judgement:
Civil Appeal No. 1166 of 1976.
Appeal by Special Leave from the Judgment and Order dated the 16th September, 1976 of the Madhya Pradesh High Court in Misc.
Petition No. 1004 of 1974.
M.N. Phadke, S.Q. Hasan and A.C. Ratnaparkhi for the appellant.
Ram Panjwani, H.S. Parihar and 1.
N. Shroff for Respond ent.
No. 1.
Niren De, Attorney General, Rameshwar Nath and Y.B. Desai, for Respondent No. 6.
The Judgnent of the Court was delivered by RAY, C.J. This appeal is by special leave from the judgment dated 16 September, 1976 of the High Court of Madhya Pradesh.
87 The appellant made an application under Articles 226 and 227 of the Constitution in the High Court and impeached the order dated 21 September 1974 whereby the Government dis missed the appellant 's objections against Scheme No. 9 M relating to Road Transport Nationalisation.
The appellant also impeached the Scheme as published in the Gazette on 11 October, 1974.
The High Court held that in view of the fact that Chap ter IV A of the (hereinafter re ferred to as the Act) is included as Entry 125 in the Ninth Schedule to the Constitution the appellant could not chal lenge the Scheme.
The High Court erred in holding that it was not open to the appellant to challenge the Scheme.
The Attorney General rightly and fairly said that the judgment of the High Court could not be supported on that ground.
The High Court failed to appreciate that though Chapter IV A of the Act is not open to any constitutional challenge it is open to any aggrieved person to challenge any Scheme on the ground that it is not a valid Scheme as required by the provisions of Chapter IV A of the Act.
Scheme No. 9 M relating principally to Jabalpur Sagar and Damoh Hatta routes was published by the State Transport Undertaking in the State Gazette on 15 November, 1963.
The Scheme was approved and finally published in the State Gazette on 12 February 1965.
Under the Scheme which came into force with effect from 2 April, 1965 Jabalpur Sagar and Damoh Hatta portions of the routes were reserved for exclusive operation by the State Transport Undertaking.
The portions Sagar Bhopal, Rehli Garhakota, Hatta Panna, Ka tangi Majhouli and Damoh Chhatarpur via Hirapur were kept for joint operation with existing permit holders with the condition that the permit holders with existing permits were not to pick up passengers from and to any station lying between Nohta Abhana Garhakota or any other two stations on Jabalpur Sagar road and Damoh Hatta and vice versa.
The Transport Authorities granted fresh permits cover ing Abhana Garhakota portion treating it to be a portion of joint operation with others.
This action of the Transport Authorities was found to be destructive of the true inten tion of Scheme No. 9 M. It thus became necessary to modify Scheme No. 9 M.
The proposal was then placed before the Board of the State Transport Undertaking referred to hereinafter as the Under taking by, the General Manager.
The Board of the Undertak ing considered the matter at its meeting held on 20 August 1973 and passed Resolution No. 8354approving the proposal modifying Scheme No. 9 M.
The Board 'Resolution directed inclusion of Sagar Rehli Garhakota Jabalpur and Patharia Damoh routes for exclusive operation by the State Corpora tion.
The Board directed that the Scheme giving the de tails should be placed before the Board for its approval.
In this background Scheme No. 9 M giving details was prepared and the proposal was placed before the Board of the Undertaking at the meeting held on 88 29 November, 1973.
The Board of the Undertaking approved the proposal by Resolution No. 1395 and authorised conse quential action.
Scheme No. 9 M was published in the Official Gazette on 7 December 1973.
The Scheme was thereafter considered by the Special Secretary to the State Government in exer cise of powers under section 68D of the Act.
Under section 68D of the Act persons contemplated in the Act might file objections and the State Government would hear objections and then approve or modify the Scheme.
The State Government on 21 September 1974 approved the Scheme after having heard the objections.
The approved Scheme was notified in the State Gazette dated 11 October 1974.
The approved Scheme came into force with effect from 19 November, 1974.
Scheme No. 9 M as approved, after hearing objections, provided in clause (2) that the State Road Transport Serv ices would be provided on the routes of Jabalpur, Sagar and Bhopal regions.
In clause (2) of the Scheme 25 routes are set out.
Route No. 2 is Jabalpur Bhopal via Patan, Tenduk heda, Damoh, Rehli, Sagar and Raisen.
Route No. 3 is Jabalpur Sagar via Katangi and Damoh.
Route No. 4 is Jabal pur Sagar via Patan, Tendukheda, Damoh and Rehli, Route No. 20 is Sagar Patharia.
In clause (4) of Scheme No. 9 M it is said that no person other than the Undertaking will be permitted to provide Roard Transport Services on the routes or portions thereof specified in clause (2) except as provided in clause (5).
In clause (5) it is stated that all Road transport Services will subject to the provisions made in the subsequent clauses, namely, No. (6) and (7) be provided by the Undertaking exclusively on JabalpurSagar via Katangi, Damoh and Damoh Hatta via Bangnon roads covering portions of the routes specified in clause (2).
The routes which the Under taking will operate in conjunction with others are (1) Jabalpur patan Tendukheda Abhana, (2) Damoh Patera Hatta Panna, (3) Damoh Hirapur Tikamgarh and (4) Damoh Hirapur Chhatarpur portions of the routes specified in clause (2).
In clause (7) of the Scheme is set out a list of permits granted by the Regional Transport Authorities and modified as indicated therein.
In Item No. 20 of the list is set out the name of United.
Transport and in Items 22 and 23 is set out the name of S.S.M. Trading Company, Society.
The route of Damoh jabalpur via Abhana, Patan which was in the name of United Transport Company was modified to remain operative on the route of Abhana Jabalpur via Tendukheda, Patan.
The route of Sagar Jabalpur via Reihli, Gerhakota, Abhana, Tejgarh, Patan which had been given to S.S.M. Trad ing Company was modified to Abhana Jabalpur via Tendukheda, Patna.
It, therefore, appears from the Scheme that the routes (1) Jabalpur Patan Tendukheda Abhana, (2) Damoh Patera Hatta Panna, (3) Damoh Hirapur Tikamgarh, (4) Damoh Hirapur Chhattarpur were to be operated by the Undertaking in conjunction with existing permit holders.
89 The appellant under section 68D of the Act preferred objections to the Scheme.
The objections were four in number.
First the Scheme is mala fide as it is intended "to avert (sic) issuance of permits on these routes to private operators".
Second the Scheme is published without the undertaking forming the requisite opinion under section 68C of the Act.
Third the Scheme is discriminatory.
Two permits of the appellant are proposed to be curtailed where as 14 permits on Sagar Rehli Garhakota route have been left over.
Fourth the Scheme does not fulfil the four fold tests in section 68C of the Act.
The Government heard the objections.
The State Secre tary rejected the objections and approved the Scheme on 21 September 1974.
The State Secretary held that no mala fide was proved.
He also rightly held that nationalisation of Road Transport Service would result in the legal effect of stoppage of issue of permits on the routes mentioned in the Scheme.
In short, nationalisation of routes cannot be said to be mala fide.
The State Secertary found that the under taking considered the Scheme and formed the requisite opin ion under Section 68C of the Act.
The State Secretary found that there was no discrimination.
There was nothing to prove that similarly situated operators were treated dif ferently.
There was no proof that the undertaking knew of the existence of the alleged permit of the appellant or of others.
The State Secretary also found that the operators on Sagar Garhakota Patharia route were operating because it was not taken for exclusive operation.
In other words, the Scheme does not concern the route on which the 14 operators are alleged t0 be plying.
The State Secretary also found that the four purposes in section 68C of the Act were ful filled.
The appellant repeated some of the objections to the Scheme raised before the State Secretary and added new ones.
The appellant 's contentions here were these.
First Scheme No. 9 M which was finalised was not the opinion formed by the undertaking.
Second the appellant asked for resolution of the undertaking dated 20 August 1973 and this was not given.
Therefore, no opportunity was given to the appellant to raise objections under section 68D of the Act.
Third, Scheme No 9 M does not fulfil the four fold purposes, name ly, providing (a) efficient, (b) adequate, (c) economical and (d) properly coordinated road transport service as mentioned in section 68C of the Act.
Fourth curtailment of route Sagar Rehli Garhakota is contrary to clause (5) of the Scheme.
Chapter IV A of the Act contains sections 68 A to 68 I.
These provisions in Chapter IV A are under the heading "Special provisions relating to State Transport Undertak ings".
The Scheme recites that the Undertaking formed the opinion that for purposes of providing efficient, adequate, economical and properly coordinated road transport service provided in clause (2) of the Scheme, it is necessary in the public interest that the road transport service in relation to the said routes should be run and operated by the Undertaking in accordance with the Scheme.
There is thus in 90 trinsic evidence inherent in the Scheme that the Undertaking formed the opinion for the Scheme.
The State Secretary rightly rejected the contention of the appellant which was repeated here.
It appears from the order of the State Secretary who heard the objections of the appellant against the Scheme that the Secretary never made an order directing the Under taking to produce the resolution dated 20 August, 1973.
In the writ petition filed by the appellant in the High Court the appellant stated in paragraph 19 that the State Secretary instead of directing the Undertaking to produce these documents only observed that the Undertaking might think over the request adding that he might himself call for the said documents, if thought necessary.
It also appears from the judgment of the High Court that the proceedings before the State Secretary indicated that the appellant 's case was argued without any insistence on the. production of the resolution.
The High Court also noticed that the State Secretary made no such direction.
The fact that he made no such direction shows that he found it possible to give the decision without production of it.
The contention of the appellant is without any merit.
The State Secretary rightly held that the four fold purposes indicated in section 68C of the Act are estab lished.
This Court in Capital Multipurpose Cooperative Society Bhopal & Ors.
vs The State of M.P. & Ors(1), said that the right of a person to object to the Scheme is to be confined only to the four grounds, namely, that the Scheme did not provide (a) efficient, (b) adequate, (c) economical and (d) properly coordinated transport services.
The Scheme in the present case amply establishes that it fulfils the four purposes mentioned in the Act.
It has to be ' remembered that the Scheme in clause (2) as well as in clause (5) mentions the exclusive operation of the Undertaking on these routes in the public interest.
A mere allegation that the Scheme does not fulfil the purposes does not amount to any allegation and far less any proof.
The appellant laid emphasis on the contention that the appellant 's permits in respect of the portion Garhakota to Sagar via Rehli ought not to have been curtailed because the route was not reserved for exclusive operation by the State Transport Undertaking under clause (5).
It is a matter of policy as to what routes should be curtailed for the opera tion of the Scheme.
Courts do not judge such policy deci sions.
The appellant 's permits on the Garhakota Rehli Sagar routes expired on 26 and 30 September, 1976.
The appellant has been granted fresh temporary permit on the route which is of conjoint operation.
This temporary permit was granted to the appellant on 25 September, 1976.
The appellant has taken advantage of it.
It has to be shown that unless the appellant is allowed to operate on Sagar Rehli Garhakota route the Scheme will not be efficient, adequate, economical and properly coordi nated.
The appellant did not allege and substantiate the case.
This case cannot be entertained also for the reason that it is idle to suggest that the appellant will have not only Abhana Jabalpur via Tendukheda Patan route but also SagarRehli Garhakota route as of right.
(1) ; 91 It is not only competent but also conscionable that a Scheme for nationalisation can be complete or partial.
The efficiency as well as adequacy of the Scheme is advanced by such policy decisions of complete or partial nationalization of routes.
See H.C. Narayanappa & Ors, vs The State of Mysore & Ors.
C) Under section 68D of the Act the only scope for objection is whether the Scheme is efficient and adequate and not whether exclusion is complete or partial.
Objections axe confined only to the four grounds of effi ciency, adequacy, economy and proper coordination of road transport service.
Exclusion can be attacked only on these four grounds.
There was never any objection to the Scheme on exclusion related to any of these grounds.
The State Secretary in his order, on hearing the objections, rightly said that the Sagar Rehli Garhakota Patharia route is not to be taken for exclusive operation because there is no mention at all of the route.
The Scheme in clause (5) has specifi cally mentioned which routes are for operation by the State Transport Undertaking in conjunction with others.
The exclusion of the appellant from route on which the appellant had earlier operated cannot be said to challenge efficiency, adequacy, economy or proper coordination.
For these reasons the appeal is dismissed.
In view of the order of the High Court as to costs parties will pay and bear their own costs.
M.R. Appeal dis missed.

summary:
The Government of Madhya Pradesh proposed to pass scheme No. 9 M; regarding the nationalisation of road transport.
The scheme was approved and notified in the State Gazette, after the appellant 's objections made under section 68D of the , had been heard.
The appellant flied a writ petition in the High Court challenging the Government 's rejection of his objections, and also impeach ing the scheme as published in the gazette.
The High Court dismissed the petition holding that, as Chapter IV A of the Act has been included as Entry 125 in the Ninth Schedule to the Constitution, the scheme cannot be challenged.
Dismissing the appeal the Court, HELD: 1.
Though Chapter IV A of the Act is not open to any constitutional challenge, it is open to any aggrieved person to challenge any scheme on the ground that it is not a valid scheme as required by the provisions of Chapter IV A of the Act.
[87 C D] 2.
Under section 68D of the Act the only scope for objection is whether the scheme is efficient and adequate and not whether exclusion is complete or partial.
[91 A B] Objections are confined only to the four grounds of efficiency, adequacy, economy and proper coordination of road transport service.
There was never any objection to the Scheme on exclusion related to any of these grounds.
[90 D E] Capital Multipurpose Co operative Society Bhopal and Ors.
vs The State of M.P. & Ors. ; , ap plied.
H.C. Narayanappa & Ors.
vs The State of Mysore & Ors., ; , referred to:


judgement:
Appeal No. 1753 of 1968 Appeal by Special Leave from the Judgment and Order/Decree dated the 6th September, 1967 of the Calcutta High Court in Appeal from Appellate Decree No. 689 of 1964) S.C. Majumdar and G.S. Chatterjee for the Appellant.
Sukumar Ghose for Respondents 1 3.
The Judgment of the Court was delivered by KRISHNA IYER, J.
This appeal, by special leave, from the judgment of a Single Judge.
of the Calcutta High Court, raises a single legal issue with human overtones.
The State of West Bengal is the appellant at this the fourth and final deck of the judicial pyramid, having won the case as the 5th defendant at the earlier stages of the litigation but lost in the High Court.
The question, shortly put, is whether the vesting of estates in the State under ss.3, 4 and 5 of the West Bengal Estates Acquisition Act, 1953 (West Bengal Act I of 1954) (abbreviated for reference hereinafter as the Act) extinguishes the right of cattle grazing enjoyed by villagers in the grasslands of such estates on the. ground that such right amounts to 'incumbrance ' within s.2(h) of the Act.
The facts An estate in village Vadurerpati Madhabpur in the dis trict of Hooghly was among those vested in the State on a notification under s.4 of the Act, free from all encum brances as provided in ss.4 and 5.
The Plaintiffs respond ents are some of the denizens of the said village and, in this representative action, claim that the agrarian communi ty there have always enjoyed the right of pasturage over the suit estate and pray for the relief of injunction restrain ing the 5th defendant appellant from interfering with the exercise of the right to graze, as enjoyed before.
The State, however, denies the survival of such a right even if it did exist on the score that the fatal impact of s.5 has terminated all incumbrances on the estate and the right to graze cattle belonging to the villagers is but an "incum brance ' as defined in s.2(h) of the Act.
Thus the bone of contention between the parties is whether the collective claim of the villagers to graze their cattle on an estate vested in the State under the Act falls within the defini tion of 'incumbrance '.
If it does, the suit deserves to be dismissed but, if it does not, the High Court 's view is correct and the case has to be sent back for consideration on the merits.
We may mention, for completeness ' sake, that defendants 1 to.
4 are persons in whom the estate has been allegedly settled by the State, although this position is not clear or perhaps is denied by the State itself.
73 The issue, in a nut shell, is as to what is an 'incum brance '.
But this question, in the light of the definition which we will presently reproduce, resolves itself into two issues which will be self evident as we read the provision: "2(h) In this Act unless there is anything repugnant in the subject or context. x x x (h) 'incumbrance ' in relation to estates and rights of intermediaries therein does not include the rights of a raiyat or of an under raiyat or of a non agricultural tenant, but shall, except in the case of land allowed to be retained by an intermediary under the pro.visions of section 6, include all rights or interests of what ever nature, belonging to intermediaries or other persons, which relate to lands comprised in estates or to the produce thereof.
" And so the two gut questions are: (i) whether a right to graze cattle in the estate of another falls within the sweep of the comprehensive expression 'all rights or interests of whatever nature '; and (ii) whether the members of a village as a collective, though fluctuating body, are covered by the words 'intermediaries or other persons '.
While the two courts at the ground and first floor level decided the two points above mentioned in favour of the State, the High, Court, after a long and discursive discus sion, the labyrinthine course of which need not be traversed by us, reached the conclusion that the right in question was a public right belonging to an unspecified and varying group not a specific private interest vesting in specified persons and therefore left untouched by sections 3 to 5 and uncovered by s.2(h).
Is that view sustainable on a correct construction of the provision? Putting a literal and teleological construction on the definition of 'incumbrance ' we have hardly any doubt that the legislature has used language of the widest amplitude ' to cast the net wide and to catch all rights and interests whatever be their nature.
Indubitably, the right to graze cattle in .an estate is a restrictive interest clearly falling within the scope of the provision.
Indeed, so designedly limitless an area of rights and interests of whatever nature is included in the special definition of 'incumbrance ' for the purposes of the Act, that to deny the 'familiar rurally enjoyed right of pasturage as covered by it is to defeat, by judicial construction, the legislative intendment.
Likewise, there is no substance in the conten tion that the collective, though uncertain, body of villag ers cannot be brought within the expression 'or other persons '.
The connotation of those words in the context is 'intermediaries or persons other than intermediaries '.
This embraces all persons other than intermediaries and the villagers 74 who seek to exercised the right of grazing over the inter mediaries ' lands are plainly 'other persons '.
There is no warrant for the limited signification imputed to those words by counsel for the respondent when he argues that they refer to particular, definite and known individuals.
An unwarranted narrowing of meaning cannot be attributed where there is no contextual compulsion or fulfilment of statutory purpose thereby gained.
On the other hand, the great socio economic objective of the Act argues itself.
If it is to be successful as a land reform measure, the pre condition is that the estates must vest the intermediaries ' entire rights fully not moth eaten by carving out many little interests out of the plenary ownership of the State.
This intendment is further manifest from sections 4 and 5 which we set out below along with section 3: "s.3.
The provisions of this Act shall have effect notwithstanding anything to the contrary contained in any other law or in any contract express or implied or in any instrument and notwithstanding any usage or custom to the contrary: x x x x "s.4.(1) The State Government may from time to time by notification declare that with effect from the date mentioned in the notification, all estates and the rights of every intermediary in each such estate situated in any district or part of a district specified, in the notification, shall vest the State free from all incumbrances.
X X X "s.5(1) Upon the due publication of a notification under section 4, on and from the date of vesting (a) the estate and the rights of intermediaries in the estates, to which the declaration applies, shall vest in the State free from all incumbrances; in particular and without prejudice to the generality of the provisions of this clause, every one of the following rights which may be owned by an intermediary shall vest in the State, namely: x x x x According to ss.4 and 5, the vesting shall be 'free from all incumbrances '.
In short, from the perspective of land reform objectives, a specious meaning is derived by the definition in s.2(h).
Ordinarily, the Court cannot cut down the definitional amplitude given in the statute and we see no valid reason for departing from this golden rule.
The end product of this discussion is that the appeal must be allowed and, the suit dismissed.
Even so, we have been taken on a conducted tour by counsel on both sides more or less covering and controverting the points which have appealed to the High Court.
Shri Ghose, for the respondent, pressed before us a contention based on rural economics which has considerable force in a general 75 way, but has none from the legal angle.
India lives in her villages not in her cities.
This truth has been highlight ed by the Father of the Nation, but insufficiently remem bered by our law makers.
The agrarian community, with a cattle economy, rates high in the agrestic scheme the right of pasturage and so it is a human problem for the villagers and their very life if the State snatches the valuable right of pasturage which makes the village economy viable, in the name of.
estate 'abolition, without providing alternative village commons.
While we are moved by this submission and feel that this is an unintended consequence of comprehen sive vesting of estates in the State, we have only to ob served that the State, in our expectation, should, mindful of its welfare obligation, consider this facet of the prob lem and try to provide grazing grounds in villages where the impact of the Act has deprived the community of the right of pasturage.
Even if the consequence of abolition of intermediary rights leads to a baneful by product from the economic point of view, we,as Judges, are functionally committed to construction of the statute in the terms the legislature has cast it.
In this context our non legal reaction to the loss of grazing rights by the villagers is reinforced by the obser vations of Sarada Charan Mitra in his Tagore Law Lectures, 1895, on the Land Law of Bengal.
He observed at p.495 (II Edition): "Pasturage is, in the large majority of cases in this country, public, in the sense that they belong to or are capable of being used by a community or classes of individuals in a village.
Such rights are necessary for the preservation of society.
" x x x x "To an agricultural population, pasture land is of the utmost importance and there is seldom a village in Bengal 'which has not a large piece of land attached to it for the grazing of cattle belonging to its inhabitants.
" The High Court judgment comments: "He (Justice Sarada Charan Mitra) then refers to Verse 237, Chapter VIII in Manu and also refers to Yajnavalkya.
Hence such customary right has been recognised in India from very early times.
" Our conclusion cannot therefore be deflected by the unfortunate deprivation, especially because we part with this judgment hopefully, counsel for the appellant having assured the Court that these observation will be communicat ed to his client.
This simplistic disposal of the disputed points may not be fair to the High Court, especially because the learned Judge has, in an avoidably erudite survey of Indian and English authorities considered two vital issues.
He has discussed at some length the plurality of legal issues: What is the nature, in terms of welt known interests or rights in or over property, of the right of pasturage ? Is it an easement under the Indian Easements Act or the Indian Limitation Act ? Is it profit a prendre and, if so, does it become a right or in 76 terest within section 2(h) of the Act ? Can an easement or right of common pasturage be claimed by a fluctuating body of persons the villagers ? Is such a customary right recog nised in Indian Law ? The learned Judge has followed up the discussion on these points with a further eloborate examination of one other principal issue and two subsidiary points which, may be expressed in his own words: "The question is whether customary right 'enjoyed ' by the villagers is a right belonging to other persons relating to the land compensed in the estate or to the produce thereof.
This leads to the consideration of two matters: (a) whether the villagers are other persons within the meaning of section 2(h) of the Estates Acquisition Act; and (b) whether such customary right 'belongs ' to the villagers or to any individual in the village.
" We have been taken on a lengthy tour (as we have already mentioned) of these areas of law by counsel on both sides but we do not think it necessary to cover them in this judgment at any length.
The conclusion of the learned Judge is that a grazing right or right of pasturage subject to the local requirements of a valid custom, is local law in India.
English and Indian decisions and other text book citations have been referred to by the High Court and read before us, but whether such a customary right iS law or not it cannot affect the question before us for the simple reason that s.3 of the Act expressly says that the provisions of the Act 'shah have effect notwithstanding anything to the contrary contained in any other law . and notwithstanding any usage or custom to the contrary. ' Undoubtedly, the plenary vesting of the entire rights of the intermediary under sections 4 and 5 is cut down by a customary right which reduces the ambit of the intermediary right and therefore is con trary to the provisions of ' s.5.
Moreover, when ss.4 and 5 declare unmincingly that the vesting shall be free from all incumbrances, a customary right of grazing which clearly is an incumbrance runs counter to this clause.
Certainly the definition of 'incumbrance ' cannot take in a right or inter est unless it is in favour of intermediaries, or other persons.
The learned Judge has considered whether villag ers constitute a corporation or person, whether fishermen in a body living in a village can be said to be persons.
He has also reasoned that since no compensation is paid by the State under the Act for the taking of the customary rights 'such provision for vesting would be void under the Constitution '.
Section 161, 183 of the Bengal Tenancy Act and ss.2(p), 5(aa)and 6(h) have all been considered in a learned chain of reasoning.
Reliance has also been placed on rulings and text books.
As earlier ' stated, we are disinclined to delve into the details of this discussion.
The villagers are clearly 'other persons ' and none of the ruling cited before us or referred to by the learned Judge has considered this point.
especially in the context of the extremely wide language used in section 2(h) of the Act.
It is inconsequential to say that the customary right is law.
Equally unhelpful is the finding that the right to graze vested in villagers is a public or quasi public right.
Even if it is, once it falls within the definition of 'incumbrance ' paring down the totally of intermediaries ' rights.
section 3 hits it down.
77 The conclusion is irresistible that the State 's defence is impregnable.
The appeal therefore deseves to be allowed and the suit dismissed which we do, directing the parties to bear their costs through out.
Once again we hark back to the human factor of taking away an invaluable right of humble villagers viz., the right of pasturage and feel confident that a Welfare State, deeply concerned with preservation of.
village economy, will not hesitate to provide fresh pastures.
for the preservation of agrestic life and agricultural prosperity.

dataset_name: IN-Abs

summary:
Certain estate in a village was acquired under the West Bengal Estates Acquisition Act, 1953.
Section 3 of the said Act provides that the provisions of that Act shall have effect notwithstanding anything to the contrary contained in any other law or contract expressed or implied or any in strument or any usage or custom.
Section 4 authorities the State Government by a notification to declare that all estates and the rights of every intermediary in each such estate shall vest in the State free from all encumbrances.
Section 5 provides that on publication of such a notifica tion the estates to which the declaration applies shall vest in the State free from all encumbrances.
Section 2(h) defines an encumbrance as under: " 'incumbrance ' in relation to estates and rights of intermediaries therein does not include the rights of a raiyat or of an under raiyat or of a nonagricultural tenant, but shall, except in the case of land allowed to be retained by an intermediary under the provisions of section 5, include all rights or interests of whatever nature, belonging to intermediaries or other persons, which relate to lands comprised in estates or to the produce thereof.
" The respondents, some of the villagers, filed a suit against the appellant in a representative action claiming that the agrarian community in the village has always been enjoying the right of pasturage over the suit estate and that the said right survived in spite of the notification under the Act.
The appellants contended that no such right survived after the publication of the notice and in any event, even if such a right amounted to an incumbrance it came to an end by virtue of section 5 of the Act.
According to the respondents the said right was not an incumbrance within the meaning of the said Act and according to the appellant it was an incumbrance.
The suit and the appeal filed by the respondents were dismissed.
The High, Court, however, allowed the Second Appeal filed by the respondents.
Allowing the appeal by Special Leave, HELD: (1) The great socio economic objective of the Act if it is to be successful as a land reform measure requires that all the rights must vest fully in the State.
[74A C] (2) From the perspective of land reform objective, a specious meaning is derived by the definition of incum brance.
Ordinarily the court cannot cut down the defini tional amplitude given in the statute and there is no reason for departing from the said golden rule.
The Legislature used the expression incumbrance in its widest amplitude to cast the net wide so as to catch all rights and interest whatever be their nature.
[74C G] (3) There is no substance in the contention of the respondent that the collective, though uncertain body of villagers cannot be brought within the expression "or other persons".
The expression "intermediaries or persons other than intermediaries" embraces all persons, and the villagers who seek to exercise the right of grazing over the interme diaries ' lands are plainly "other persons".
[73 G H] (4) The conclusion of the High Court that the grazing right is a customary right does not carry the case of the respondents any further because the provisions of section 3 operate notwithstanding any usage or custom to the contrary.
[76 D F] 72 The Court observed that the present appeal raises a human problem and as 'grazing ' right is an important aspect of agrestic life the State should try to provide alternative grazing grounds to villagers when such rights are taken away [76A C]


judgement:
Appeal No. 333 of 1969.
(Appeal by Special Leave from the Order dated the 22 8 1968 the Punjab and Haryana High Court in L.P.A. No. 427 of 1968).
B. Sen and H.K. Puri, for the appellant S.K. Mehta, P.N. Puri and K.R.Nagaraja.
for respondent No. 5.
The Judgment of the Court was delivered by BEG, J.
This appeal by special leave is directed against the judgement of a Division Bench of the High Court of Punjab & Haryana.
dismissing in litnine an appeal against a judgment and order of a 123 learned single Judge of that Court by which a Writ Petition made to the High Court had been granted.
We have been taken through the very detailed judgment of the learned single Judge where all the relevant facts are considered in detail.
The questions which have been raised before us are: firstly, whether the learned single judge was justified in considering the facts of the case and recording certain findings of fact without having even the advantage ' of the record of the proceedings of the Deputy Chief Settle ment Commissioner, and other officers who had given certain other findings in favour of the appellant; secondly, whether the learned single Judge 's findings of fact are correct; and, thirdly, whether any such apparent error was disclosed in the proceedings of the authorities acting under the Refugees Rehabilitation and Settlement Act as to justify interference by the High Court.
It was urged that a mistake apparent on the face of the record has to be one which does not necessitate delving deep into facts on record to discov er it after a re examination of questions of fact which ought to be left to the authorities empowered to give these findings.
It is true that the High Court does not sit as a Court of appeal to substitute its own judgment for that of the authorities which are empowered to give their decisions in such cases.
Apart from jurisdictional errors, the High Court may correct errors apparent on the face of the record.
An error to be apparent must, according to a rough test laid down by this Court in S.L. Hedge & Ors.
vs M.B. Tirumale(1), be one which does not take prolonged arguments to bring it to the surface.
These propositions are quite well estab lished.
It is, however, also a settled rule of practice of this Court not to interfere with the exercise of discretionary powers of High Courts under Article 226 of the Constitution merely because two views are possible upon the facts of a case.
Furthermore, in order to induce this Court to inter fere under Article 136 of the Constitution the the question must involve at least a matter of public or general importance or the injustice suffered by an individual due to an error of law should be so gross as to touch the con science of this Court in which case it would be deemed to be one of more than private importance.
The case before us is one of a competition between two auction purchasers of the same property put up for sale at two different auctions by the Managing Officer, Amritsar.
The first was in favour of the respondent Smt.
Rup Kaur, held on 20th August, 1959, and the second in favour of.
Beant Singh, the appellant, held on 10th May, 1961, on the assumption that the first auction could be cancelled.
The broad material facts, apparent from the original official record, which is now before us, are stated below.
At the auction sale on 20th August, 1959, held by the Managing Officer, Amritsar, Rup Kaur 's bid of Rs. 32,000/ , being the highest, was accepted and this fact was communi cated to her by a letter dated (1) [1960] (1) S.C.R. 890.
124 11th September, 1959, sent through her son and general attorney M.S. Grewal.
This letter was in the following terms: "Dear Sir/Madam, I am to inform you that your bid for Rs. 32,000/(Rupees thirty two thousands only) in respect of property No. B XII 18 S 14 (Portion I and III) Hide Market Amritsar has been accepted as per terms and conditions of the auction.
You have executed an indemnity bond in lieu of the earnest money due from you for adjustment against the compensation admissible on your verified claim(s).
For this purpose please furnish if you have not already done at the time of auction the registration number of your compensation application, so as to reach this office within seven days of the issue of this letter.
In case you intend to associate any other claimants with you in the purchase of the above mentioned property you should also submit affidavits of association duly completed by you and by each of your asso ciates, as per specimen attached to this office within the period specified above.
The balance of the purchase money, if any, found due from you, after scrutiny of your compensation application and that of your associates will be communicated to you in due course.
Yours faithfully, Sd/ District Rent & Managing Officer, Amri tsar".
The above mentioned letter showed that the contesting re spondent being a displaced person had executed an indemnity bond and had to furnish some information so that adjustment of the compensation due to her may be made against the amount which she had to deposit.
What was that information? On the margin of the front page of this letter is a partial ly illegible writing running from top to bottom of the printed full scap sheet on the original record. With some difficulty the following part only can be read: "You are required to submit the following documents regarding provi sional possession within seven days from the receipt of this letter failing which your case wilt be . " After "will be" nothing is found written.
It is disputed between the parties whether this writing in hand of the margin existed on the letter received by Smt.
Rup Kaur 's attorney.
Howev er, even looking at the copy on the original record, the meaning is not at all intelligible.
If it existed, it could only confuse and not enlighten the recipient as to what was to be done.
An order was then passed, on 8th March, 1961, which runs as follows: 125 "ORDER, Smt.
Roop Kaur through her attorney Shri M.S. Grewal the auction purchaser of unit No. B.XIII 18 S 14 (Portion I and III) Hide Market Amritsar has failed to deposit the balance sale price amounting to Rs. 28,000/ in spite of issue of registered notice for 2 1 61.
Her bid is, therefore, cancelled and earnest money forfeited.
Settlement Officer Jullndur may be requested to deduct Rs. 3200/ as earnest money out of CA No. P/J/I0110.
The applicant may be informed accordingly and property disposed of in the next sale programme.
Announced.
Dated 8 3 61.
Sd/ Distt.
Rent & Managing Officer, Am ritsar".
This order does not state that parties were duly heard.
It is disputed whether the notice mentioned in it, alleged to have been sent to Smt.
Rup Kaur on 18 12 1960 asking her to.
appear on 2 1 1961, was received by the contesting respond ent. ' Even if the learned Single Judge 's finding that it was not received at all by her were not correct, the time fixed for her appearance was too short.
Furthermore, the allega tion that she had been called upon, presumably by the letter dated 11 9 1959 to deposit Rs. 28,000/ was, on the face of it, untrue.
Despite a report in her favour by the Regional Settlement Commissioner, who investigated the facts and reported to the Chief Settlement Commissioner, that she had not been properly served, justice was denied to her by the Chief Settlement Commissioner on 26 6 1963.
The learned single Judge had examined the facts and pointed out other obvious illegalities at earlier stages showing that provisions of Rules 90 and 92 and 105 of the Displaced Persons Compensation & Rehabilitation Rules 1955 were not complied with in cancelling the sale.
According to Rup Kaur, who filed some application on 9th May, 1961, when she learnt what had happened, she had also filed an appeal against the order of 8th March, 1961, and made a request for extension of time for payment of the balance of the purchase money, but, on 14th June, 1961, the following order was passed by the Assistant Settlement Commissioner on her appeal: "This is an appeal against the order of Distt.
Rent & Managing Officer Amritsar dated 8 3 61 whereby he cancelled the appellants bid and forfeited the earnest money on account of his failure to deposit the balance price of property No. B. XIII 18 S 14 (Portion I & III) Hide Market Amritsar purchased by him at the open auction within the specified time.
For all intents and purposes this appeal is for extension of time to deposit the balance purchase price.
126 Extension of time is an administrative matter for which no judicial action is called for.
Dismissed.
Inform the appellant accordingly".
The learned Single Judge pointed out that the above mentioned order of the Appellate authority was also void for contravening the provisions of Rule 105 as interpreted by a Full Bench of the High Court of Punjab in Hira Lal Kher vs The Chief Settlement Commissioner, New Delhi(1), so that it was the duty of the Settlement Commissioner, to fix a date for hearing and to inform the 'appellant it was not discharged.
Apparently, the appeal was decided without informing the contesting respondent Smt.
Rup Kaur when her appeal would be heard.
Rule 105, which was thus contra vened, provides: "105.
Provisions of Order XLI of the Code of Civil procedure apply to appeals and revisions.
Except as otherwise expressly provided in the Act or in these rules, the procedure laid down in order XLI of the Code of Civil Procedure 1908 (Act V of 1908) shall,.
so far as may be applicable, apply to the hearing and disposal of ap.peals and revisions and the Act".
Furthermore, extension of time was not just an "adminis trative matter".
The question whether Rup Kaur had made out a case for it or not should have been quasi judicially considered and decided.
Indeed, if provisions of the Civil Procedure Code were applied to these appeals and extension of time was only a relief sought, the discretion to grant it or refuse it had to be judicially and judiciously exercised.
The order was made on an apparently wrong assumption.
The learned single Judge had restored the position to what it was when the letter dated 11th September, 1959, was received by M.S. Grewal, the son and general attorney of Rup Kaur, and had directed the Managing Officer to proceed in accordance with Law.
After having heard Learned Counsel for both sides at some length, we are not satisfied that any injustice has been done to the appellant who will, no doubt, get back whatever money he may have deposited.
We think, that, in the circumstances of the case, it could not be said that the learned single Judge 's conclusion, that provisions of Rule 90 had not been complied with in dealing with the case of Rup Kaur, who had suffered injustice, was erroneous.
The learned Judge had stated his conclusion as follows: "A mere reading of the above quoted provision shows that one of the conditions precedent entitling the Rehabilitation Authorities to cancel the sale and to forfeit the initial deposit is the service on the auction purchaser of a notice specified in sub rule (11), sub rule (12) or sub rule (13) of rule.
The petitioner admittedly complied with the requirement of the notice under sub rule (12) of rule 90 (Annexure "F") and no notice in terms of the requirements of subrule (13) of rule 90 was ever admittedly issued to or (1) 127 served on the petitioner.
In these circumstances, the Rehabilitation Authorities has no jurisdiction whatsoever for cancelling the sale in favour of the petitioner on account of alleged non payment of the balance of the purchase price and for forfeiting the initial deposit made by her.
In this view of the matter, the impugned orders cancelling the sale in favour of the petitioner and forfeiting her initial deposit are wholly without jurisdiction and cannot possibly be sustained.
Errors of law in the orders of the Chief Settlement Commissioner and the order Rehabilitation Authorities are apparent on their face inasmuch as the said orders have been passed in absolute ignorance of the statutory provisions referred to above".
We, therefore, see no reason to interfere with the view taken by the High Court.
Consequently, we dismiss this appeal.
But, in the circumstances of the case, the parties will bear their own costs.
M.R. Appeal dis missed.

summary:
The property under dispute was put up for sale at two different auctions by the Managing Officer, Amritsar.
The Rehabilitation authorities cancelled the bid of the first auction purchaser Smt.
Rup Kaur, holding that she had failed to deposit the sale price in spite of issuing her a regis tered notice, and at the.
second auction the appellant 's bid was accepted.
In a petition filed under article 226, a Single Judge of the High Court found the findings of facts to be erroneous and the impugned order void, and granted a writ in favour of Smt.
Rup Kaur.
On appeal, the decision was upheld by a Division Bench of the High Court.
Dismissing the appeal the Court, HELD: (1) The High Court does not sit as a court of appeal to substitute its own judgment for that of the au thorities which are empowered to give their decisions, but apart from jurisdictional errors, the High Court may correct errors apparent on the face of the record.
An error to be apparent must be one which does not take prolonged arguments to bring it to the surface.
The Single Judge 's conclusion that provisions of Rule 90 of the Displaced Persons Compensation and Rehabilitation Rules, 1955, had not been complied with, was not erroneous.
[123C D. 126E F] S.L. Hegde & Ors.
M.B. Tirumale [1960] (1) SCR 890, ap plied Hiralal Kher vs The Chief Settlement Commissioner New Delhi , referred to.
(2) It is a settled rule of practice of this Court not to interfere with the ' exercise of discretionary powers of High Courts under article 226 of the Constitution merely be cause two views are possible upon the facts of a case.
For interference by this Court, the question must involve at least a matter of public or general importance or the injus tice suffered by an individual due to an error of law should be so gross as to touch the conscience of this Court in which case it would be deemed to be one of more than private importance.
[123E F]


judgement:
: Criminal Appeal No. 388 of 1976.
Appeal by Special Leave from the Judgment and Order dated the 26th & 27th July, 1976 of the Bombay High Court in Criminal Appeal No. 930/74.
Gobind Das, A.K. Mathur and A.K. Sharma for the Appellant.
M.N. Shroff for Respondent.
M.C. Bhandare, (Mrs.) Sunanda Bhandare, M.S. Narasimhan, K.C. Sharma and H.R. Khanna for both the parties.
The Judgment of the Court was delivered by KRISHNA IYER, J.
This criminal appeal, by special leave, raises a few questions of law under the (Act XXXV.
II of 1954) (for short, the Act), ingeniously urged by the appellants, a firm and its two partners, although the plea of 'guilty ' entered by the appellants before the trial court possibly as part of a 'plea bargaining ' which misfired at the appellate level makes short shrift of the exculpatory and extenuatory arguments urged by his counsel before us.
At the end of the weary forensic exercise we gathered what should have been told us first viz., that when the three accused were exam ined and charges read out they pleaded guilty, which would have abbreviated the hearing here had we known it earlier.
We proceed on the footing that the facts set out in the charge are true, that being the net price of a plea of guilt.
At this stage, the particulars and the setting of the prosecution facts need to be narrated.
On October 2, 1973 the Food Inspector of Nasik visited the small restaurant of the 'first accused firm at about 8.30 a.m., found a few litres of milk kept for sale and enquired about the quality of the milk.
He was told by accused NO. 3 (a partner Of the business, the other partner being his brother, accused No. 2) that it was cow 's milk.
Thereupon, he bought 660 mls of such milk from accused No. 3.
The statutory formalities under the Act were complied 104 with and one of the three sealed bottles was sent to the public Analyst from whom the report was received that (a) the milk was not cow 's but buffalo 's milk; (b) the fat deficiency was 16.3% and the milk contained 17.8% of added water.
A prosecution ensued, the Food Inspector was exam ined and cross examined and a charge was framed after the accused were questioned and their written statements filed into Court.
The charge read: "That you (accused nos.
1, 2 & 3) on or about the 2nd day of October 1973 at 8.30 a.m., at Nasik stored for sale adulterated buffalo milk with 16.3% of fat deficiency and 17.8% added water and also 'misbranded it as cow milk, and thereby committed an offence punishable under section 7(i) (ii) and 16(i) (A) (ii) within my cognisance.
" This charge elicited a plea of 'guilty ' from all the three accused.
Of course, each added that he did not sell 'raw milk ' and that the two brothers jointly ran the shop as a firm, that the said business was a small one where tea, milk and other articles were supplied, that the whole family, fifteen strong, lived on the paltry profits from the petty restaurant and so a lenient view be taken on sentence.
They further pleaded, in extenuation, that their servant pur chased the milk from the bazar, reported that it was cow 's milk and that it was on that basis that the accused told the Food Inspector that what was being sold was cow 's milk.
The trial Court, acting on the plea of guilt, convicted all the accused but viewed the offence as a somewhat venial devia tion where the adulteration, being only of water 'was not injurious to human health ' After adverting to a prior conviction of A 3 for a food offence, the Magistrate merci fully declined to apply the Probation of Offenders Act! The Magistrate observed in conclusion: 'It is necessary to give accused nos.
2 and 3 one more chance to improve themselves and do honest business '.
The firm, accused No. 1, was punished with.fine, accused nos.
2 and 3, the partners, also were ' punished under section 7(1) (ii) read with section 16(1) (e) (1) of the Act, each being sentenced to a fine of Rs. 500/ .
Even here, we may permit ourselves the stern remark that there is pathos and bathos in this manner of magisterial indulgence when society is the victim and the stakes are human health and, perhaps, many lives! It must be remem bered that the mandate of humanist jurisprudence is some times harsh.
The State appealed for enhancement of the sentence and the High, Court acceded and quashed the trial Court 's sen tence in allowance of the appeal and enhanced the punishment to.
six months ' imprisonment plus fine of Rs. 500/ each, the firm itself (A ) being awarded a fine only.
The basic factor which led to enhancement of the sen tence by the High Court was that, in the High Court 's view, the benefit of proviso (1) to section 16(1) stood repelled, and so the minimum sentence set by the statute was obligatory.
The learned Magistrate 's 'kindly ' eye overlooked this compulsive provision.
105 Wide ranging defences were valiantly urged by the appellants before us but without merit.
For, once a person pleads guilty and the Court accepts it, there is no room for romantic defences and irrelevant litanies based on the business being the mainstay of a large family, both broth ers, the only bread winners, being jailed, bazaar coming milk brought by the servant unwittingly turning out to be buffaloes ' milk and what not.
How can a factual contention of innocence survive a suicidal plea of guilt or tell tale contrition wash away the provision for minimum sentence ? Therefore, what is permissible is the sole legal submission that the offence falls under the proviso (i) to section 16(1) which, if good, relieves this Court from imposing the com pulsory minimum sentence of six months ' imprisonment if sound grounds therefore exist.
The desperate appellants, undaunted by one of them having been strained by a prior conviction for a food offence, half heartedly flirted with the misericordious submission that the Probation of Offend ers Act be applied to the economic offenders.
The futile plea has to be frowned off, being more a gamble in foolhardy courage than one showing fidelity to precedents or fairness to forensic proprieties.
We state it to reject it so that like delinquents may not repeat it later in similar circum stances.
True, petty milk vendors and poor victuallets, young apprentices in adulteration offences, trivial crimi nals technically guilty and others of their milk, especially when rehabilitation is feasible or repetition is impossible and the social circumstances promise favourable correctional results,_ may call, the compassionate attention of the Court to the provisions of the probation law unless Parliament pre empts its application by express exclusion (The law in this regard has since been tightened up).
Equally true, that a few guileless souls in the dock, scared by the some times exaggerated legal finality given to public analysts ' certificates and the inevitable incarceration awaiting them, may enter into that dubious love affair with the prosecution called 'plea bargaining ' and get convicted out of their own mouth, with a light sentence to begin with, running the risk of severe enhancement if the High Court 's revisional vigilance falls on this 'trading out ' adventure.
This Court has animadverted on this vice of 'plea bargaining ' in Mur lidhar vs State of Maharashtra(1).
Maybe, something like that happened here.
as was urged before us by Shri Gobind Das for the appellants, relying, as he did, on the circum stances that the accused had cross examined the prosecution witness as if he were innocent, added a rider to his plea of guilt and sown the seeds of a valid defence even as he was asking for mercy in punishment.
We do not explore the deeper import of the quasi compounding element or something akin to it, except to condemn such shady deals which cast suspicion on the integrity of food inspectors and the admin istration of justice.
This preliminary screening leaves for consideration only one legal plea for paring down the sentence plus adventi tious detection of another, built on the shortfalls in a slipshod certificate issued by the public analyst.
The sentencing scheme of the Act is this.
The offences under section 16(1) are classified in a rough and ready way and while all of them (1) 106 are expected to be viewed sternly carrying a standard prison sentence, a few of them are regarded as less serious in certain situations so that the Court, for socially adequate, individually ameliorative reasons,may reduce the punishment to below the statutory minimum.
The proviso (i) to s.16(1) takes care of this comparatively lesser class which may, for easy reference, be called 'proviso offences '.
This dichotomy of food crimes throws the burden on the Court of identifying the category to which the offence of the accused belongs.
This Court has earlier held and to this we will later revert that even if the offence charged falls under both the categories i.e, proviso offences and others, there being admittedly, some overlap in the definition the delin quent earns the severer penalty.
In this view, to earn the eligibility to fall under the proviso to section 16(1), the appellant must establish not only that his case falls posi tively under the offences specified in the said proviso but negatively that his facts do not attract any of the non proviso offences in section 16(1).
Adulteration of food is so dangerous and widespread and has so often led to large human tragedies, sudden or slow, insidious or open, that social defence compels casting of absolute liability on the criminal, even if the particular offence is committed with an unsuspecting mens.
To take risks in the name of very gullible dealers or very ignorant distributors, when the consequences may spell disaster on innocent victims, few or many, is legislative lackadaisical conduct, giving the wildest hostage to fortune.
So it is that mens rea is excluded and proof of actus reum is often enough.
The story of small restauranteurs unwittingly vending milk, as is alleged here, is irrelevant to culpability.
To quantum of sentence, personal circumstances may be relevant, subject to the minimum set.
But the perti nent query is, does the exception to the minimum set out in the proviso apply here ? Section 16(1 ) and proviso (i) may now be set out for facility of discussion: "16(1) If any person (a) whether by himself or by any other person on this behalf . or stores, sells or distributes any article of food (i) which is adulterated or misbranded or the sale of which is prohibited by the Food (Health) authority in the interest of public health; * * * * * * he shall, in addition to the penalty he may be liable under the provisions of section 6, be punishable with imprisonment for a term which shall not be less than six months but which may extend to six years, and with fine which shall not be less than one thousand rupees: Provided that (i) if the offence is under sub clause (i) of clause (a) and is with respect to an article of food which is 107 adulterated under sub cl.
(1) of clause (i) of section 2 or misbranded under sub clause (k) of clause (ix) of that section * * * * * the Court may for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months or of fine of less than one thousand rupees or of both imprisonment for a term of less than six months and fine of less than one thousand rupees.
" The key legal issue, as earlier indicated, is as to whether proviso (i) to section 16(1) takes in the offence in question.
Eligibility to the commiserative consideration set out in the said proviso depends on whether the adulteration of the article of food is of the species exclusively covered by sub cl.
(1) of section 2(i) or it is 'mis branded ' under subcl.
(k) of cl.
(ix) of that section.
We say 'exclusively ', for reasons which have been set out in Murlidhar(1).
One of us, in that ruling, has argued: "5.
It is trite that the social mission of food laws should inform the interpretative process so that the legal blow may fall on every adulterator.
Any narrow and pedantic, literal and lexical construction likely to leave loopholes for this dangerous criminal tribe to sneak out of the meshes of the law should be discouraged.
For the new criminal jurisprudence must depart from the old canons, which make indulgent presumptions and favoured constructions benefiting accused persons and defeating criminal statutes calculated to protect the public health and the nation 's wealth.
This humanist approach and cute construction persuades us to reject Shri Bhandare 's analysis of Section 2(1).
Sub clause (a) of Section 2(i) has a wide sweep and loyalty to the intendment of the statute forbids truncating its ambit.
There cannot be any doubt that if the article asked for is 100% khurasani oil and the article sold is 70% khurasani oil and 30% groundnut oil, the supply 'is not of the nature, substance or quality which it purports or is represented to be '.
The suggestion that there is no formal evidence of representations or prejudice as stated in the section does not merit consideration being a quibble over a trifle.
" x x x x "9.
Judicial compassion can play upon the situation only if the offence is under sub clause (i) of clause (a) of Section 16(1) and the adulteration is one which falls under subclause (1) of clause (i) of Section 2.
Secondly, the proviso also applies if the offence is under sub clause (ii) of clause (i), that is to say, the offence is not one of adulteration but is made up of a c ontravention of any of the other provisions of the Act or of any rule made thereunder.
In the present (1) 108 case we have already found that the accused is guilty of an offence of adulteration of food under Section 2(i) (a).
Therefore, proviso (ii) is out.
Proviso (i) will be attracted, according to Shri Bhandare, if Section 2 (i) (1) applies to the species of adulteration committed.
In our view, the only sensible understanding of proviso (i) is that the judicial jurisdiction to soften the sentence arises if the offence of adulteration falls only under sub clause (1) of clause (i) of Section 2 and we have held that it does not.
We cannot but deplore the clumsy draftsmanship displayed in a statute which affects the common man in his daily bread.
It is unfortunate that easy comprehensibility and simplicity for the laity are discarded sometimes through oversophisticated scholarship in the art of drawing up legislative bills.
It cannot be over stressed that a new orientation for drafting methodology adopting directness of language and avoiding involved reference and obscrurity is overdue.
Be that as it may, in the present case Section 2(i) (a) applies and Section 16(1)(a) has been breached.
Therefore the proviso cannot be applied in extenuation and the conviction of the High COurt has to be upheld.
" A similar reasoning has found favour with this Court (two of us were party thereto) in Prem Ballab vs State (Delhi Admn.)(1).
If the advantage of proviso (i) to section 16(1) is liable to be forfeited by the offence falling under any other definition in section 2 than 2(i) (1) or 2(ix) (k), the judicial focus turns on whether, in the present case, any other sub clause of section 2(i) or section 2(ix) is attracted.
The High Court has .taken the view that other sub clauses of section 2(i) than section 2(i) (1) apply and therefore the appellant is Out of Court in invoking the proviso to section 16(1).
There was much argument that addition of water to milk did not amount to 'adulteration ' within the meaning of section 2(i), (b) or (c) or (d).
Plausible submissions were made in that behalf by Shri Govind Das but obviously we do not agree.
However, the details of the debate at the bar can be skirted because the appellants, inescapably, fall under section 2(ix) (c) which reads: "2(ix) (c): 'misbranded ' an article of food shall be deemed to be misbranded if it is sold by a name which belongs to another article of food.
" Indisputably, what was sold was 'buffalo 's milk '.
Indeed, the Public Analyst 's Report indicates that what was seized and analysed was 'buffalo 's milk ', misbranded as cow 's milk an offence under section 2(ix) (C) of the Act and accused No. 2, Kisan Trimbak, has admitted, with a laconic 'no ', in answer to the question as to whether he had anything to say about the Report of the Public Analyst.
The third accused has followed suit.
The charge framed specifically mentions the offence under section 7(2) bearing on misbranding and the plea is one of 'guilt '.
Moreover, the evidence of P.W. 1, Food Inspector, also goes to show that the food sold was stated to be cow 's milk.
Misbranding, in the (1) Criminal Appeal No. 287 of 1971 decided on 15 9 76, 109 present case, cannot be and is not contended to be one under section 2(ix) (k) which deals with labelling in accordance with the requirements of the Act or the Rules.
That is not the offending sale in the present case which is one of lobbing off buffalo 's milk as cow, s milk.
The narrow point that survives is whether 'cow 's milk ' is an article of food different from 'buffalo 's milk ', so that the sale of one by using the name which belongs to the other can be said to attract section 2(ix) (c).
While 'milk ' is a generic term, the identity of the article of food.
is de pendent on the source.
'Cow 's milk ', 'buffalo 's milk ', 'goat 's milk ', camel 's milk ' 'horse 's milk ', 'donkey 's milk ' are all different from each other and are ' consumed by different sections of people, sometimes for ailment, some times for improving health and, in the case of 'horse 's milk ' for exhilaration and nourishment.
Shortly put, they are different articles of food and the name of one cannot be appropriated for the other by a seller without being tracked down by section 2(ix)c).
The housewife is a competent interpreter of statutes dealing with household articles; the consumers ' understanding of the expressions used in legislation relat ing to them is an input in judicial construction.
Law, in no branch, is an absolute abstraction or sheer mystique; it regulates the business of life and so its meaning must bear life 's impress.
Thus viewed 'cow 's milk ' is different from 'buffalo 's milk ' and misbranding is complete.
And worse, the species of misbranding is that under section 2(ix) (c).
Thus the conviction under 'section 16(1) (a) ' and the exclu sion of the proviso (i) are justified, subject to what we have to say about the Public Analyst 's Report and the criticism levelled thereon which bears on the guilt of accused No. 2.
A material circumstance which has been pressed before us not as a commisserative but as an absolvatory circum stance, is that only one of the accused (accused No. 3), according to the prosecution, was present when the misbrand ed article was sold to the Food Inspector and that accused No. 2 could not be found guilty of sale of a misbranded article of food by reading into the situation section 17 (1).
The short argument is that the liability of a partner of the firm, when another partner has committed the offence, de pends on the application of section 17 (1 ) or (2) of the Act.
Section 17(2) makes the absent accused vicariously guilty if 'it iS proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of the other partner '.
In the present case, there is no evidence led by the prosecution in proof of this requirement of mens rea against accused No. 2.
Which means that section 17(2) is inapplicable to create liability against accused No. 2.
Even so, section 17(1) may apply, if the absent accused is in charge of or responsible for the conduct of the business of the firm, the temporary absence of a partner at the time of the offending act being immaterial.
In the present case.
both the brothers have been in charge of the business and so the substantive part of section 17(1) will apply unless the proviso salvages the second accused.
This provi so reads: "Provided that nothing contained in this sub section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without 110 iris knowledge or that he exercised all due diligence to prevent the commission of such offence.
" If the accused concerned is absent at the time of the com mission of the offence and circumstances are eloquently such as to lead to the clear inference that there was no proof of scienter regarding the commission of the particular offence, knowledge being absent, immunity from conviction for that offence follows.
In the instant case, the 2nd accused was absent at the time the milk was sold.
Furthermore, the quantity of milk in the shop was bought from the bazar by the servant in the shop.
The crucial fact which ropes in the accused for the offence of 'mis branding ' under section 2(ix)(c) is that the article, when sold, was represented to be 'cow 's milk '.
This was an adventitious representation made on the spot by the third accused on his own, so far as the evidence discloses.
It is not as if the business of the brothers was to palm off buffalo 's milk as cow 's milk on unwary buyers.
Had there been a well grounded suggestion that this sharp practice had been resorted to more than once we would unhesitatingly have inferred knowledge of the misbranding even on the part of the absent partner.
Such is not the case and so the 2nd accused is entitled to acquittal on this charge.
Counsel for the appellants correctly criticised the inadequacy of the Public Analyst 's certificate.
Had there been a plea of 'not guilty ' we might have been forced to scrutinize how far the perfunctoriness of the Public Analyst has affected the substance of his conclusions.
It is not enough to give a few mechanical data.
It is more pertinent to help the court with something more of the process by which the conclusion has been arrived at.
We need not probe the matter further, notwithstanding the decisions reported in two English cases (cited before us)(1) because the plea of 'guilty ' silences the accused.
We accordingly dismiss the appeal, although we leave it to the State Government, having regard to the fact that the trade is petty, that the adulteration has not been shown to be by any noxious substance and that the harm done has not been of any magnitude, to consider whether it should exer cise the power of clemency to remit the sentence by three months so that it may be in tune with the provisions of the Act as recently amended.
These observations notwithstand ing, as aforesaid, the appeal stands dismissed.
V.P.S. Appeal dis missed.
(1) [1869] 1 Q.B.D. 202 & ,482.

summary:
Section 16(1)(a)(i) of the , provides inter alia that, if any person whether by himself or by another person on his behalf stores or sells any article of food, which is adulterated or misbrand ed,he shall, in addition to the penalty he may be liable under section 6, be punishable which imprisonment for a term which shall not be less than 6 months, etc.
The first proviso to the sub section provides that if the offence is under sub clause (i) of clause (a) and is with respect to an article of food which is adulterated under section 2(i)(1) or misbranded under section 2(ix)(k), the Court may, for any ade quate and special reasons, impose a sentence of imprisonment for a term less than 6 months.
Section 17(1) provides that where an offence under the Act has been committed by a firm every person who at the time the offence was committed was incharge of or responsible for the conduct of the business of the firm shall be deemed to be guilty of the offence.
The proviso to the sub section states that nothing contained in the sub section shall render any such person liable to any punishment if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent its commission.
Under section 17(2) notwithstanding anything contained in sub section
(1) where an offence under the Act has been committed by a firm and it is proved that the offence has been committed with the consent or connivance or is attributable to any neglect on the part of a partner, such partner shall be deemed to be guilty of the offence.
In the present case accused 2 and 3 were partners carry ing on the business of a small restaurant (accused 1).
The Food Inspector visited the restaurant and noticing some milk kept for sale enquired about its quality.
Accused 3 told him that it was cow 's milk.
The 2nd accused was then not present in the restaurant.
The Food Inspector then bought some of the milk from the 3rd accused and sent it to the Public Analyst after complying with the statutory formali ties.
The Public Analyst reported that the milk was buffa lo 's milk, that there was deficiency of fat and that the milk contained added water.
The three accused were charged with the offence punishable under section 7(i) and (ii) and section 16(1A)(ii).
They pleaded guilty and were sentenced to pay a fine.
On appeal by the State, the High Court, holding that the accused cannot invoke the proviso to section 16(1)(a)(i) enhanced the sentence on the 2nd and 3rd accused to the minimum term of imprisonment of 6 months.
Dismissing the appeal to this Court, HELD: (1) The Probation of Offenders Act is not applica ble to the accused in the circumstances of the case.
[109 G] (2) Addition of water amounts to adulteration within the meaning of section 2 (i) (b) (c) or (d).
[108 E] (3) To earn the eligibility to the benefit of the provi so to section 16(1)(a)(i) the accused must establish not only that his ease fails positively under the offences speci fied in the said proviso, but negatively, that his acts do not attract any of the non proviso offences in section 16(1).
The application of the proviso depends on whether the adultera tion or misbranding of the article is of the species exclu sively covered by section 2(i)(1) or section 2(ix)(k).
In judicial construction, the consumers ' understanding of legislative expressions is relevant and so viewed, 'Cow 's milk ' is different from 'buffalo 's milk '.
The misbranding therefore falls under section 2(ix)(c) which provides that an article shall be deemed to be misbranded if it is sold by a name which belongs to another article of food, 103 and does not fall under section 2(ix)(k).
Therefore, the exclu sion of the first proviso and the conviction of all the accused under section 16(1)(a) are justified.
[106 C; 107C; 109D] Murlidhar vs State of Maharashtra and Prem Ballabh vs State (Delhi Admn.) Criminal Appeal No. 287 of 1971 decided on 15 9 76, followed.
(4) The 2nd accused however is not guilty of selling the misbranded article.
The liability of a partner depends on the application of section 17(1) or (2).
Section 17(2) is not applicable to the absent 2nd accused as there is no evidence to prove the required mens rea set out in the sub section.
Though section 17(1) applies, the second accused would not be guilty of this charge because of the proviso to that sub section.
The evidence shows that the second accused was absent at the time of the sale, that the milk was bought from the bazar by the servant in the restaurant and that it was not as if the two accused were palming off buffalo 's milk and Cow 's milk, but the particular representation by the 3rd accused was an adventitious One, made by him on his own on the spot.
[109E F; 110 B] [The Public Analysts report should not be prefunctory giving a few mechanical data.
It should help the Court with something more of the process by which his conclusion has been arrived at].


judgement:
217 of 1955.
Under article 32 of the Constitution of India for the enforcement of Fundamental Rights.
N. C. Chatterjee, (Vir Sen Sawhney and Ganpat Rai, with him), for the petitioners.
Lal Narain Sinha, (Bajrang Sahai and section P. Verma, with him), for respondent No. 2. 1955.
October 28.
The Judgment of the Court was delivered by IMAM J.
The petitioners have filed this application under article 32 of the Constitution claiming that the buildings and lands as set out in the Schedule annexed to the petition and marked "A" (hereinafter referred to as the disputed properties) did not vest in the State of Bihar under the provisions of the 990 Bihar Land Reforms Act 1950 (hereinafter referred to as the Act).
Petitioner No. I in his individual capacity was at one time the owner, of the disputed properties which lie within Touzi No. 28 of the Collectorate of Hazaribagh.
On the 29th of December, 1947 petitioner No. I as owner leased out the disputed properties to a Company known as Mineral Development Ltd. (hereinafter referred to as the Company).
The Company took possession of the disputed properties and has been paying rent.
On the 7th of April, 1949 petitioner No. I in his individual capacity executed a deed of settlement whereby he transferred the disputed properties to three trustees, namely, himself and petitioners 2 and 3.
The Company has been paying rent to the trustees since then.
The Act came into force on the 25th of September, 1950.
On the 3rd of November, 1951 the State Government issued a notification under section 3(1) of the Act declaring that the estate of petitioner No. I in his individual capacity specified therein had passed to and become vested in the State.
On the 26th of October, 1953 a notice under section 4(h) of the Act was issued by the Collector to the Company, and on the 4th of March, 1954 the State Government issued a notification under section 3(1) of the Act purporting to vest in the State the properties covered by the above mentioned deed of settlement and another deed of settlement with which we are ' not concerned.
The Company instituted a title suit No. 33 of 1951 against the State of Bihar in the Court of the Subordinate Judge, Hazaribagh basing its claim on a mining lease executed by petitioner No. I in his individual capacity the genuineness of which was challenged by the State.
Petitioner No. I in his individual capacity was made a party to this suit.
The Company also instituted a title suit No. 9 of 1954 against the State of Bihar to which petitioner No. I in his individual capacity was made a party challenging the legality of the issue of notice dated 26 10 1953 under section 4(h) of the Act.
On the 11th of November, 1954 the State of Bihar filed title suit No, 53 of 1954 to which the Company, 991 petitioner No. I in his individual capacity, the three trustees and others were made parties.
By this suit the State of Bihar challenged the genuineness of the lease in favour of the Company and the deed of settlement in favour of the trustees.
The real question for determination is, what vested in the State on the publication of the notification under section 3 and by virtue of the provisions of section 4(a) of the Act? According to Mr. Chatterjee the disputed properties did not vest in the State, whatever else may have.
Having regard to the definition of "estate" in the Act, if anything vested in the State on the publication of a notification it was the land comprised in the notified estate.
Although the disputed properties stood on the land in the notified estate, they did not vest in the State, because the definition of "estate" speaks of land only and not of any building on it.
The notification under section 3 was a mere declaration and actual vesting took place under section 4(a).
On the date of vesting the disputed properties were not used as office or cutchery for the collection of rent of the notified estate of petitioner No. 1, who had parted with his right, title, and interest therein long before the Act was enacted and the publication of the notification under section: 3.
Mr. Sinha on behalf of the State of Bihar, on the other hand, contended that on a perusal of the provi sions of sections 4, 5 and 7 of the Act, it would appear that the Act contemplated something more than the ' land in an estate vesting in the State and the disputed ' properties could and did vest in the State on the publication of the notification under section 3.
In our opinion, it is of little consequence in the present case whether the notified estate vested in the State by reason of the publication of the notification under section 3 or by virtue of the provisions of section 4 of the Act, because in either case a vesting did take place.
Although the word land is used in the definition of "estate", the provisions of sections 4, 5 and 7 show the necessary intention to include something more than the land when an estate vests in the State.
Under section 4(a) it is not only the 992 estate but also buildings of a certain description and other things which vest in the State absolutely on the publication of a notification under section 3.
Under sections 5 and 7 the buildings mentioned therein also vest in the State, because the buildings in question are deemed to be settled by the State with the intermediary in possession.
This could only be on the supposition that these buildings vested in the State and the person in possession held the same as settlee under the State.
In the present case on the date of the publication of the notification under section 3 the disputed properties were said to be in the possession of the Company as lessee and the petitioner No. I had no right, title or interest therein as he had transferred his lessor 's reversion to trustees by a deed of settlement.
We may assume, therefore, that on the date of publication of the notification the disputed properties were not used primarily as office or cutchery for the collection of rent of the notified estate of petitioner No. 1 It.
becomes, therefore, necessary to interpret the word "used" occurring in section 4(a).
It is to be noticed that this clause of section 4 does not expressly state that a building used primarily as office or cutchery for the collection of rent must be so used at the date of the publication of the notification.
In this clause the words "used primarily as office or cutchery for the collection of rent of such estate" must be read in the light.
of the provisions of section 4(h) where similar words are employed.
Under section 4(h) the Collector has the power to make inquiries in respect of any transfer of any kind of interest in any building used primarily as office or cutchery for the collection of rent of such estate, if the transfer had been made at any time after the first day of January, 1946.
If on due inquiry the Collector is satisfied that such transfer was made with the object of defeating he provisions of the Act or causing loss to the State or obtaining higher compensation, then the Collector may, after giving notice to the parties concerned and hearing them and with the previous sanction of she State Government, annul the transfer and dis 993 possess the person claiming under it.
These provisions clearly indicate that if any building was used primarily as office or cutchery for the collection of rent and such building had been transferred after the first day of January, 1946, the transfer could be annulled if the circumstances mentioned in section 4(h) had been established.
That is to say, under. ' these provisions the use to which the building was put previous to its transfer after the first day of January, 1946 and not thereafter was what the Collector was concerned with and not to what use it had been put after its transfer after the first day of January, 1946.
To hold otherwise would be to make the provisions of section 4(h) meaningless.
When a proprietor transfers any such building ' it necessarily follows that the building thereafter was not used by him as office or cutchery for the collection of rent of his estate.
If the transfer was made before the first day of January, 1946 the provisions of section 4(h) would not apply and such a transfer would not be liable to be annulled and the building so transferred would not vest in the State on the date of the publication of the notification covering the estate on which such building stands.
If, on the other hand, this transfer was made after the first day of January, 1946, a building comprised in a notified estate, which was used immediately previous to the date of the transfer primarily as office or cutchery for the collection of rent of such estate the transfer would be liable to be annulled under section 4(h) and it would vest absolutely in the State on the publication of the notification and the provisions of section 4(a) must be read accordingly.
It would be unreasonable to construe the provisions of section 4(a) in the way suggested by Mr. Chatterjee.
The scheme of the Act has to be borne in mind and the provisions of sections 4(a) and 4(h) have to be read together.
The petitioners had not asserted in their petition that the disputed properties were not used as office or cutchery for the collection of rent of the notified estate of petitioner No. I before the first of January, 1946 or before the lease in favour of the Company.
On behalf 994 of the State, on affidavit, it has been stated that the disputed properties were all along used as cutchery before the creation of the lease and that they were not being used in connection with any mining operation.
In our opinion, if as a result of the inquiry under section 4(h) the transfer of the disputed properties by the petitioner No. I is annulled the disputed properties must be regarded as having vested in the State, because they were used as office or cutchery for the collection of rent previous to the transfers made by the petitioner No. 1.
It was next contended that section 4(h) is ultra vires the Constitution, because it imposed an unreasonable restriction on the fundamental right of the petitioners to realize rent from the Company, as the transfer in its favour was imperilled by the notice issued to it under section 4(h).
No appeal or review was provided in the Act against the order of the Collector issuing notice or an order of annulment made by him.
The Collector was left with absolute power to annul a transfer and to dispossess a person in possession thereunder.
Section 4(b), however, does direct the Collector to give reasonable notice to the parties concerned and to bear them.
Such annulment or dispossession which he may order, must be with the previous sanction of the State Government and he is compelled to do so on terms which may appear to him fair and equitable.
The power is, therefore, not quite so absolute or arbitrary as suggested.
Assuming, however, that the Collector has very wide powers, it is to be remembered that section 4(h) is a part of the law of acquisition of estates as enacted by the Act and is an integral part of the machinery by which acquisition of an estate takes place.
The Act is a valid law of acquisition and its whole purpose may be defeated unless there was some such provision as contained in section 4(b).
The Act being a law for acquisition of estates the question of it or section 4(h) of it imposing any unreasonable restriction on the fundamental rights of the petitioners does not arise.
In any event the Act including sect ton 4(h) is protected by article 31 A of the Constitution.
The petition is accordingly dismissed with costs.

summary:
On the 29th of December, 1947, petitioner No. 1 executed a lease to C (a company) of certain properties consisting of lands and buildings comprised in the estate belonging to him.
Subsequently, in 1949 he executed a deed of settlement whereby he transferred the properties to three trustees, namely, himself and petitioners 2 and 3.
Bihar Land Reforms Act, 1950 (Bihar Act XXX of 1950) came into force on the 25th of September, 1950, and on the 3rd of November, 1951, the State of Bihar issued a notification under section 3(1) of the Act declaring that the estate of petitioner No. 1 had passed to and become vested in the State.
A notice under section 4(h) of the Act was issued by the Collector to C and on the 4th of March, 1954, the State Government issued a notification under s.3(1) purporting to vest in the State the properties in question.
It was contended for the petitioners that the buildings standing on the land comprised in the notified estate did not vest in the State, on the ground (1) that the estate of the petitioner No. 1 did not vest in the State under section 3 of the Act but by virtue of the provisions of section 4, (2) that the definition of "estate" in the Act speaks of land only and not of any building on it, (3) that on the date of vesting, the buildings were not used as office or cutchery for the collection of rent of the notified estate within the meaning of section 4(a), and (4) that section 4(h) is ultra vires the Constitution as it imposes an unreasonable restriction on the fundamental right of the petitioners to realise rent from the company.
Held, that (1) whether the estate of petitioner No. I vested in the State by reason of the publication of the notification under section 3 or by virtue of the provisions of section 4 was of little consequence as in either case a vesting took place; (2) although in the definition of "estate" the word land is used and there is no mention of the word building, the provisions of sections 4, 5 and 7 show the intention of the legislature to include some 989 thing more than merely the land of a notified estate as vesting in the State.
Under section 4(a), buildings of a certain description and other things vest in the State absolutely on the publication of a notification under section 3.
Under sections 5 and 7, the buildings mentioned therein are deemed to be settled by the State with the intermediary and this could only be an the supposition that the buildings vested in the State, the intermediary being a settlee under the State; (3) sections 4(a) and 4(h) must be read together.
Under section 4(h), the use to which the building was put previous to its transfer after the first day of January, 1946, and not thereafter was what the Collector was concerned with and not to what use it had been put after its transfer after the first day of January, 1946.
If a transfer was made after the first day of January, 1946 of a building comprised in the notified estate which was used immediately previous to the date of transfer primarily as office or cutchery for the collection of rent of such estate the transfer would be liable to be annulled under section 4(h) and the building would vest absolutely in the State on the publication of the notification and the provisions of section 4(a) must be read accordingly; and (4) the Collector 's powers under section 4(h), wide as they are, are not quite so absolute or arbitrary as suggested.
section 4(h) is a part of a validly enacted law of acquisition of estates and is an integral part of the machinery by which acquisition of an estate takes place.
The Act or section 4(h) of it imposing any unreasonable restriction on the fundamental right of the petitioners, therefore, does not &rise.
The Act including section 4(h) of it, is protected by article 31 A of the Constitution.


judgement:
Appeal No. 2206 of 1968.
From the Judgment and Order dated the 29 3 1968 of the Rajasthan High Court in D.P. Civil W.P. No. 257/68.
S.M. Jain, for the appellant B. Dutta, for respondent No. 1 Miss Maya Rao, for respondents Nos. 2 5.
The Judgment of the Court was delivered by KHANNA, J.
This appeal on certificate is against the order of the Rajasthan High Court dismissing in limine the petition under articles 226 and 227 of the Constitution of India, field by the appellant against the ' Union of India, the State of Rajasthan and two others, praying for quashing the demand made from the appellant in respect of royalty.
The appellant took on lease 180 acres of land from the Government"of Rajasthan on June 18, 1962 for the purpose of mining gypsum ore for a period of 20 years.
Section 9(2) of the Mines and Minerals (Regulation and Development),Act, 1957 relates to.
royaltries in respect of mining leases.
According to that provision, the holder of a mining lease granted on or after the commencement 138 of the said Act shall pay royalty in respect of any mineral removed or consumed by him or by his agent, manager, employee, contractor or sub lessee from the leased area at the rate for the time being specified in the Second Sched ule in respect of that mineral.
The Second Schedule provides at item No. 13 the rate on which royalty, etc., in re spect of gypsum is to be paid.
According to that item at the relevant time, royalty would .be at the rate of Rs. 1.25 per tonne of gypsum containing 85 per cent and above CaSO42H20 and at the rate of 75 paise per tonne of gypsum containing less than 85 per cent of CaSO42H20.
Royalty was demanded from the appellant in respect of gypsum won by him at the rate of Rs. 1.25 per tonne.
The case of the appellant, however, is that the gypsum which was won by him contained less than 85 per cent of CaSO42H20.
As against that, the stand taken by the respondents is that the appellant failed to furnish.
the analysis reports from a standard laboratory to show that gypsum won by him contained less than 85 per cent CaSO42H20.
Revision filed by the appellant against the decision of the Rajasthan Government to charge royalty at the rate of Rs. 1.25 per tonne was dismissed by the Central Government.
The High Court dismissed the writ petition on the ground that it involved determination of disputed questions of fact.
It was also observed that the High Court should not in exercise of its extraordinary jurisdiction grant relief to the appellant when he had an alternative remedy.
After hearing Mr. Sobhagmal Jain on behalf of the appellant, we see no cogent ground to take a view different from that taken by the High Court.
There cannot, in our opinion, be any doubt on the point that the extent of purity of the gypsum won by the appellant is a question of fact.
It has also been brought to our notice that after the dismissal of the writ petition by the High Court, the appellant has filed a suit, in which he has agitated the same question which is the subject matter of the writ petition.
In our opinion, the appellant cannot pursue two parallel remedies in respect of the same matter at the same time.
Mr. Sobhagmal points out that the suit brought by the appellant has been dismissed in default and that an applica tion for the restoration of the suit has been filed in the trial court.
Learned counsel for the.
respondents state that they would not oppose the application for restoration of the suit.
We, therefore, dismiss the appeal but with no order as to costs.
M.R. Appeal dismissed.

summary:
The appellant had leased some land from the Government of Rajasthan for mining gypsum.
A dispute .arose between the parties regarding the rate of royalty payable by the appel lant.
The appellant 's revision petition against the les sor 's decision to charge at the higher rate was dismissed by the Central Government and then his writ petition was dis missed by the High Court on the grounds that the matter involved determination of disputed questions of fact, and that an alternative remedy has been availed of by the appel lant.
Dismissing the appeal the Court,.
HELD: The extent of purity of the gypsum won by the appellant is a question of fact. 'Furthermore, after the dismissal of the writ petition the appellant has filed a suit, in which he has agitated the same question which is the subject matter of the writ petition.
The appellant cannot pursue two parallel remedies in respect of the same matter at the same time.