judgement:
Appeal No. 618 of 1964.
Appeal from the judgment and decree dated November 29, 1960 of the Madras High Court in Appeal Suit No. 207 of 1957.
Sarjoo Prasad and M. section Narasimhan, for the appellants.
section V. Gupte, Solicit6r General and A. G. Ratnaparkhi, for respondents Nos. 1 and 2.
R. Ganapathy Iyer, for respondent No. 3.
The Judgment of the Court was delivered by Wanchoo, J.
This is an appeal on a certificate granted by the Madras High Court and arises in the following circumstances.
One Rangaswami Chettiar was a man of considerable property and used to live in Poolathur village.
He first married one Bappini and had a son by her.
But both the son and Bappani died.
He therefore married Ammathayee, who was defendant No. 2 in the suit and is appellant No. I before us.
He had a son and two daughters by her.
But unfortunately all the three children died.
Thereafter Rangaswami Chettiar married Lakshmiammal in 1943.
She was the first defendant in the suit.
It appears that no child was born to Lakshmiammal for about three years and therefore Rangaswami Chettiar married a fourth time.
His fourth wife was the sister of his second wife named Supputhayee.
In February 1949 Lakshmiammal gave birth to a son.
There is dispute as to the question whether Lakshmiammal had left her husband about 1945 or so because of frequent quarrels between the two.
Anyhow the fourth wife had also no children.
In June 1953 Rangaswami Chettiar fell ill.
He was first treated as an out patient in Batlagundu hospital and later admitted as an in patient.
On June 16, 1953 he executed a registered deed of gift in favour of his second wife Ammathayee of certain immovable joint family property.
Lakshmiammal when she came to know of this gift published a notice in a newspaper accusing the second and fourth wife of trying to deprive her and her minor son of their due share in the joint family property by having the gift deed executed and claimed that the gift deed was not valid.
On September 4, 1953, Rangaswami Chettiar sent a notice in reply to the notice published by Lakshmiammal.
Ili that notice Rangaswami Chettiar accused Lakshmiammal of having left Wm a year and a half after the marriage after quarrelling with him.
He also accused her of living a life of promiscuity thereafter.
Finally 355 he said in the notice that the son born to Lakshmiammal in Feb ruary 1949 was not his son.
Lakshmiammal gave a reply to this notice of Rangasmami Chettiar on September 15, 1953, in which she maintained that the child was Rangaswami Chettiar 'section She also claimed that Rangaswami Chettiar 's mind had been poisoned against her by his two other wives.
She denied that she had any connection with any other man besides Rangaswami Chettiar.
In, December 1963 Rangaswami Chettiar died.
The present suit was filed a year later on January 3, 1955 on behalf of the minor son.
He claimed half share in the joint family properties left by Rangaswami Chettiar.
To this suit the three widows who between them have half share were defendants Nos. 1, 2 and 3.
Three other defendants were made parties to the suit to whom we shall refer later as they are not concerned with the main controversy between the plaintiff and the two step mothers (i. e. second and third defendants).
The main defence of the two step mothers, who are now appel lants before us, was that the, plaintiff though born to Lakshmiammal was not the son of Rangaswami Chettiar and was therefore not entitled to any share in his properties.
Further Ammathayee pleaded that the gift deed in her favour was valid and that even if the plaintiff was the son of Rangaswami Chettiar he would be entitled to half share of the properties other than those gifted to her by R angaswami Chettiar before his death.
There were other issues in the suit, but we are not concerned with them in the present appeal.
On the main question, namely whether the plaintiff was the son of Rangaswami Chettiar, the trial court found in his favour.
Further on the question whether the gift deed in favour of Ammathayee was valid, the trial court was of opinion that it was not competent for Rangaswami Chettiar to make a gift of immovable joint family property to his wife.
The trial court therefore held the gift to be invalid and gave the plaintiff a decree for his half share in the pro perty left by Rangaswami Chettiar, including the properties gifted to Ammathayee before his death.
Thereupon the two step mothers went in appeal along with two other defendants and contested the finding of the trial court on both these issues.
The High Court however upheld both the findings.
On a consideration of the evidence, the High Court came.
to the conclusion that the heavy burden that lay on those who disputed the paternity of the plaintiff respondent in view of section 112 of the , No. 1 of 1872, had not been discharged in this case and it had not been proved that Rangaswami Chettiar had no access to Lakshmiammal on or about the time when the plaintiff respondent could have been conceived.
On the question of the gift deed, the High Court held that Hindu law did not permit a husband to gift joint family immovable property to his wife in 3 56 the circumstances in which the gift was made in this case.
The High Court therefore dismissed the appeal so far as the stepmothers of the plaintiff respondent were concerned.
The High Court however allowed the appeal of defendants Nos. 4 and 5 who were the brothers of the two step mothers of the plaintiffrespondent and set aside the decree of the trial court with respect to them by which they were made accountable.
There was also a crossobjection before the High Court with respect to certain properties which were in the possession of the sixth defendant.
That crossobjection was dismissed on the ground that the plaintiff respondent had failed to prove that those properties were joint family properties left by Rangaswami Chettiar.
Thereafter the two widows who are the appellants before us applied for and obtained a certificate to appeal to this Court as the decree of the High Court was that of variance, and that is how the matter has come before us.
The two main questions which have been argued before us are (i) whether the plaintiff respondent was the son of Rangaswami Chettiar, and (ii) whether the deed of gift was valid.
So far as the first question is concerned, there is a concurrent finding of the trial court as well as of the High Court that the plaintiffrespondent is the son of Rangaswami Chettiar.
Ordinarily therefore this Court would not interfere with this concurrent finding of fact.
But it is urged that the High Court did not accept the evidence on this point in the same measure as the trial court did, and that there are circumstances which should have led the High Court (when it did not accept the evidence in full) to hold that the plaintiffrespondent was not the son of Rangaswami Chettiar.
It is also urged that the High Court was in error in holding on the basis of section 112 of the Evidence Act that the paternity of the plaintiff respon,dent had been proved.
We are of opinion that there is no force in this contention.
The main evidence on behalf of the plaintiffrespondent was that of his mother, Lakshmiammal.
On the other hand the appellants relied on the notice sent by Rangaswami Chattiar to Lakshmiammal denying the paternity of the plaintiff respondent, and it is urged that a notice of this kind is very strong evidence rebutting the presumption that the plaintiff respondent is the son of Rangaswami Chettiar, and this is particularly so in the present case because Rangaswami Chettiar was keen on having a son and had married four times for that purpose.
He would not have thus denied the paternity of the son ]born to his third wife in the circumstances if that was true.
The High Court was not oblivious of the force of these circumstances.
But the evidence of Lakshmiammal was that she never quarrelled with her husband and that her husband married again because she did not give birth to a 357 child for about three years, and the fourth marriage of Rangaswami Chettiar took place with her consent.
She also said that she had not left the house of Rangaswami Chettiar and that the plaintiffrespondent was Rangaswami Chettiar 's son.
She further said that her co wives became jealous after the birth of the plaintiffrespondent to her and that is why they influenced Rangaswami Chettiar against her.
This evidence was relied upon by the trial court and the High Court has not disbelieved it.
It is also in evidence that Lakshmiammal was living in her father 's house in the same village as Rangaswami Chettiar, even according to the appellants ' witnesses and that Lakshmiammal 's father 's house was only a furlong away from Rangaswami Chettiar 's house.
It was in these circumstances that the High Court had to consider the question whether the heavy burden which lies on a person denying the paternity of a child born during wedlock had been discharged.
It is true that Rangaswami Chettiar had given the notice to Lakshmiammal in which he denied the paternity of the plaintiff respondent; but that notice stands in no better position than would have been the statement of Rangaswami Chettiar even if he was alive when this suit was fought out in the trial court.
Section 112 is in these terms "The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.
" It raises inter alia a conclusive presumption that a child born during the continuance of a valid marriage between his mother and any man is the legitimate son of that man, and this conclusive presumption can only be rebutted if it is shown that the parties to the marriage had no access to each other at any time when he could have been begotten.
The appellants therefore had to prove, as Rangaswami Chettiar would have had to prove even if he was alive when the suit was fought out in the trial court, that he had no access to Lakshmiammal at any time when the plaintiff respondent could have been begotten.
We have already said that even accord ing to the appellants Lakshmiammal was only living one furlong away in her father 's house from where Rangaswami Chettiar was living.
In these circumstances the evidence produced in the present suit falls far short of proving that Rangaswami Chettiar had no access to Lakshmiammal at any time when the plaintiff respondent could have been begotten.
We have therefore no hesitation in agreeing with the High Court, particularly taking into account the evidence of Lakshmiammal which has not been disbelieved by the High Court, that the appellants had completely failed to prove non 358 access of Rangaswami Chettiar to Lakshmiammal at any time when the plaintiff respondent could have been begotten.
In these circumstances there is no reason for us to interfere with the concurrent finding of fact as to the paternity of the plaintiff respondent and we hold that he is the legitimate son of Rangaswami Chettiar.
This brings us to the question of the validity of the gift deed ill favour of Ammathayee.
The gift deed begins with the following recital: "As you happened to be my second wife and in accordance with the promise made to you by my father, K. K. Ramasami Chettiar at the time of my marriage with you, and according to the directions given to me also to execute a document in your favour and also in consi deration of the affection you are having for me, and your obedient nature" and then follow the words making the gift of certain immovable properties in her favour.
According to the donee appellant, the value of this immovable property was about one tenth of the entire property left by Rangaswami Chettiar.
The argument on behalf of the donee appellant is that the gift was valid as it was of a reasonable portion of the immovable property, firstly because it was made by a husband in favour of a wife out of love and affection, and secondly because it was made by her husband to carry out the pious obligation that lay on him to fulfil the wishes of his father to make some provision for Ammathayee, which his father had indicated at the time of her marriage.
Hindu law on the question of gifts of ancestral property is well settled.
So far as movable ancestral property is concerned, a gift out of affection may be made to a wife, to a daughter and even to a son, provided the gift is within reasonable limits.
A gift for example of the whole or almost the whole of the ancestral movable property cannot be upheld as a gift through affection: (see Mulla 's Hindu Law, 13th Edn.
p. 252, para 225).
But so far as immovable ancestral property is concerned the power of gift is much more circumscribed than in the case of movable ancestral property.
A Hindu father or any other managing member has power to make a gift of ancestral immovable property within reasonable limits for "pious purposes", (see Mulla 's Hindu Law, 13th Edn.
para 226 p. 252).
Now what is generally understood by "pious purposes" is gift for charitable and/or religious purposes.
But this Court has extended the meaning of "pious purposes" to cases where a Hindu father makes a gift within reasonable limits of immovable ancestral property to his daughter in fulfilment of an antenuptial promise made on the occasion of the settlement of the terms of her 359 marriage, and the same can also be done by the mother in case the father is dead: [see Kamala Devi vs Bachu Lal Gupta.
(1)] In Guramma Bhratar Chanbassappa Deshmukh vs Malappa,(2) it was observed by this Court that "the Hindu law texts conferred a right upon a daughter or a sister, as the case may be, to have a share in the family property at the time of partition.
The right was lost by efflux of time.
But it became crystallized into a moral obligation.
The father or his representative can make a valid gift by way of reasonable provision for the maintenance of the daughter, regard being had to the financial and other relevant circumstances of the family.
By custom or by convenience, such gifts are made at the time of marriage, but the right of the father or his representative to make such a gift is not confined to the marriage occasion . .
Marriage is only a customary occasion for such a gift.
But the moral obligation can be discharged at any time, either during the life time of the father or thereafter." But we have not been referred to a single case where a gift by a husband to his wife of immovable ancestral property if made, has been upheld.
We see no reason to extend the scope of the words "pious purposes" beyond what has already been done in the two decisions of this Court to which reference has been made.
The contention of the donee appellant that the gift in her favour by her husband of ancestral immovable property made out of affection should be upheld must therefore fail, for no such gift is permitted under Hindu Law insofar as immovable ancestral property is concerned.
As to the contention that Rangaswami Chettiar was merely carrying out his father 's wishes when he made this gift in favour of his wife and that act of his was a matter of pious obligation laid on him by his father, we are of opinion that no gift of ancestral immovable property can be made on such a ground.
Even the father in law, if he had desired to make a gift at the time of the marriage of his daughter in law, would not be competent to do so insofar as immovable ancestral property is concerned.
No case in support of the proposition that a father in law can make a gift of ancestral immovable property in favour of his daughter in law at the time of her marriage has been cited.
There is in our opinion no authority to support such a proposition in Hindu law.
As already observed, a Hindu father or any other managing member has power to make a gift within reasonable limits of ancestral immovable property for pious purposes, and we cannot see how a gift by the father in law to the daughter in law at the time of marriage can by any stretch of reasoning be called a pious purpose, whatever may be the position of a gift by the father or his representative to a daughter at the time of her marriage.
One can understand such a gift being made to a daughter when she is leaving the (1) ; (2) ; 360 family of her father.
As it is the duty of the father or his representative to marry the daughter, such a gift may be and has been held by this Court to be for a pious purpose.
But we see no pious purpose for such a gift by a father in law in favour of his daughter in law at the time of marriage.
As a matter of fact the daughterin law becomes a member of the family of her father in law after marriage and she would be entitled after marriage in her own right to the ancestral immovable property in certain circumstances, and clearly therefore her case stands on a very different footing from the case of a daughter who is being married and to whom a reasonable gift of ancestral immovable property can be made as held by this Court.
Learned counsel for the donee appellant further refers to the fact that gifts made in token of love by her father in law to a daughter in law are permitted and become her stridhan property.
That is so.
But that does not mean that a father in law is entitled to make a gift of ancestral immovable property to a daughter inlaw so as to convert it into her stridhan.
Generally such gifts are of movable property.
But even if gifts of immovable property in such circumstances are possible,the two provisions must be read harmoniously.
If therefore Hindu law does not permit a father inlaw to make a gift of ancestral immovable property to his daughterin law, he cannot make such a gift for purposes of stridhan.
Further if gifts by the father in law to the daughter in law which become stridhan include gifts of immovable property, they can only refer to such immovable property as is not ancestral immovable property, for that is the only way in which the two provisions can be reconciled.
We have therefore no difficulty in holding that there is no warrant in Hindu law in support of the proposition that a father in4aw can make a gift of ancestral immovable property to a daughter in law at the time of her marriage.
If that is so, we cannot see how what the father in law himself could not do could be made into a pious obligation on the son as is claimed in this case, for that would be permitting indirectly what is not permitted under Hindu law directly.
Further in any case gifts of ancestral immovable property can only be for pious purposes, and we doubt whether carrying out the directions of the father in law and making a gift in consequence can be said to be a gift for a pious purpose, specially when the fatherin law himself could not make such a gift.
We are therefore of opinion that this gift cannot be upheld on the ground that Rangaswami Chettiar had merely carried out the wishes of his father indicated on the occasion of the marriage of Ammathayee.
The appeal therefore fails and is hereby dismissed with costs to to the plaintiff respondent.
Before we part with this appeal, we should like to refer briefly to the case of Natarajan Chettiar who was defendant No. 6 in the 361 trial court and is respondent No. 3 before us.
He was made a party with respect to certain properties in schedule D to the plaint.
His case was that the properties in schedule D were not liable to be partitioned.
This contention of his was upheld by the trial court.
That is why the decree does not provide for partition of D schedule properties.
It was therefore unnecessary for the appellants to make him a party to the present appeal unless the appellants claimed some relief against him.
Learned counsel for the appellants has stated that no relief is being claimed against Natarajan Chettiar respondent No. 3.
The appeal therefore must fail as against Natarajan Chettiar who will get his costs from the appellants but no hearing fee.
Further among the properties to be divided where a gold chain (item 6) and certain promissory notes (items Nos. 2 to 4) of schedule B. The trial court held that there was no proof that these items existed.
In the decree however this has not been made quite clear.
We therefore direct that the trial court will correct the decree to bring it into line with its finding on these items.
G. C. Appeal dismissed.

summary:
R was a man of considerable property.
He married four times.
The third wife bore him a son.
When R made a gift of some joint family property to his second wife the third wife gave a notice that the gift was not valid.
R, in his reply to the notice alleged, that she had deserted him and that the son born of her was not his.
These allegations were denied by the third wife.
After the death of R a suit was instituted by the said son claiming a half share of the property left by R. The two living step mothers, namely, the second and fourth wives of R contested the suit.
The questions were whether the plaintiff was the son of R and whether the gift deed was valid.
The trial court held on both points in favour of the plaintiff and the High Court also decided against the two step mothers who thereupon appealed to this Court.
The appellants contended that (1) the courts below had wrongly held the Plaintiff respondent to be the legitimate son of R (2) R,s gift of ancestral immovable property was valid because it was a gift for 'pious purposes.
HELD: (i) Section 112 of the Evidence Act raises, inter alia, a conclusive presumption that a child born during the continuance of a valid marriage between his mother and any man is the legitimate son of the man, and this conclusive presumption can only be rebutted if it is shown that the parties to the marriage had no access to each other at any time when he could have been begotten.
The appellants had completely failed to prove the non access of R to his third wife at any time when the plaintiff respondent could have been begotten.
In these circumstances there was no reason to interfere with the concurrent finding of the courts below that the plaintiff respondent was the legitimate son of R. [357 E F] (ii) The contention of the donee appellant that the gift in her favour by her husband of ancestral immovable property made out of affection should be upheld must fail because no such gift is permitted under Hindu Law insofar as immovable ancestral property is concerned.
The scope of the expression 'pious purposes ' cannot be extended to include such gifts.
[359 D] Kamala Devi vs Bachu Lai Gupta, ; and Guramma Bharatar Chanbassappa Deshmukh vs Malappa, ; , referred to.
(iii) Nor can the proposition be accepted that a father in law can make a gift of ancestral immovable property in favour of his daughter in law at the time of her marriage.
The case of a daughter in law who would become entitled to property in the father in law 's family in her own right stands on a very different footing from the case of daughter who is being married and to whom a reasonable gift of ancestral immovable property can be made.
[360 A B] The rule of Hindu law that gifts made in token of love by a fatherin law to his daughter in law are permitted and become the stridhan pro 354 perty must be taken to refer to gifts of movable properties and such immovable properties as are not joint family properties.
[360 C E] Ws gift of immovable ancestral property to his second wife could not therefore be considered to be valid even if it was in purported compliance with the wishes of his father at the time of her marriage.
[360 G H]


judgement:
Appeal No. 843 of 1966.
Appeal by special leave from the judgment and order dated February 25, 1965 of the Madhya Pradesh High Court in Misc.
petition No. 72 of 1965.
G. N. Dikshit, K. L. More and R. N. Dixit, for the appellant.
Niren De, Addl.
Solicitor General, R. Ganapathy layer and R. H. Dhebar and B. R. G. K. Achar, for respondents Nos.
1 4. section section Shukla, for respondent No. 5.
The Judgment of the Court was delivered by Mitter, J.
This is an appeal by special leave from a judgment and order dated February 25, 1965 of the Madhya Pradesh High Court at Jabalpur in Miscellaneous Petition No. 72 of 1965.
The High Court summarily dismissed the petition under article 226 of the Constitution praying for a writ of certiorari for quashing a notification issued in pursuance of sub sec.
(1) of section 10 of the in respect of the delimitation of certain Parliamentary and Assembly constituencies in the State of Madhya Pradesh.
The petition was rejected on the short ground that under article 329(a) of the Constitution the said notification could not be questioned in any court.
Article 329 which is relevant for our purpose reads: "Notwithstanding anything in this Constitution (a)the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under article 327 or article 328, shall not be called in question in any court;" Before us it was contended that the notification referred to is not law and secondly it was not made under article 327 of the Constitution.
The facts are shortly as follows: The petitioner is a resident of Ujjain and a citizen of India.
He had been a voter in all the previous general elections and still claims to be a voter in Daulatganj, Ward No. 5, in the Electoral Roll of Ujjain.
He claims 402 to have a right to contest the election to any Assembly or Parliamentary constituency in the State of Madhya Pradesh.
The impugned notification which was published in the Gazette of India Extraordinary on July 24, 1964 shows Ujjain as a Constituency ,reserved for the scheduled castes.
It was made in pursuance of sub section (1) to section 10 of the and recites that proposals of the Delimitation Commission for the delimitation of Parliamentary and Assembly constituencies in the State of Madhya Pradesh had been published on October 15, 1963 in the Gazette of India and in the official gazette of the State of Madhya Pradesh and that after considering all objections and suggestions the Commission determined that the territorial constituencies into which the State of Madhya Pradesh shall be divided for the purpose of elections to the House of the People and the extent of each such constituency shall be as shown in Table.
A. Respondent No. 1 to the petition was the Delimitation Com mission, respondent No. 2 was its Chairman and respondents Nos. 3 and 4 were its members.
The petition alleges many acts of omission and commission on the part of the Commission and its Chairman, but we are not here concerned with all that.
If we come to the conclusion that the High Court was not justified in rejecting the petition on the short ground noted above, we shall have to send the case back to the High Court for trial on merits.
According to the petitioner, Ujjain city has been from the inception of the Constitution of India a general constituency and by the fact of the city being converted into a reserved constituency his right to be a candidate for Parliament from this constituency has been taken away.
In order to appreciate the working of the Delimitation Com mission and the purpose which it serves reference must be made to the following Articles of the Constitution.
Article 82 provides that "Upon the completion of each census, the allocation of seats in the House of the People to the States and the division of each State into territorial constituencies shall be readjusted by such authority and in such manner as Parliament may by law determine: Provided that such readjustment shall not affect representation in the House of the People until the dissolution of the then existing House.
" This Article is a verbatim copy of clause (3) of article 81 of the Constitution before its amendment in 1956.
403 Article 327 of the Constitution provides that 'Subject to the provisions of this Constitution, Parliament may from time to time by law make provision with respect to all matters relating to, or in connection with, elections to either House of Parliament or to the House or either House of the Legislature of a State including the preparation of electoral rolls, the delimitation of consti tuencies and all other matters necessary for securing the due constitution of such House or Houses.
" It was argued before us that the , was not passed by Parliament under article 327, but under article 82 and as such courts of law are not precluded from entertaining the question as to the validity of a notification under the because of the opening words of article 329.
Article '82, however, merely envisages that upon the completion of each census the allocation of seats in the House of the People and the division of each State ' into territorial constituencies may have to be readjusted.
It is article 327 which enjoins upon Parliament to make provision by law from time to time with respect to all matters relating to or in connection with elections to either House of Parliament . delimitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses.
The preamble to the shows that it is an Act to provide for the readjustment of the allocation of seats in the House of the People to the States, the total number of seats in the Legislative Assembly of each State, the division of each State into territorial constituencies for elections to the House of the People and Legislative Assemblies of the States and for matters connected therewith Article 82 only foreshadows that readjustment may be necessary upon completion of each census, but Art ' 327 gives power to Parliament to make elaborate provision for such readjustment including delimitation of constituencies and all other matters connected therewith as also elections to either House of Parliament.
Section 3 of the (hereinafter referred to the Act) enjoins upon the Central Government to constitute a Commission to be called the Delimitation Commission as soon as may be after the commencement of the Act.
Section 4 of the Act provides that it is the duty of the Commission to readjust on the basis of the latest census figures the allocation of seats in the House of the People to the several States. and the division of each State into territorial, constituencies for the purpose of elections to the House of the People.
Section 8 of the Act makes it obligatory on the Commission to , 'determine by order, on the basis of the latest census figures, and .having regard to the provisions of articles 81, 170, 330 and 332, the 404 number of seats in the House of the People to be allocated to each State and the number of seats, if any, to be reserved for the Scheduled Castes and for the Scheduled Tribes of the State as also the total number of seats to be assigned to the Legislative Assembly of each State and the number of seats, if any, to be reserved for the Scheduled Castes and for the Scheduled Tribes of the State.
The delimitation of the constituencies is provided for in section 9, sub section
(1) of the Act which reads: "The Commission shall, in the manner herein provided, then distribute the seats in the House of the People allocated to each State and the seats assigned to the Legislative Assembly of each State to single member territorial constituencies and delimit them on the basis of the latest census figures, having regard to the provisions of the Constitution and to the following provisions, namely: (a) all constituencies shall, as far as practicable, be geographically compact areas, and in delimiting them regard shall be had to physical features, existing boundaries of administrative units, facilities of communication and public convenience; (b) every assembly constituency shall be so delimited as to fall wholly within one parliamentary constituency; (c) constituencies in which seats are reserved for the Scheduled Castes shall be distributed in different parts of the State and located, as far as practicable, in those areas where the proportion of their population to the total is comparatively large; and (d) constituencies in which seats are reserved for the scheduled Tribes shall, as far as practicable, be located in areas where the proportion of their population to the total is the largest.
" Under sub s.(2) of the section the Commission shall publish its proposals for the delimitation of the constituencies together with the dissenting proposals, if any, of an associate member, specify a date on or after which the proposals will be further considered and consider all objections and suggestions which may have been received by it before the day so specified.
Thereafter its duty is by one or more orders to determine the delimitation of Parlia mentary constituencies and the delimitation of assembly constituencies of each State.
Publicity is to be given to the orders of the Commission under section 10(1) of the Act.
Sub section (1) prescribes that each of its orders made under section 8 or section 9 is to be published in the Gazette of India and the official gazettes of the States con 405 cerned.
Sub section (3) provides that as soon as may be after such publication every such order shall be laid before the House of the People and the Legislative Assemblies of the States concerned.
The legal effect of the orders is given in sub sections
(2) and (4) of ' section 10 of the Act.
Under sub section
(2) "upon publication in the Gazette of India, every such order shall have the force of law and shall not be called in question in any court".
Under sub section
(4) (omitting the irrelevant portion) the readjustment of representation of the several territorial constituencies in the House of the People or in the Legislative Assembly of a State and the delimitation of those constituencies provided for in any such order shall apply in relation to every election to the House or to the Assembly, as the case may be, held after the publication in the Gazette of India of that order and shall so apply in supersession of the provisions relating to such representation and delimitation contained in the Representation of the People Act, 1950, and the Delimitation of ' Parliamentary and Assembly Constituencies Order, 1961.
It will be noted from the above that it was the intention of the, legislature that every order under sections 8 and 9 after publication is to have the force of law ' and not to be made the subject matter of controversy in any court.
In other words, Parliament by enacting section 10(2) wanted to make it clear that orders passed under sections 8 and 9 were to be treated as having the binding force of law and not mere administrative directions.
This is further reinforced by sub s.of s.10 according to which the readjustment of representations of the several territorial constituencies in the House of the People and the delimitation of those constituencies provided for in any such order (i.e. under section 8 or section 9) was to apply in relation to every election to the House held after the publication of the order in the Gazette of India and these provisions contained in the order were to supersede all provisions relating to such representation and delimitation contained in the Representation of the People Act,, 1950 and the Delimitation of Parliamentary and Assembly Constituencies Order, 1961.
In effect, this means the complete effacement of all provisions of this nature which were in force before the passing of the orders under sections 8 and 9 and only such orders were to hold the field.
Therefore although the impugned notification was not a statute passed by Parliament, it was a law relating to the delimitation of constituencies or the allotment of seats to such constituencies made under article 327 of the Constitution.
Our attention was drawn to Bill No. 98 or 1962 for providing; for readjustment of allocation of seats in the House of the People to the States, the total number of seats in the Legislative Assembly of each State, the division of each State into territorial constituencies for elections to the House of the People and Legislative 406 Assemblies of the States and for matters connected therewith and the statement of objects and reasons therefor as appearing in the Gazette of India Extraordinary, Part II, Section 2 of the year 1962 which mentions articles 82 and 170(3) of the Constitution.
The said statement further shows that as the 1961 census, had been completed a readjustment of the several matters earlier mentioned was necessary inasmuch as there had been a change in the popula tion figures from the 1951 census.
This, however, does not mean that the was a law made under article 82.
Article 82, as already noted, merely envisaged that readjustment might be necessary after each census and that the same should be effected by Parliament as it may deem fit, but it is article 327 which casts a duty on Parliament specifically to make provision with respect to all matters relating to or in connection with elections to either House of Parliament etc.
the delimitation of constituencies and all other necessary matters for securing the due constitution of such House or Houses.
With regard to section 10 (2) of the Act it was argued by counsel for the appellant that the order under section 9 was to have the force of law, but such order was not itself a law.
To support this contention our attention was drawn to a judgment of the Supreme .,Court of Canada in His Majesty the King vs William Singer(1).
There sub section
(2) of section 3 of the War Measures Act of 1914 provided, that all orders and regulations made under this section shall have the force of law and shall be enforced in such manner and by such courts, officers and authorities as the Governor in Council may person be and may be varied, extended or revoked by any subsequent order or regulation.
By section 4 of the Act the Governor in Council was empowered to prescribe the penalties that may be imposed for violating the orders and regulations under this, Act and also to prescribe whether such penalties shall be imposed upon summary conviction or upon indictment.
Purporting to act under the provisions of the War Measures Act the Governor in Council made an order to the effect that no retail druggist shall sell or supply straight, Codeine, whether in powder, tablet or liquid form, or preparations containing any quantity of any of the narcotic drugs mentioned in Parts 1 and 11 of the Schedule to the Opium and Narcotic Drug Act, mixed with medicinal or other ingredients, except upon the written order or prescription therefor signed and dated by a physician, veterinary surgeon or dentist.
The order further provided that any person found in possession of Codeine or preparation containing narcotic drugs mentioned in Parts 1 and 11 of the Schedule to the Opium and Narcotic Drug Act mixed with other medicinal or other in gradients, save and except under the authority of a licence from the Minister of Pensions and National Health shall be liable to the penalties provided upon (1) [1941] Canada Law Reports, 111.
407 Summary conviction under the provisions of section 4 of the Opium, and Narcotic Drug Act.
The opinion and narcotic Drug Act which was a Dominion ' statute contained a schedule wherein narcotic drugs were enumerated, but which up to the date of the order in question did not contain Codeine.
Under the provisions of that order a charge was laid against the respondent, a retail,druggist, that he did without lawful.
excuse disobey an Act of the Parliament of Canada for which No. penalty or other mode of punishment was expressly provided,.
to wit; Paragraph two of regulations dated 11th day of September, 1939, of the War Measures Act, by wilfully selling Codeine, a narcotic drug mentioned in Part Two of the Schedule to the Opium and Narcotic Drug Act without first having had and ob tained a written order or prescription therefor signed and dated by a physician, contrary to sec.
164, Criminal Code of Canada.
Section 164 of the Criminal Code enacted specifically that the offence must consist in wilfully doing any act which was forbidden or omitting to do any act which was, required to be done by an Act of the Parliament of Canada.
In his judgment Rinfret, J. observed: (page 114): "It is an Act of the Parliament of Canada which the guilty person must have disobeyed without lawful excuse." His Lordship agreed with the Trial Judge and with the majority of the Court of Appeal that in the premises section 164 of the Criminal ' Code had no application and said: "Of course, the War Measures Act enacts that the orders and regulations made under it "shall have the force of law.
It cannot be otherwise.
They are made to be obeyed and,.
as a consequence, they must have the force of law.
But that is quite a different thing from saying that they will be deemed to be an Act of Parliament.
" Taschereau,J. put the matter rather tersely (see at p. 124): "An order in Council is passed by the Executive Council, and an Act of Parliament is enacted by the House of Commons and by the Senate of Canada.
Both are entirely different, and unless there is a provision in the law stating that the Orders in Council shall be considered as forming part of the law itself, or that any offence against the regulations shall be a violation of the Act, it cannot be said that the violation of an Order in Council is a violation of an Act of Parliament within the meaning of section 164 of the Criminal Code.
" The observations from the judgment of Taschereau, J. point out he difference between something which has the force of law as. 408 distinguished from an Act of Parliament itself.
The Order in ,Council in the Canadian case, although it had the force of law, was not a provision contained in an Act of Parliament and therefore although there was a violation of the Order in Council there was no violation of any section of an Act of the Parliament of the Dominion of Canada.
Counsel for the appellant also drew our attention to the judgment of this Court in Sangram Singh vs Election Tribunal, Kotah, Bhurey Lal Baya.(1) There the Court had to consider the effect of section 105 of the Representation of the People Act, 1951 (Act XLIII of 1951) which provided that "every Order of the Tribunal made under this Act shall be final and conclusive".
The contention there put forward was that this provision put an order of the Tribunal beyond question either by the High Court under article 226 of the Constitution or by the Supreme Court in appeal therefrom.
It Was further submitted that the intention of the Legislature was that the decisions of the Tribunals were to be final on all matters whether of fact or of law, are they could not be said to commit an error of law when acting within the ambit of their jurisdiction.
They decided what the law was.
This submission was turned ,down by this Court and it was observed after referring to Hari Vishnu vs Ahmed Ishaque(2) that"the Court laid down in general terms that the jurisdiction under article 226 having been conferred by the Constitution, limitations cannot be placed on it, except by the Constitution itself." In this case we are not faced with that difficulty because the ,Constitution itself Provides under article 329(a) that any law relating to the delimitation of constituencies etc.
made or purporting to be made under article 327 shall not be called in question in any court. 'Therefore an order under section 8 or 9 and published under section 10(1) would not be saved merely because of the use of the expression " shall not be called in question in any court".
But if by the publication of the order in the Gazette of India it is to be treated as law made under article 327, article 329 would prevent any investigation by any court of law.
In dismissing the petition under article 226 of the Constitution the High Court of Madhya Pradesh relied exclusively on the decision of this Court in N.P. Punnuswami vs Returning Officer, Namakkal Constituency and others(3) which proceeded on the basis of certain ,concessions made.
There the appellant was a person who had filed a nomination paper for election to the Madras Legislative Assembly from the Namakkal constituency which was rejected. 'The appellant thereupon moved the High Court under article 226 (1) [1955] 2 S.C.R. p. 1 at pp.
6 and 7.
(2) [1955] 1 S.C.R. 1104.
(3) ; 409 of the Constitution praying for a writ of certiorai to quash the order of the Returning Officer rejecting his nomination paper and to direct the said officer to include his name in the list of valid nominations to be published.
The High Court dismissed the application on the ground that it had no jurisdiction to interfere with the order of the Returning Officer by reason of article 329 (b) of the Constitution.
The Court pointed out (at p. 225): "A notable difference in the language used in articles 327 and 328 on the one hand, and article 329 on the other, is that while the first two articles begin with the words "subject to the provisions of this Constitution", the last article begins with the words "notwithstanding anything in this Constitution".
It was conceded at the Bar that the effect of this difference in language is that whereas any law made by Parliament under article 327, or by the State Legislatures under article 328, cannot exclude the jurisdiction of the High Court under article 226 of the Constitution, that jurisdiction is excluded in regard to matters provided for in article 329.
" Reference was also made by counsel to certain other concessions which appear at pp. 233 and 237 of the report.
It will be noted, however, that the decision in that case did not proceed on the concessions made.
The Court examined at some length the scheme of Part XV of the Constitution and the Representation of the People Act, 1951 which was passed by the Parliament under article 327 of the Constitution to make detailed provision in regard to all matters and all stages connected with elections to the various Legislatures in the country.
It was there argued that since the Representation of the People Act was enacted subject to the provisions of the Constitution, it could not bar the jurisdiction of the High Court to issue writs under article 226 of the Constitution.
This was turned down by the Court observing: "This argument, however, is completely shut out by reading the Act along with article 329(b).
It will be noticed that the language used in that Article and in section 80 of the Act is almost identical, with this difference only that the Article is preceded by the words "notwithstanding anything in this Constitution".
(p. 232) The Court went on to observe at p. 233: "It may be pointed out that article 329 (b) must be read as complimentary to lause (a) of that Article Clause (a) bars the jurisdiction of the courts with regard to such law as may be made under articles 327 and 328 relating to the delimitation of constituencies or the allot ment of seats to such constituencies.
If Part XV of the 410 constitution is a code by itself, i.e., it creates rights and provides for their enforcement by a special tribunal to the exclusion of all courts including the High Court, there can be no reason for assuming that the Constitution left one small part of the election process to be made the subject matter of contest before the High Courts and thereby upset the time schedule of the elections.
The more reasonable view seems to be that article 329 covers all "electoral matters".
An examination of sections 8 and 9 of the Act shows that the matters therein dealt with were not to be subject to the scrutiny of any court 'of law.
Section 8, which deals with the readjustment of the number of seats, shows that the Commission must proceed on the ' basis of the latest census figures and by order determine having regard to the provisions of articles 81, 170, 330 and 332, the number of seats in the House of the People to be allocated to each State and the number of seats, if any, to be reserved for the Scheduled Castes and for the Scheduled Tribes of the State.
Similarly, it was the duty of the Commission under section 9 to distribute the seats in the House of the People allocated to each State and the seats assigned to the Legislative Assembly of each State to single member, territorial constituencies and delimit them on the basis of the latest census figures having regard to the provisions of the Constitution and to the factors enumerated in cls.
(a) to (d) of sub section
Sub section, (2) of section 9 shows that the work done under sub section
(1) was not to be final, but that the Commission (a) had to publish its proposals under sub section
(1) together with the dissenting proposals, if any, of an associate member, (b) to specify a date after which the proposals could be further considered by it, (c) to consider, all objections and suggestions which may have been received before the date so specified, and for the purpose of such consideration, to hold public sittings at such place or places as it thought fit ' It is only then that the Commission could by one or more order ' determine the delimitation of Parliamentary constituencies as also of Assembly constituencies of each State.
In our view, therefore, the objection to the delimitation of constituencies could only be entertained by the Commission before the date specified.
Once the orders made by the Commission under sections 8 and 9 were published in the Gazette of India and in the official gazettes of the States concerned, these matters could no longer be reagitated in a court of law.
There seems to be very good 'reason behind such a provision.
If the orders made under sections 8 and 9 were not to be treated as final, the effect would be that any voter, if he so wished, could hold up an election indefinitely by questioning the delimitation of the constituencies from court to court., Section 10(2) of the Act clearly demonstrates the intention of the ' Legislature that the orders under sections 8 and 9 published under 411 section 10 (1) were to be treated as law which was not to be questioned in any court.
It is true that an order under s.8 or 9 published under s.10(1) is not part of an Act of Parliament, but its effect is to be the same.
The situation here bears some comparison with what obtained in Harishankar Bagla and another vs The State of Madhya Pradesh.(1)There section 3 of the Essential Supplies (Temporary Powers) Act, 1946, provided that the Central Government, so far as it appeared to it to be necessary or expedient for maintaining or increasing supplies of any essential commodity, or for securing their equitable distribution and availability at fair prices, might by order provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.
Under section 4 it was open to the Central Government by notified order to direct that the power to make orders under section 3 shall, in relation to Such matters and subject to such conditions, if any, as may be specified in the direction, be exercisable also by such officer or authority subordinate to the Central Government or such State Government or such officer or authority subordinate to a State Government as may be specified in the direction".
Section 6 of the Act read as follows: "Any order made under section 3 shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or any instrument having effect by virtue of any enactment other than this Act." Under powers conferred by section 3 the Central Government pro mulgated on September 10, 1948, Cotton Textiles (Control of Movement) Order, 1948.
Section 3 of the said order provided that no person shall transport or cause to be transported by rail, road, air, sea or inland navigation any cloth, yarn or apparel except under and in accordance with a general permit notified in the Gazette of India by the Textile Commissioner or a special transport permit issued by the Textile Commissioner.
The appellant Harishankar Bagla and his wife were arrested at Itarsi by the Railway Police for contravention of section 7 of the Essential Supplies (Temporary Powers) Act, 1946 read with cl.
(3) of the Cotton Textiles (Control of Movement) Order, 1948 having been found in possession of new cotton cloth weighing over six maunds which was being taken by them from Bombay to Kanpur without any permit.
The State of Madhya Pradesh contended before this Court that the judgment of the High Court that section 6 of the Act was unconstitutional was not justified.
This contention was upheld by this Court and it was observed: "By enacting section 6 Parliament itself has declared that an order made under section 3 shall have effect notwithstanding any (1) M15Sup CI/67 13 412 inconsistency in this order with any enactment other than this Act.
This is not a declaration made by the delegate but the Legislature itself has declared its will that way in section 6 .
The power of the delegate is only to make an order under section 3 .
Once the delegate has made that order its power is exhausted.
Section 6 then steps in wherein the Parliament has declared that as soon as such an order comes into being that will have effect notwithstanding any inconsistency therewith contained in any enactment other than this Act.
" Similarly it may be said here that once the Delimitation Commission has made orders under sections 8 and 9 and they have been published under section 10(1), the orders are to have the same effect as if they were law made by Parliament itself.
Reference was also made by counsel for the respondent to the judgment of this Court in Kailash Nath and another vs State of U.P. and others.(1) There under section 4 of the U.P. Sales Tax Act the State Government was empowered either to exempt certain kinds of transactions from the payment of sales tax completely, or to allow a rebate of a portion of the tax payable.
In pursuance of that, the Uttar Pradesh Government issued a notification that with effect from December 1, 1949 the provisions of section 3 of the Act (relating to the levy of sales tax) shall not apply to the sales of cotton cloth or yarn manufactured in Uttar Pradesh, made on or after December 1, 1949 with a view to export such cloth or yarn outside the territories of India on the condition that the cloth or yarn is actually exported and proof of such actual export is furnished.
It was held by this Court that "this notification having been made in accordance with the power conferred by the statute has statutory force and validity and, therefore, the exemption is as if it is contained in the parent Act itself.
" In Jayantilal Amrit Lal Shodhan vs F. N. Rana and others(2) the question for consideration by this Court was the effect of a notification of the President of India under article 258(1) of the Constitution.
The President of India by a notification dated July 24, 1959, under article 258(1) of the Constitution entrusted with the consent of the Government of Bombay to the Commissioners of Divisions in the State of Bombay the functions of the Central Government in relation to the acquisition of land for the purposes of the Union.
Two new States were constituted by the Bombay Reorganisation Act (XI of 1960) and the Baroda Division was allotted to the State of Gujarat.
In exercise of the powers entrusted by the notification issued by the President on July 24, 1959, the Commissioner of the Baroda Division notified under s, 4(1) of the Land Acquisition Act (1 of 1894) the appellant 's land as being needed for a public purpose, A.I.R. 1957 S.C. 790.
(2) [1964] 5 S.C.R. p. 294. 413 and authorised the Special Land Acquisition Officer, Ahmedabad, to perform the functions of the Collector under the Act.
The Special Acquisition Officer after considering the objections raised by the appellant submitted this report to the Commissioner who issued a declaration under section 6(1) of the Act.
The appellant then moved the High Court of Gujarat under articles 226 and 227 of the Constitution for a writ, but his petition was dismissed.
His case inter alia was that the President 's notification under article 258 (1) was ineffective after the partition since the consent of the Government of the newly formed State of Gujarat to the entrustment of functions to its officer had not been obtained as required by, Art.258 (1).
Article 258 (1) of the Constitution reads: "Notwithstanding anything in this Constitution the President may, with the consent of the Government of a State, entrust either conditionally or unconditionally to that Government or to its officers functions in relation to any matter to which the executive power of the Union extends".
One of the contentions put forward before this Court was that the power exercised by the President was executive in character and the functions which might be entrusted to a State Government under article 258(1) were executive and as such entrustment of such executive authority was not law within the meaning of section 87 of the Bombay Reorganisation Act which made provisions for maintaining the territorial extent of the laws even after the appointed day.
On this basis, it was argued that the Commissioners of the new State of Gujarat after May 1, 1960 were incompetent by virtue of the Presidential notification to exercise the functions of the Union under the Land Acquisition Act.
It was observed by the majority Judges of this Court at p. 308: "The question which must be considered is whether the notification issued by the President is law within the meaning of section 87 read with section 2 (d) of the Bombay Reorgani sation Act, 11 of 1960." After analysing the three stages of the constitutional process leading to the ultimate exercise of function of the Union Government the Court observed (at p. 309): "By article 53 the executive power of the Union is vested in the President and is exercisable by him either directly or through officers subordinate to him in accordance with the Constitution and the executive power of the Union by article 73 extends subject to the provisions of the Constitution: (a) to the matters with respect to which Parliament has power to make laws; and 414 (b) to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreements: Provided that the executive power referred to in sub cl.
(a) shall not, save as expressly provided in the Constitution or in any law made by Parliament, extend in any State to matters with respect to which the Legislature of the State has power to make laws.
Prima facie, the executive power of the Union extends to all matters with respect to which Parliament has power to make laws and in respect of matters to which the power of the Parliament extends".
The Court then went on to consider the nature of the power exercised by the President under article 258(1).
It noted that by item 42 List III the subject of acquisition of property fell within the Concurrent List and the Union Parliament had power to legislate in respect of acquisition of property for the purposes of the Union and by article 73(1)(a) the executive power of the Union extended to the acquisition of property for the Union.
It was observed that "by article 298 of the Constitution the executive power of the Union extends to the carrying on of any trade or business and to the acquisition, holding and disposal of property and the making of contracts for any purposes.
The expression "acquisition, holding and disposal of property" would, in our judgment, include com pulsory acquisition of property.
That is a provision in the Constitution which within the meaning of the proviso to article 73(1) expressly provides that the Parliament may acquire property for the Union and consequently executive power of the Union in relation to compulsory acquisition of property is saved thereby, power of the State to acquire land notwithstanding.
" Reference was made also by the majority of Judges to the case of Edward Mills Co. Ltd. vs State of Ajmer(1) where it was held that an order made under section 94(3) of the Government of India Act, 1935 was, notwithstanding the repeal of the Government of India Act, 1935, by article 395 of the Constitution, law in force.
Finally, it held by the majority of Judges (p. 315): "We see no distinction in principle between the notification which was issued by the Governor General in Edward Mills ' case, and the notification with which we are dealing in this case.
This is not to say that every order issued by an executive authority has the force of law.
If the order is purely administrative, or is not issued in exercise of any statutory authority it may not have the force of law.
But where a general order is issued even by an executive (1) [955] 415 authority which confers power exercisable under a statute, and which thereby in substance modifies or adds to the statute, such conferment of powers must be regarded as having the force of law.
" In this case it must be held that the order under sections 8 and 9 published under section 10 (1) of the were to make a complete set of rules which would govern the re adjustment of number of seats and the delimitation of constituencies.
In this case the powers given by the and the work of the Commission would be wholly nugatory unless the Commission as a result of its deliberations and public sittings were in a position to re adjust the number of seats in the House of the People or the total number of seats to be assigned to the Legislative Assembly with reservation for the Scheduled Castes and Scheduled Tribes and the delimitation of constituencies.
It was the will of Parliament that the Commission could by order publish its proposals which were to be given effect to in the subsequent election and as such its order as published in the notifica tion of the Gazette of India or the Gazette of the State was to be treated as law on the subject.
In the instant case the provision of section 10 (4) of the Act puts orders under sections 8 and 9 as published under section 10 (1) in the same street as a law made by Parliament itself which, as we have already said, could only be done under article 327, and consequently the objection that the notification was not to be treated as law cannot be given effect to.
In the result the appeal fails and is dismissed with costs.
R.K.P.S. Appeal dismissed.

dataset_name: IN-Abs

summary:
By a notification of the Delimitation Commission dated July 24, 1964 issued in terms of section 10(1) of the , Ujjain City, which had been a general constituency, was notified as reserved for the Scheduled Castes.
The appellant who was a resident of Ujjain and a citizen of India, Mad a petition under article 226 praying for a writ of certiorari for quashing the notification on the ground that he had a right to be candidate for parliament from the Ujjain City constituency which had been taken away.
The petition was rejected by the High Court on the short ground that the notification could not be questioned in any court because under article 329(a) of the Constitution the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under article 327 or article 328, could not be called in question in any court.
In appeal to this Court it was contended on behalf of the appellant that the impugned notification, which was an order under section 9 and published in accordance with the provisions of section 10(1) of the Act, was not a law within the meaning of section 329; that in any event under section 10(2) such an order was to have the force of law but was not itself a law; and that the notification was not made under article 327 but article 82 of the Constitution.
HELD : dismissing the appeal, The impugned notification was a law relating to the delimitation of constituencies or the allotment of seats to such constituencies made under article 327 of the Constitution.
An examination of sections 8 and 9 of the Act showed that the matters therein dealt with were not to be subject to the scrutiny of any court of law.
Section 10(2) clearly demonstrates the intention of the legislature that the orders under sections 8 and 9 published under section 10(1) were to be treated as law which was not to be questioned in any court.
There was very good reason behind such a provision.
If the orders made under sections 8 and 9 were not to be treated as final, the result would be that any voter, if he so wished, could hold up an election indefinitely by questioning the delimitation of the constituencies from court to court.
[410 B C, G, H] Although an order under section 8 or section 9 published under section 10(1) is not part of an Act of Parliament, its effect is to be the same.
Section 10(4) puts such an order in the same position as a law made by the Parliament itself which could only be made by it under article 327.
[415 E] 401 Case law referred to.
Article 82 merely envisages that upon the completion of each census the allocation of seats in the House of the People and the division of each State into territorial constituencies may have to, be readjusted.
It is article 327 which enjoins upon Parliament to make provision by law from time to time with respect to all matters relating to or in connection with elections to either House of Parliament, delimitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses.
[406 C]


judgement:
Appeals Nos.
653 to 655 of 1964.
Appeals from the judgment and decree dated November 1, 1962 of the Allahabad High Court in Special Appeals Nos. 267 and 292 of 1957.
C. K. Daphtary, Attorney General, Shanti Bhushan, AdvocateGeneral, U.P. and 0.
P. Rana, for the appellants (in C.As.
Nos. 653 and 654 of 1964) and the respondents (in C.A. No. 655 of 1964).
A. K. Sen, B. R. L. Iyengar, V. P. Misra, section K. Mehta and K.L. Mehta, for the respondent (in C.As.
Nos. 653 and 654 of 1964) and the appellant (in C. A. No. 655 of 1964).
363 The Judgment of the Court was delivered by Sikri, J.
These appeals by certificates granted by the High Court of Judicature at Allahabad raise one principal question: Whether the amendment of the definition of the word "estate" in clause (8) of section 3 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the Reforms Act) made by section 2 of the Uttar Pradesh Zamindari Abolition and Land Reforms (Amendment) Act, 1963, hereinafter called the impugned Act, is within the definition of the word "estate" in article 31A(2) of the Constitution? These appeals arise out of a petition filed by Raja Anand Brahma Shah of Agori Barhar Raj under article 226 of the Constitution.
The State of Uttar Pradesh had issued a notification No. 3549/1/A 499 dated June 30 1953, extending the provisions of Reforms Act, 1950, to apply to the areas to the South of Kaimur Range.
It then issued another notification No. 3949/(1) A 4991949 dated July 1953, directing the vesting of all "estates" situated to the south of Kaimur including the Pargana Agori, owned by the petitioner.
The Pargana Agori is comprised of 123 villages.
At the time the petition was filed and the judgment of the Single Judge, dated November 8, 1957, was delivered, section 3(8) of the Reforms Act stood as follows . " 'Estate ' means the area included under an entry in any of the registers prepared and maintained under clause (a), (b), (c) or (d) of section 32 of the United Provinces Land Revenue Act, 1901, or in the registers maintained under clause (e) of the said section in so far as it relates to a permanent tenure holder and includes share in or of an estate.
" The case of the petitioner in short was that Pargana Agor was not an estate within section 3(8) of the Reforms Act because nor ecords were prepared and maintained under the provisions of section 32 of the Land Revenue Act, 1901, in respect of Pargana Agori, and the records alleged to have been prepared between 1840 to 1843 under the Bengal Regulations were unauthorised and the Government itself did not approve these records at any time.
The learned Single Judge, keeping in view the definition in section 3(8) of the Reforms Act, came to the conclusion that the whole of 81 villages, including the cultivated.
area, the forest, the hill and everything else would vest in the State of Uttar Pradesh.
He held that the Raja 's name alone was entered in the khewats of 64 villages, and in the khewats of 17 villages although the names of under proprietors were written, the Raja was the proprietor of the entire villages because the Raja 's name was mentioned as "Malik Ala".
With respect to the remaining 42 villages he held that only the areas mentioned in the khewats of the different villages and not the forests and hills attached to them Sup.
C.I/66 10 364 fell within section 3(8).
In the result he allowed the petition in part and issued a writ of mandamus directing the respondents not to take possession nor to interfere with the possession of the petitioner over the hills and jungle appertaining to the said 42 villages as distinguished from the areas mentioned in the khewats of these villages at the time the vesting order was issued.
He dismissed the rest of the claim.
The petitioner and the State of Uttar Pradesh both filed appeals, the petitioner claiming that the petition should be allowed in entirety, the State claiming that the petition should be dismissed.
During the pendency of the appeals (U. P. Act XIV of 1958) substituted the following new section 3(8) in the Reforms Act, with retrospective effect from July, 1952: "3(8) "Estate" means and shall be deemed to have always meant the area under one entry in any of the registers described in clause (a), (b), (c) or (d) and, in so far as, it relates to a permanent tenure holder in any register described in clause (e) of section 32 of the U. P. Land Revenue Act, 1901, as it stood immediately prior to the coming into force of this Act, or, subject to the restriction mentioned with respect to the register described in clause(e) in any of the registers maintained under section 33 of the said Act or in a similar register described in or prepared or maintained under any other Act, Rule, Regulation or Order relating to the preparation or maintenance of record of rights in force at any time and includes share in or of an "estate '.
Explanation : The Act, Rule, Regulation or order referred to in this clause shall include Act, Rule, Regulation or order made or promulgated by the erstwhile Indian State whose territories were merged or absorbed in the State of Uttar Pradesh prior to the date of vesting notified under section 4 of this Act.
" In the light of this definition the Division Bench came to the conclusion that only the areas expressly mentioned in the Khewats vested in the State.
It accordingly dismissed the appeals filed by the State and partly allowed the appeal of the petitioner.
The State filed two petitions for leave to appeal, one against the judgment in Special Appeal No. 267/1957 and the other against the judgment in Special Appeal No. 292/1957.
The Raja filed a petition for leave to appeal against the judgment in Special Appeal No. 267/1957.
The High Court granted three certificates on August 16, 1963, and three appeals are now before us, all arising out of the one petition under article 226 filed by the petitioner Raja.
On January 1, 1964, the English translation of the impugned Act (U. P. Act No. 1 of 1964) was published, it having received assent 365 of the President on December 31, 1963.
The relevant portion of the impugned Act reads as follows: "Section 2.
In the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter called the principal Act), in clause (8) of Section 3, the following proviso shall, with effect from the first day of July, 1952, be added before the explanation, and the notifications issued under the principal Act (including sections 2 and 4 thereof) or the U. P. Land Reforms (Amendment) Act, 1954 (including section I thereof) or the U. P. Land Reforms (Amendment) Act, 1956 (including section I thereof) or the U. P. Land Reforms (Amendment) Act, 1958 (including section I thereof) shall, notwithstanding any judgment, decree, determination or order of any Court be so construed as if the said proviso had, since the said date, formed part of the principal Act, as also of the definition of the word 'estate ' as given in the Uttar Pradesh Zamindari abolition and Land Reforms (Amendment) Act, 1958: Provided that in Mirzapur District each of the areas bounded as given in Schedule VII shall, notwithstanding anything contained in the foregoing definition, be deemed to be an estate.
After Schedule VI of the principal Act, the following new Schedule shall be added and be deemed to have been so added with effect from the first day of July, 1952.
Schedule VII [See proviso to clause (8) of section 3] 1.
The area known as Pargana Agori in district Mirzapur bounded in the North by the Kaimur Range confining with the villages Padaunian (also known as Parhwanian), Chingauri, Guraul (also known as Gurwal) Karaundia, Barauli, Dumkari Khirhata, Gadman, Khajraul (also known as Khajuraul) Dugauli, Baragaon, Jurauli, Jurauli Kulani, Rajpur, Raipura, Senduri, Raghunathpur, Bahawar, Basauli, Baghuwari, Lodhi, Raunp, Musahi, Churk and Urauli (also known as Arauli) of Pargana Barhar and villages Biranchuwa, Makri Bari, Pokhraundh, Lauwa, Cherui, Baghma, Markundi of Pargana Bijaigarh of district Mirzapur as far as the Western boundary of village Sasnai of Pargana Bijaigarh which then forms the boundary between Parganas Agori and Bijaigarh upto the point opposite the junction of the rivers Kanhar and Son and thence onward the River Son, forms its northern boundary.
366 in the east and south east by the territory of the State of Bihar; in the South by Tehsil Dudhi of District Mirzapur; in the South West and West by the territory of Madhya Pradesh (erstwhile Rewa State); but excluding village Kishun Chak, which is a separate estate within Pargana Agori and is bounded on the North, East and South by village Kon Khas and in the West by village Mohiuddinpur of District Mirzapur.
" The learned counsel for the State has raised three points before us in the two appeals filed by the State: (1) In view of the impugned Act, Pargana Agori is an "estate within the Reforms Act; (2) The High Court was in error in holding that on account of the mention of a wrong area in the khewat the entry cannot be said to be in respect of the entire area; (3) Naksha Pattidaris prepared by Rai Manak Chand in 1843 in connection with settlement operations constituted record of rights.
On the first point M On the first point Mr. A. K. Sen, the learned counsel for the Raja, contends that the impugned Act cannot be saved under article 31A because it has not been passed for agrarian reforms and, secondly, that the impugned Act includes an area within the definition of "estate" in the Reforms Act which is not an "estate" within article 31A(2).
He says that the validity of the acquisition under the Reforms Act must be judged in the light of article 31 and article 19.
article 31A(2) as enacted by Constitution (Seventeenth Amend ment) Act, 1964, reads as follows: "31A(2) In this article (a) the expression 'estate ' shall in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area and shall also include (i) any jagir, inam or muafi or other similar grant and in the States of Madras and Kerala any janmam right; (ii) any land held under ryotwari settlement; (iii) any land held or let for purposes of agriculture or for purposes ancillary thereto, including waste land, forest land for pasture or sites of buildings and other 367 structures occupied by cultivators of land, agricultural labourers and village artisans; (b) the expression 'right ' in relation to an estate, shall include any rights vesting in a proprietor, sub proprietor, under proprietor, tenure holder, raivat, under raivat or other intermediary and any rights or privileges in respect of land revenue.
" It is apparent from the definition that as far as the first part of clause (a) is concerned, we have to look to the meaning given to the expression "estate" or its local equivalent in an existing law relating to tenures.
We cannot have recourse to the meaning given in a law which is not existing law.
Existing law is defined in article 366(10) thus: " 'Existing law ' means any law, ordinance, order, bye law, rule or regulation passed or made before the commencement of this Constitution by any Legislature, authority or person having power to make such a law, Ordinance, order, bye law, rule or regulation;" Therefore, if the State desires to invoke article 31A and rely on the definition contained in the first part of clause (a) it must show that the area sought to be acquired is an "estate" within the definition contained in a law relating to land tenures passed before the commencement of the Constitution.
The relevant definition for our purposes is contained in section 4(4) of the U.P. Land Revenuie Act 1901.
It is not necessary to decide whether Pargana Agor ails within the definition of "Mahal" as we have come to the conclusion that Pargana Agori is a Jagir or Inam or a grant of a similar nature within clause (a) (i) of article 31A(2).
But before giving our reasons for this conclusion we will dispose of the contention of the learned counsel that Pargana Agori is an estate within cl.
(a) (iii) of that Article.
According to the learned counsel for the State any waste land or forest land would fall within clause (a)(iii) He says that it is not necessary that it should be held or let for purposes of agriculture or for purposes ancillary thereto.
In other words, he would rewrite clause (a)(iii) as follows: Clause (a) (iii) (A) any land held or let for purposes of agriculture or for purposes ancillary thereto, (B) any waste land, forest land for pasture, (C) sites of building and other structures occupied by cultivators of land, agricultural labourers and village artisan.
368 We are unable to read clause (a)(iii) in this way.
It seems to us that if this was the intention, cl.
(a)(iii) would have been split up and waste land, forest land and land for pasture would have figured separately in a separate clause.
There are vast areas of forest land and waste land in India and it is not to be expected that these would be included in the definition indirectly by expanding the word "land".
If this was the intention at least the word "including" would have been omitted and substituted by "any".
Further the whole object of article 31A is to carry out agrarian reforms and it 'is difficult to see how agrarian reforms can be furthered by the acquisition of every parcel of forest land or waste land.
In our opinion the word "including" is intended to clarify or explain the concept of land held or let for purposes ancillary to agriculture.
The idea seems to be to remove any doubts on the point whether waste land or forest land could be held to be capable of being held or let for purposes ancillary to agriculture.
We must, therefore, hold that forest land or waste land in the area in dispute cannot be deemed to be an estate within cl.(a)(iii) unless it was held or let for purposes ancillary to agriculture.
There is no dispute that the cultivated portion of Pargana Agori would fall within clause (a)(iii).
The next point is whether Pargana Agori is a Jagir, Inam or other similar grant within article 31A(2)(a)(i).
The learned counsel for the State relies on the following facts.
About the year 1744 A. D. Shambu Shah the then Raja of Agori was dispossessed of his domains by Raja Balwant Singh and he brought the estate to his own use.
It appears from Robert 's report that Raja Balwant Singh and his successor Chet Singh remained in possession for about 40 years.
During the insurrection of Chet Singh, Adil Shah, grandson of Shambu Shah, attended on Warren Hastings and made himself so useful that the Governor General gave him a sanad restoring him the Zamindari of Agori Barhar (vide Sherring Hindu Tribes Caste Vol. 1, pages 182 183)reproducedin Baijnath Prasad Singh vs
Taj Bali Singh(1) He helped the British in the military operations against Chet Singh thus: "Meanwhile the information of Chet Singh 's flight reached the Governor General at Chunar and a strong force was sent under Major Popham to take possession of Latifpur and then to reduce Bijaigarh.
The GovernorGeneral, after visiting Patita, returned to Ramnagar on September 28th, and after restoring confidence by the issue of proclamations of amnesty, formally installed Mahip Narayan Singh, the daughter 's son of Balwant Singh, as (1) A.I.R. 1917 All.
369 successor to Chet Singh.
Major Popham and his forces reached Latifpur without opposition and having garrisoned the place with two companies of sepoys under Captain Palmer, proceeded towards Bijaigarh, which he reached after a difficult and trying march.
A survey of the height of the fort immediately dispelled all idea of capturing it by escalade.
But the Raja of Agori, who had been expelled by Balwant Singh and was now seeking restoration to his ancestral domains, pointed out that the adjoining hill of Lowa Koh commanded the fort and was undefended.
Accordingly a battery was at.
once thrown up on Lowa Koh, as also on another hill to the north of the fort.
On the following day fire was opened from these batteries and resulted in the speedy silencing of the guns of the enemy, which were very ineffectively served." (vide District Gazetteer of Mirzapur page 237) The sanad is dated October 9, 1781, and the translation reads as follows: "Be it known to Azzat Asar (respected) Adal Singh, Zamindar Pargana Agori.
That on the basis of his application it has been learnt that the Zamindari of the aforesaid Pargana is his ancient hereditary property and that some years ago Raja Balwant Singh forcibly dispossessed him therefrom and himself took possession thereof Therefore, in view of Bargadam Haqeeq, he should be restored to his own rights so that he may carry on the settling and management of the aforesaid Pargana under the authority of the Amil and Rafat Wa Awali Martabat Raja Mahip Narain Bahadur (?).
It be considered as very urgent and be complied with accordingly.
Dated the 20th of Shawalul Mukarram, 1195 Hijri Qudsi, corresponding to the 9th of October, 1781, A. D. Qalmi.
" Another translation appears in Baijnath Prasad Singh vs Tej Bali Singh:(1) "Be it known to Adil Shah, respectable zamindar of Pergana Agori, that on a petition having been made, it is known that the zamindari in the pargana aforesaid is his old ancestral property.
Several years ago Raja Balwant Singh forcibly dispossessed him and brought it to his use.
Therefore, in lieu of former rights he should remain in proprietary possession of his share as heretofore.
He should make arrangements as regards the cultivation of the land and population of the pargana aforesaid in accordance with the directions of the Revenue Officer (1) A.I.R. 1917 All.
370 and Raja Mohit Narain Bahadur of high rank.
He is insisted on doing as directed above." On October 15, 1781, a sanad was granted to the petitioner 's ancestor Adil Shah granting him an Ultmagah Jagir of Rs. 8,001/from Fasli year 1189.
Adil Shah obtained possession of the Pargana with the assistance of the British troops.
On November 4, 1803, a sanad was granted to the petitioner 's ancestors granting a Jagir of Rs. 8,001/ per annum.
Mr. A. K. Sen contends that the sanad was set aside by resolution of the Governor General in Council dated April 1788 (see paragraph 16 of the G.O. No. 3824 of August 30, 1845 printed on page 97 of the Thomason Despatches).
He relies on this statement contained in the judgment of the High Court in Writ Petition No. 454/1955 dated November 2, 1962.
But this statement refers to the sanad dated October 15, 1781, and not to the sanad dated October 9, 1781, or the later sanad dated November 4, 1803.
It appears from the District Gazetteer (page 255) that as soon as Adil Shah obtained possession of the zamindari, Adil Shah really forfeited his claim to the assigned villages, the revenue of which was Rs. 8001/ and as possession had been obtained at the time of the general settlement in 1788 the Governor General in Council ordered the assignment to be resumed.
Adil Shah died in 1794 and the New Raja became involved in monetary difficulties.
Mr. Barton, the then Collector, made certain proposals and they were accepted at Calcutta and orders were issued to him to revise the assessment of Agori Barhar in such a way as to give the Raja a net profit of Rs. 8,001/ per annum or to allot him, in lieu thereof, a certain number of villages assessed to that amount.
Accordingly the revision of certain revenue paying villages took place, and in addition to the villages assigned by Mr. Duncan, certain others assessed to a sum of Rs. 4,000/ were made over to the Raja.
This arrangement brought taluqas Agori and Singrauli into the Raja 's possesssion, with the result that he became in 1804 both zamindar and jagirdar, or assignee of the Government demand, in taluqas Kon and Agori, Singrauli and 28 villages in Barhar.
Paras 11 to 15 of Robert 's report dated January 1, 1847, are to the same effect.
It seems to us clear from the above facts that Pargana Agori is still held under the sanad dated October 9, 1781, and the sanad dated November 4, 1803.
The second sanad is a grant of land revenue.
That is definitely a Jagir.
The learned counsel for the State contends that the fact that Adil Shah asserted a prior title may have been one of the reasons for the restoration of the zamindari, but it was in essence a new grant made on political considerations.
He further points out 371 that conditions are also laid down in the Sanad.
Adil Shah was enjoined to make arrangements regarding cultivation and population of the pargana and had to obey the directions of the revenue officer and Raja Mohit Narain ]Bahadur in this behalf.
As stated by this Court in Thakur Amar Singhji vs State of Rajasthan(1) "we do not find any sufficient ground for putting a restricted meaning on the word 'Jagir ' in article 31A.
At the time of the enactment of that Article the word had nearly acquired both in popular usage and legislative practice a wide connotation, and it will be in accord with sound canons of interpretation to ascribe that connotation to that word rather than an archaic meaning to be gathered from a study of ancient tenures.
" An inam is explained in Wilsons ' Glossary thus "A gift, a benefication in general, a gift by a superior to an inferior.
In India, and especially in the south, and amongst the Marathas, the term was especially applied to grants of land held rent free, and in hereditary and perpetual occupation; the tenure came in time to be qualified by the, reservation of a portion of the assessable revenue, or by the exaction of all proceeds exceeding the intended value of the original assignment; the term was also vaguely applied to grants of rent free land, without reference to perpetuity or any specified conditions.
The grants are also distinguishable by their origin from the ruling authorities, or from the village communities and are again distinguishable by peculiar reservations, or by their being applicable to different objects.
" In our opinion a grant by the British of lands for services.
rendered to them would be a grant falling within cl.
It seems to us that on the facts of the case the grant was in thenature of a grant similar to a Jagir or inam.
The fact that Balwant Singh and Chet Singh held possession of this Pargana for 40 years, cannot be ignored.
This shows that to all intents and purposes Adil Shah had lost the pargana and it was in effect a fresh grant in the nature of Jagir or inam for services rendered to the British.
Adil Shah 's assertion to title had not been verified.
Although it may be one of the reasons for the grant, it is clear that if it had not been for the grant and its enforcement by the British troop&, Adit Shah would not have been able to recover the possession of the Pargana.
His title to the pargana would rest on the grant and not.
the alleged previous title.
If it is held, as we do hold, that the area in dispute is a grant in the nature of Jagir or inam and consequently an estate within (1) ; 372 article 3 1A(2), the impugned Act can claim the protection of article 3 1A.
The notifications dated June 30, 1953, and July 1953, must therefore be upheld.
Mr. A. K. Sen further urges that the acquisition of the estate was not for the purposes of agrarian reforms because hundreds of square miles of forest are sought to be acquired.
But as we have held that the area in dispute is a grant in the nature of Jagir or inam, its acquisition like the acquisition of all Jagirs, inams, or similar grants, was a necessary step in the implementation of the agrarian reforms and was clearly contemplated in article 3 1 A.
In this view it is not necessary to decide whether the area in dispute is a Mahal or covered by section 3(8) of the Reforms Act as it existed in 1958 or earlier or any other question which was raised before us.
In the result the appeals filed by the State are accepted, the appeal filed by the petitioner Raja is dismissed and the petition under article 226 filed by the Raja is dismissed.
In the circumstances of the case there will be no order as to costs.

summary:
The State of Uttar Pradesh issued two notifications in 1953, by one of which the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, was extended to certain areas, in which, Pargana Agori which was owned by the respondent was situate, and by the other, it was directed that all " estates" in the area including the Pargana should vest in the State.
The respondent challenged the notifications by a writ petition on the ground that the Pargana was not an estate within section 3 (8) of the Act.
While the matter was pending in the High Court, the definition in section 3 (8) was amended by U.P. Act 14 of 1958, and while appeals were pending in this Court, by U.P. Act 1 of 1964, by which, the Pargana was deemed to be an "estate".
The amendments had retrospective effect from 1st July 1952.
The appellant State contended that Act 1 of 1964 could not be impugned because, the Pargana was an "estate ' either within article 3 1A(2) (a) or (iii).
HELD : The forest land or waste land in the Pargana could not be deemed to be an estate within article 3 1A(2) (a) (iii) unless it was held or let for purposes ancillary to agriculture.
But the entire Pargana is la grant in the nature of a jagir or inam, having been held by the respondent 's ancestor under sanads granting the land and the land revenue to him for services rendered to the British, and consequently, is an "estate, within article 31A(2) (a) (i) of the Constitution.
[368 D, 370 G H; 371 F H] Thakur Amar Singhji vs State of Rajasthan [1955] 2 S.C.R. 303, followed.
The acquisition of the Pargana was a necessary step in the implementation of agrarian reforms contemplated by article 31A.
Therefore, U.P. Act 1 of 1964 can claim the protection of article 31A, and the two notifications must be upheld.
[372 A C}