislature must have intended that the provision as to appeals provided by subsequent legislation should supersede the provision as to appeals under the first Mysore Act.
Garikapatti Vecraya vs N. Subbiah Choudhury ; , referred to.
Since the main question for decision in these cases was whe ther the respondents were evacuees, and as such a question was one of fact, the High Court was not justified in looking into the order of December 2, 1952, as an appellate court in dealing with applications for a writ of certiorari under article 226 of the, Constitution.
Hari Vishnu Kamath vs Syed Ahmad Ishaque and Others, ; , applied.