judgement:
ivil Appeal No. 18 of 1966.
Appeal by special leave from the judgment and decree, dated October 9, 1962 of the Madhya Pradesh High Court in First Appeal No 94 of 1959.
G.L. Sanghi and A.G. Ratnaparkhi, for the appellant.
I. N. Shroff, for respondent No. 1.
The Judgment of the Court was delivered by Sikri, J.
This appeal by special leave is directed against the judgment and decree of the Madhya Pradesh High Court allowing tile appeal of the State of Madhya Pradesh and dismissing the suit brought by the appellant, Badri Prasad hereinafter referred to as the plaintiff.
, The relevant facts for determining the points raised before us are these.
On December 27, 1950, a contract was entered into between Kumar Bharat Shah, minor, through iris guardian, and the plaintiff, in respect of forests in Mouza Sunderpani Jagir.
The terms were reduced to writing and an agreement was signed on January 21, 1951.
It is necessary to reproduce the agreement in extenso as it would be necessary to interpret it carefully.
"Deed of agreement executed by Shri Kumar Bharat Shah minor, guardian Shrimati Rani Umakuar Sahiba, Jagirdar of Mouza Sunderpani.
Conditions of contract, area, forest Mouza Sunderpani 1.
Out of the area of 1704.46 acres of Mouza Sunderpani Jagir contract of all the teak trees of more than 12 inches girth standing in the 1,000 acres of the forest of big trees and excluding those teak trees which have girth upto 12 inches is given to contractor Badri Prasad Moolchand firm of Timarni for a sum of Rs. 17,006 (seventeen thousand rupees), on payment of the amount in a lump sum.
In respect of the teak trees mentioned in paragraph No. 1 contractor Shri Badri Prasad deposited with me the total mount of Rs. 17,000 (seventeen thousand rupees), as under : Rs. 6,000 (Six thousand rupees) on 27 12 1950.
Rs. 11,000 (Eleven thousand rupees) on 21 1 1951.
Receipts have been passed for depositing the above amount.
382 3.
The transfer of the forest shall not be done without consent of the owner.
The contractor shall have to pay Rs. 100 (One hundred rupees), for transfer.
For the proper execution of work of the forest the felling of the forest shall have to be done from one side.
Excluding the teak trees upto the girth of 12 inches the cutting of those teak trees which are above that girth shall have to be serially done.
After felling, the stumps of teak trees should be 3 inches high from the ground and slanting so as to.
drain the water off.
It shall be necessary to prepare the stumps within a week.
Till the stumps are passed the wood cannot be removed.
Only the paring can be done.
The coupe guard shall make a hammer mark of passing on the stump and end of the pared wood.
The contractor shall have to get the transit of goods done by the coupe guard.
The contractor shall have to do.
the transit of goods through the license book and submit the monthly accounts.
Without licence no goods shall be transported out of the forest.
The contractor shall have to take care of the teak trees of 12 inches girth standing in the forest.
If damage is caused proper penalty shall be charged.
The contractor can appoint an agent with permission.
The contractor shall have to deposit Rs. 100 (One hundred rupees)for properly preparing the stumps of the teak trees of the forest before starting the work.
This amount shall be returned on completion of the work if the stumps are properly prepared; otherwise the expenses, which may be incurred shall be deducted.
The contractor shall be responsible for any damage caused to the forest by the contractor or his agent and he shall have to pay the penalty.
The period of the contract shall be 3 years, i.e., from 27 12 1950 to 27 12 1953.
Hence the agreement in execution and the same is The contractor and the owner of the forest On January 22, 1951, the Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (Madhya Pradesh Act 1 of 1951 ) hereinafter referred to as the Act received the assent of the President and was published in the Gazette on 383 January 26, 1951.
The plaintiff started working under the. contract in March 1951.
On March 31, 1951, a notification was issued vesting the estates in the State and the State Government prohibited the plaintiff from cutting timber in exercise of the rights under the contract.
Apparently negotiations took place between the State Government and the plaintiff, and on February 1, 1955, ' the Divisional Forest Officer wrote to the plaintiff as follows: Subject : Contract of big trees of Sunderpani village of Makrai State.
Reference : Memo No. 5424 4339 11, dated 21st October, 1954 of the Forest Department of Madhya Pradesh Government.
Kindly inform whether you are ready to any further Rs. 17,000 (seventeen thousand rupees), for the contract of big trees of Sunderpani village of Makrai Circle which (contract) is under dispute at present.
This contract can be given to you on this compromise only.
If you do not wish to pay this amount you may, in future, take any action you deem fit.
You may express your desire within seven days of the receipt of this letter.
If you fail to do.
this it will be presumed that you are not inclined to make a mutual compromise.
On receipt of your reply the State Government will be informed.
" It is this letter which the plaintiff contends was an offer and which he accepted by the following letter, dated February 5, 1955: "Subject: Contract of sale of teak trees in Sunderpani Forest in Makrai Range.
Reference : Your letter No. 180, dated 1st Feb. 1955 .
Dear Sir, I am ready to pay Rs. 17,000 provided my claim to have the refund of Rs. 17,000 already paid, from Shri Bharat Shah, the owner of the village or any other relief consequential to the judgment of that case remains unaffected.
I reserve my right to claim the said or like amount.
Subject to these conditions I shall pay Rs.17,000 as required in your above referred letter.
" By memorandum, dated October 24, 1956, the Government wrote to the plaintiff as follows: 384 "Reference : .Your application, dated 12th September, 1956, addressed to the Minister for Forests, Madhya Pradesh.
Government regret that the request made in your application under reference cannot be acceded to.
Your application has, therefore, been rejected.
" The application, dated September 12, 1956, is not included in the printed record but the plaintiff states that it is by this memorandum that the Government finally repudiated its obligations under the contract.
Thereupon the plaintiff filed the suit praying for a declaration that the rights granted to the plaintiff under the licence, dated January 21, 1951, had not been affected by the vesting of the estates in the State under the Act.
In the alternative he prayed that he was entitled to specific performance and delivery of the contract which was completed on February 5, 1955.
He further prayed that in case he was not entitled to these reliefs, Rs. 50,000 damages be awarded against the State.
Three points have been raised before us: (1) that the 'forest and trees did not vest in the State under the Act; (2) that even if they vested, the standing timber having been sold to the plaintiff did not vest in the State under the Act; (3) that a new contract was completed on February 5, 1955, and the plaintiff was entitled to specific performance of the contract.
The Act and the rights of persons holding contracts to cut and take away timber and fruits of the trees have been the subjectmatter of consideration by this Court on several occasions.
But the learned counsel for the plaintiff contends that none of those cases cover the case of the plaintiff because, according to him, none of those cases dealt with standing timber.
He says that the plaintiffs contract is a contract for the sale of goods and the property in the goods had vested in him and, therefore, it stands on a different basis from the contracts construed in the earlier cases.
The learned counsel for the respondents, on the other hand, maintains that the plaintiffs case is covered by the earlier decisions and all the arguments which he has advanced have been rejected by this Court in those cases.
The relevant statutory provisions of the Act are these: "Section 3.
Vesting of proprietary rights in the State. ( 1 ) Save as otherwise provided in this Act, on 385 and from a date to be specified by a notification by the State Government in this behalf, all proprietary rights in an estate, mahal, alienated village or alienated land, as the case may be, in the area specified in the notification, vesting in a proprietor of such estate, mahal, alienated village, alienated land, or in a person having interest in such proprietary right through the proprietor, shall pass from such proprietor or such other person to and vest in the State for the purposes of the State free of all encumbrances.
(2) After the issue of a notification under sub section (1), no right shall be acquired in or over the land to which the said notification relates, except by succession or under a grant or contract in writing made or entered into by or on behalf of the State; and no fresh clearing for cultivation or for any other purpose shall be made in such land except in accordance with such rules as may be made by the State Government in this behalf Section 4.
Consequences of the vesting. ( 1 ) When the notification under sec.
3 in respect of any area has been published in the Gazette, then, notwithstanding anything contained in any contract, grant or document or in any other law for the time being in force and save as otherwise provided in this Act, the consequences as hereinafter setforth shall, from the beginning of the date specified in such notification (hereinafter referred to as the date of vesting) ensue, namely : (a) all rights.
title and interest vesting in the proprietor or any person having interest in such proprietary right through the proprietor in such area including land ' (cultivable or barren), grass land, shrub jungle, forest, trees, fisheries, wells, tanks, ponds, water channels, ferries, pathways, village sites, hats, bazars and melas; and in all sub soil, including rights, if any, in mines and minerals, whether being worked or not, shall cease and be vested in the State for purposes of the State free.
of all encumbrances; and the mortgage debt or charge on any proprietary right shall be a charge on the amount of compensation payable for such proprietary right to the proprietor under the provisions of this Act . .
Section 5.
Certain properties to continue in possession of proprietor or other person.
Subject to the provisions in Sections 47 and 63 (a) all open enclosures used for agricultural or domestic purposes and in continuous possession for twelve ' 386 years immediately before 1948 49; all open house sites purchased for consideration; all buildings, places of worship; wells situated in and trees standing on lands included in such enclosures or house sites or land appertaining to such buildings or places of ownership; within the limits of a village site belonging to or held by the outgoing proprietor or any other person shall continue to belong to or be held by such proprietor or other person, as the case may be, and the land thereof with the areas ' appurtenant thereto.
shall be settled with him by the State Government on such terms and conditions as it may determine; (b) all private wells and buildings on occupied land belonging to or held by the outgoing proprietor or any other person shall continue to belong to or be held by such proprietor or other person; (c) all trees standing on land comprised in a homefarm or homestead and belonging to or held by the outgoing proprietor or any other person shall continue to belong to or held by such proprietor or other person; (d) all trees standing on occupied land other than land comprised in home farm or homestead and belonging to or held by a person other than the outgoing proprietor shall continue to belong to or be held by such person; (e) all tanks situate on occupied land and belonging to or held by the outgoing proprietor or any other person shah continue to belong to or held by such proprietor or other person; (f) all tanks, belonging to or held by the outgoing proprietor which are situate on land other than village site or occup ied land and in which no person other than such proprietor has any rights of irrigation, shall belong.
to or be held by such proprietor.
(g) all tanks and embankments (bandhans) belonging to or held by the outgoing proprietor or any other person which are situate on land other than village site occupied land and the beds of which are under cultivation of such proprietor or such other person shah "belong to or be held by such proprietor or such other person and the land under such tanks and embankments shall be settled with such proprietor or such other person on such terms and conditions as the State Government may determine; (h) all groves wherever situate and recorded in village papers in the name of the outgoing proprietor or any other person shall continue to belong to or be held 387 by such proprietor or such other person and the land under such groves shall be settled with such proprietor or such other person by the State Government on such terms and conditions as it may determine.
Section 6.
Certain transfers to be void.
(1) Except as provided in sub section (2), the transfer of any right in the property which is liable to vest in the State under this Act made by the proprietor at any time after the 16th March, 1950, shall, as from the date.
of vesting, be void.
" Let us now look at the decisions of thiS Court and see what has been laid down therein.
In Chhotabhai jethabai Patel vs The State of Madhya Pradesh,(1) which we may mention has since been overruled, the contract was in respect of the right to pluck, collect and carry away tendu leaves, to cultivate, culture and acquire lac, and to cut and carry away teak and timber and other species of tree and bamboos.
The Court observed: "It is clear from the provisions in the impugned Act that only those rights of the proprietor vest in the State which the proprietor had on the specified date . .
The scheme of the Act as can be gathered from the proviSions referred to above makes it reasonably clear that whatever was done before 16th March, 1950, by the proprietors by way of transfer of rights is not to be disturbed or affected, and that what vests in the State iS what the proprietors had on the vesting date.
If the proprietor had any rights after the date of vesting which he could enforce against the transferee such as a lessee or a licensee, those rights would no doubt vest in the State.
In all these petitions, the several contracts and agreements were before the date of vesting, and many of them were prior even to the 16th March, 1950.
The petitioners had taken possession of the subject matter of the contracts, namely, tendu leaves, lac palsadies, teak, timber and hardwood, bamboos and miscellaneous forest produce.
" The Court construed the contracts in that case thus: "The contracts and agreements appear to be in essence and effect licences granted to the transferees to cut, gather and carry away the produce in the shape of tendu leaves, or lac, or timber, or wood." The Court further held that the rights of the petitioners were not encumbrances within the meaning of the expression "free from encumbrances" in section 3 ( 1 ) of the Act.
The Court accordingly issued a writ prohibiting the State from interfering in any manner with (1) ; , 479, 481,483.
388 the enjoyment of those rights by the petitioner.
It may be mentioned that in that case the Court was dealing with an application under article 32 of the Constitution.
Chhotabhai 's(1) case was distinguished in Ananda Behera vs The State of Orissa(2) which again dealt with a petition under article 32 of the Constitution.
In Anand Behara vs The State of Orissa(2) the subject matter of licence was fishery rights and the Act which was construed was the Orissa Estates Abolition Act, 1951.
The Court held that the right sought to be acquired by the petitioners by their several purchases was not in respect of any future goods as claimed by them but was a license to enter on the land coupled with a grant to catch and carry away the fish, in other words, a profit a prendre which is immovable property within the meaning of the Transfer of Property Act read with section 3(25) of the General Clauses Act.
The Court further held that as it was an oral licence it contravened section 54 of the Transfer of Property Act, and therefore, no title or interest therein passed to the petitioners in that case.
The Court distinguished Chhotabhai 's(1) case on the following grounds: "It is necessary to advert to Firm Chhotabhai jethabai Patel & Co. vs The State of Madhya Pradesh(1) and explain it because it was held there that a right to 'pluck, collect and carry away ' tendu leaves does not give the owner of the right any proprietary interest in the land and so that sort of right was not an 'encumbrance ' within the meaning of the Madhya Pradesh Abolition of Proprietary Rights Act.
But the contract there was to 'pluck, collect and carry away ' the leaves.
The only kind of leaves that can be 'plucked ' are those that are growing on trees and it is evident that there must be a fresh crop of leaves at periodic intervals.
That would make it a growing crop and a growing crop is expressly exempted from the definition of 'immovable property ' in the Transfer of Property Act.
That case is distinguishable and does not apply here." In Mahadeo vs The State of Bombay,(a) which was again a petition under article 32 of the Constitution, Chhotabhai 's(1) case was not followed.
In flus case some of the proprietors had granted to the several petitioners rights to take forest produce, mainly tendu leaves, from the forests included in the Zamindaris belonging to the proprietors.
The agreements conveyed to the petitioners in addition to the tendu leaves other forest produce like timber, bamboos, etc., the soil for making bricks, and the right to build on and occupy land for the purpose of their business.
These rights (1) ; (2) ; (3) [1959] Supp. 2 S.C.R. 339.
389 were spread over many years but in the case of a few the period during which the agreements were to operate expired in 1955.
This Court held that the agreements required registration and pointed out that some aspects had not been brought to the notice of the Court in Chhotabhai 's(1) case.
Hidayatullah, J., as he then was, speaking for the Court observed: "But what was the nature of those rights, of the petitioners ? It is plain, that if they were merely contractual right then as pointed out in the two later decisions, in Ananda Behera vs The State of Orissa(2), Shantabai 's case(a) the State has not acquired or taken possession of those rights but has only declined to be bound by the agreements to which they were not a.party.
If, on the other hand, the petitioners were mere hcensees, then also, as pointed out in the second of the two cases cited, the licences came to an end on the extinction of the title of the licensers.
In either case there was no question of the breach of any fundamental rights of the petitioners which could support the petitions which were presented under article 32 of the Constitution.
" The Court then construed the agreements in question and came co the conclusion that the agreements could not be said to be contracts of sale of goods simply.
Then the Court examined the provisions of the Central Provinces I and Revenue Act and came to the following conclusion: "From this, it is quite clear that forests and trees belonged to the proprietors, and they were items of proprietary rights.
The first of the two questions posed by us, therefore, admits of none but an affirmative answer.
If then the forest and the trees belonged to the proprietors as items in their 'proprietary fights ', it is quite clear that these items of proprietary rights have been transferred to the petitioners.
The answer to the second question is also in the 'affirmative.
Being a 'proprietary right ', it vests in the State under sections 3 and 4 of the Act.
The decision in Chhotabhai 's(1) treated these rights as bare licences, and it was apparently given per incuriam and cannot therefore be followed.
" It seems to us that this decision concludes the controversy before us.
This decision was followed in State of Madhya Pradesh vs
Yakinuddin(4) Various agreements were construed in that case; one agreement was to propagate lac, another agreement was to (1) ; (2) ; (3) ; (4) ; 390 collect tendu leaves, and another agreement was with respect to a right to collect fruits and flowers of Mahua leaves.
It was contended that these rights were saved in view of the provisions of the Act, but this contention was negatived.
Sinha, C.J., speaking for the Court, observed that the distinction between a bare licence and a licence coupled with grant or profit a prendre was irrelevant because "whatever may have been the nature of the grant by the outgoing proprietors in favour of the respondents, those grants had no legal effect as against the State, except in so.
far as the State may have recognised them.
But the provisions of the Act leave no manner of doubt that the rights 'claimed by the respondents could not have been enforced against the State, if tiao latter was not prepared to respect those rights and the rights created by the transactions between the respondents and their grantors did not come within any of the saving clauses of section 5.
" Earlier he had observed that "any person claiming some interest as a proprietor or as holding through a proprietor in respect of any proprietary interest in an estate has got to bring his interest within section 5, because on the date of vesting of the estate, the Deputy Commissioner takes charge of all lands other than occupied lands and homestead, and of all interests vesting in the State under section 3.
Upon such taking over of possession, the State becomes liable to pay the compensation provided for in section 8 and,the succeeding sections.
The respondents have not been able to show that their interest comes under any of the clauses aforesaid of section 5." The last case in which this Act was construed was Mulamchand vs State of Madhya Pradesh(1).
In that case Mulamchand had purchased a right to pluck, collect and remove forest produce like lac, tendu leaves, etc., from the proprietors of the different Malguzari jungles.
This Court followed State of Madhya Pradesh vs Yakinuddin(2) and negatived the claim of Mulamchand to exercise his rights under the agreement.
In view of .these cases it is too late in the day to contend that the forest and the trees did not vest in the State under the Act.
There is no force in the contention of the learned counsel that under the contract the plaintiff had become owner of trees as goods.
It is true that trees which are agreed to be severed before sale or under the contract of sale are "goods" for the purposes of the .
But before they cease to be "proprietary" rights or interest in proprietary rights within the meaning of sections 3 and 4(a) of the Act they must be felled under 1 the contract.
It will be noticed that under cl. 1 of the contract (1) Civil Appeal No. 393 of 1965 dated February 20, 1968.
(2) ; 391 the plaintiff was entitled to cut teak trees of more than 12 inches girth.
It had to be ascertained which trees fell within that description.
Till this was.
ascertained, they were not "ascertained goods" within section 19 of the .
Clause 5 of the contract contemplated that stumps of trees, after cutting, had to be 3 inches high.
In other words, the contract was not to sell the whole of the trees.
In these circumstances property in the cut timber would only pass to the plaintiff under the contract at the earliest when the trees are felled.
But before that happened the trees had vested in the State.
This brings us.to the last point, namely, whether a new contract was concluded between the Government and the plaintiff.
It is extremely doubtful whether the letter, dated February 1, 1955, is an offer.
It seems to be an invitation to the plaintiff to make an offer.
Be that as it may, even if it is treated as an offer there was no unconditional acceptance by the letter, dated February 5, 1955.
The plaintiff expressly reserved his right to claim a refund of Rs. 17,000.
.According to the letter of the Divisional Forest Officer, dated February 1, 1955, the plaintiff had to give up his claim to Rs, 17,000 which he had already paid and had to pay a further sum of Rs. 17,000.
The High Court, in our opinion, rightly held that the alleged acceptance of the offer made on February 1, 1955, was conditional and qualified.
In the result the appeal fails and is dismissed with costs.
V.P.S. Appeal dismissed.

summary:
The appellant entered into a contract in respect of certain forests in a Jagir in Madhya Pradesh.
Under el. 1 of the contract, he was entitled to cut teak trees of more than 12 inches girth.
Under cl. 5, the stumps of trees after cutting, had to be 3 inches high.
After the passing of the Abolition of Proprietary Rights (Estates, Mahals.
Alienated Lands) Act, 1950 a notification was issued vesting the estate in the State.
and the appellant was prohibited from cutting timber in exercise of his rights under the contract.
After some negotiations, a letter was written on February 1, 1955, to the appellant, on behalf of the State, that the appellant 's claim to cut trees under the contract would be considered only if he gave up his claim to a sum of Rs. 17,000 which he had already paid under the contract and was willing to pay a further sum of Rs. 17,000.
The appellant, by his letter dated February 5, 1955 expressed his willingness to pay the additional sum but reserved his right to claim a refund of the first sum.
The State Government rejected the appellant 's right to cut trees.
He then filed a Suit claiming specific performance of the contract on the grounds: (1) The forest and trees did not vest in the State under the Act; (2) Even if they vested, the standing timber, having been sold to the appellant, did .not vest in the State; and (3) In any event a new contract was completed on February 5, 1955, and the appellant was entitled to its specific performance.
In appeal to this Court, HELD: (1) The forest and trees vested in the State under the Act.360 F G] Mahadeo vs State of Bombay, [1959] Supp.
2 S.C.R. 339; State of M.P.v.
Yakinuddin; , and Mulamchand vs State of M.P., C.A No 393 of 1965 dated February 20, 1968, followed.
(2) Under the contract the appellant had not become the owner of the trees as goods.
The property in the timber could pass to the appellant only when the trees are felled, but before they were felled, the trees had vested in the State.
[391 B] Under el.
5 of the contract there was no sale of the whole of the trees, and, under cl. 1 it had to be ascertained which trees fell within the description of trees which the appellant was entitled to cut.
Till that was done they were not 'ascertained goods ' within section 19 of the .
[391 A B] (3) Even if the letter of ist February could be treated as an offer, there was no unconditional acceptance of the offer, because, there was 381 a reservation by the appellant of his right to claim refund in his letter dated 5th February and hence there was no concluded contract.
[391 C D]


judgement:
ivil Appeal No. 778 of 1966.
Appeal by special leave from the order, dated May 25, 1965 of the Punjab High Court in Letters Patent Appeal No. 146 of 1965.
S.V. Gupte and Naunit Lal, for the appellant.
A.K. Sen, S.C. Mohatta and A.D. Mathur, for respondent No 1.
V. C. Mahajan and R.N. Sachthey, for respondent Nos. 2, 3 and 4.
The Judgment of the 'Court was delivered by Sikri, J.
This appeal by special leave is directed against the judgment and order of the High Court of Punjab in Letters.
Patent Appeal No. 146 of 1965 whereby the High Court dismissed in limine the Letters Patent Appeal filed by the appellant Surja against the judgment of the learned Single Judge allowing the writ petition filed by the respondent, Hardeva.
The relevant facts for determining the points raised before us are as follows; Hardeva, respondent before us, is a big landlord of village Panniwala Mota in Sirsa Tahsil of Hissar District.
Surja, the appellant, was an old tenant of Hardeva and had been cultivating the land in dispute since about 1949.
Section 18 of the Punjab Security of Land Tenures Act, 1953 (Punj.
Act X of 1953) hereinafter referred to as the Act entitles a tenant of a land owner other than a small land owner to purchase from the land owner .the land held by him, but not included in the reserved area of the land owner if he satisfies the conditions laid down in that section.
Section 18(1) & (2) may be set out.
450 "18(1) Notwithstanding anything to the contrary 'contained in any law, usage or contract, a tenant of a land owner other than a small land owner (i) who has been in continuous occupation of the land comprised in his tenancy for a minimum period of six years, or (ii) who has been restored to his tenancy under the provisions of this Act and whose periods of continuous occupation of the laud comprised in his tenancy immediately before ejectment and immediately after restoration of his tenancy together amounts to six years or more, or (iii) who was ejected from his tenancy after the 14th day of August 1947, and before the commencement of this Act, and who was in continuous occupation of the land comprised in his tenancy for a period of six years or ,more immediately before his ejectment, shall be entitled to purchase from the land owner the land so held by him but not included in the reserved area of the land owner, in the case of a tenant falling within clause (i) or clause (ii) at any time, and in the case of a tenant falling within clause (iii) ' within a period of one year from the date of commencement of this Act; Provided that no tenant referred to in this subsection shall be entitled to exercise any such fight in respect of the land or any portion thereof if he had sublet the land or the portion, as the case may be, to any other person during any period of his continuous occupation, unless during that period the tenant was suffering from a legal disability or physical infirmity, or, if a woman, was a widow or was unmarried; Provided further that if the land.
intended to be purchased is held by another tenant who is entitled to preempt the sale under the next preceding section, and who is not 'accepted by the purchasing tenant, the tenant in actual occupation shall have the right to pre empt the sale.
(2) A tenant desirous of purchasing land under sub section (1) shall make an application in writing w an Assistant Collector of the First Grade having jurisdiction over the land concerned, and the Assistant Collector, after giving notice to the land over and to all other persons interested in the land and after making such inquiry as he thinks fit, shall.
determine the value of 451 the land which shall be the average of the prices obtaining for similar land in the locality during 10 years immediately preceding the date on which the application is made.
" Surja accordingly applied on August 5, 1957, to the Collect or,Hissar District, stating that he intended to purchase the land in dispute and that the land is outside the reserved area of the landowner.
He further alleged that he had been in possession of the land for the last eight years.
Hardeva in his written statement, inter alia, stated that Surja was in possession of the land only for three or four years.
He alleged that Surja had already 150 bighas of cultivable land.
He further stated that the land is reserved and for that reason Surja was not entitled to purchase it.
In his evidence before the Assistant Collector given on March 25, 1958, Hardeva deposed: "The land is reserved.
I do not know whether the land in dispute is reserved or not.", By his order, dated March 31, 1959, the Assistant Collector, Sirsa, held that Surja was entitled to purchase the land in dispute, and, accordingly, fixed the price.
Regarding reservation he observed: "It is admitted by the respondent that they are big land owners and got this land reserved, but later on during his very cross examination, he denied any knowledge about the reservation.
The respondent produced no evidence with regard to having this land got reserved though they are big land owners.
" Hardeva thereupon filed an appeal before the Collector, and one of the grounds taken was that the Assistant Collector erred in holding that the land in dispute was not reserved land.
The Collector, by his order, dated July 20, 1960, dismissed the appeal.
It was common ground before him that Hardeva was a big landowner and that Surja had been in continuous possession of the land in dispute for more than six years, and the only point he determined was whether with the addition of the 28 bighas and 12 biswas of land which Surja had been permitted to purchase his total area would exceed the permissible area or not.
On this point he held in favour of Surja and accordingly dismissed the appeal, .
Hardeva then filed a revision before the Commissioner.
In the grounds of revision dated October 27, 1960, various grounds were taken but there was no ground regarding reservation of land or selection of land under section 5 B of the Act.
On February 1, 1961.
Hardeva filed an application in the Court of the Commissioner.
In this application he stated that the entire land in dis 452 pute was included in the permissible area selected bY him under section 5 B of the Act by submitting form "E".
He further stated that the Financial Commissioner had in Karan Singh vs Angraz Singh (1).
held that selection under section 5 B(1) had the same force as.
reservation under section 5 of the Act, and this disentitled.
Surja from purchasing the land in dispute.
He prayed that he may be allowed to raise the plea of selection under section 5 B (1).
He stated, that tiffs plea involved a question of jurisdiction and in the interest of justice he may be permitted to raise this plea as an additional ground of revision.
The Commissioner allowed the ground to be taken but as Surja 's counsel suspected the bona fides of the selection, the Commissioner sent for the original file and he satisfied himself, after examining the original form "E" and the affidavit in relation to form ' "E", that.
Hardeva had duly submitted the selection document to the Collector within time on June 19, 1958.
It appears that the Financial Commissioner had held in Dhanpat Raf vs State Punjab(2) that the period of six months allowed by section 5 B for making selection would start from March 22, .1958, the date when the Punjab Government Notification proscribing the form was issued.
The Commissioner felt that the selected land could not be purchased under section 18 by the tenant.
lie accordingly submitted the case to the Financial Commissioner with the recommendation.
that the revision petition be accepted and that the orders of the Assistant Collector and the Collector be set aside.
The Financial Commissioner dismissed ,the revision.
He held that as Hardeva had not put forward the plea of selection before the Assistant Collector or the Collector he could not be allowed to do so at that stage.
lie observed: "In other words the consideration that reservation of area under section 5 and selection of area under section 5 B are identical in their effect has no relevance in the present.
cases for the reasons that it was never claimed (except in revision) that the .area .had .been selected under section 5 B.
If such a claim had been made and substantiated, the position would have been .different, but since this. ' was not done, the 'decision against the petitioner cannot be challenged.
it is also clear that there is no question in these eases of authorities concerned having acted without jurisdiction or having exercised.
it with illegality 'or material .irregularity which alone could justify interference 'in revision.
" Hardeva then filed a petition under articles 226 and 227.
of the Constitution.
The Court held that the Financial Commis (1) (1960) 39 Lahore Law Times, 57, (2) (1961) Lahore Law 453 sioner should have accepted.
the recommendation made by.
the Commissioner and accordingly allowed the petition and declared that Surja was not entitled to purchase the land in dispute selected by the land owner under the provisions of 'section 5 B of the Act.
The learned Single Judge was of the view that the disputed question related.
to junsdiction and .went to the root of the whole matter.
It appears that there was some dispute before the learned Single Judge about the date of the selection, because the learned Judge observed: "There is a slight dispute on the question whether the intimation of selection was given on 19th or ' 20th of June, 1958".
He, however.
preferred to accept the finding of the learned Commissioner on the point and gave the land.owner the benefit of it.
He further observed that the question could not have been raised before the Assistant Collector and the Collector because "the prevailing view up till 1960 appears to have been that the selected area had.
not been equated with the reserved area" and it was because of this that Hardeva had not placed it before the Assistant Collector and the Collector although he had placed the point that the area was part of the reserved area.
It seems to us that the High Court was right in holding that the, question whether the land sought to be purchased by Surja was part of the reserved or selected area was a jurisdictional fact.
Under section 18 of the Act a tenant is only entitled to purchase land which as not included in the reserved or selected area of the landowner.
Under section 18(2) the Assistant Collector is only authorized to determine the value of the land after making such enquiries as he thinks fit.
He is not authorized expressly to go into the question whether the land sought to be purchased is included in the reserved or selected area of the land owner or not.
But, obviously it must be the intention that he should go into these questions before embarking on determining the price.
But by wrongly deciding that question he cannot finally confer on himself jurisdiction to deal with the matter.
In exercise of the powers under section 24 of the Act, read with section 84 of the Tenancy Act, the Financial Commissioner had jurisdiction to go into the question whether the Assistant Collector or the Collector had rightly assumed jurisdiction.
It was urged before us that the orders of the Assistant Collector and the Collector were final and could not be assailed on the ground that they had wrongly assumed jurisdiction.
Reliance was placed on authorities.
like Rai Brij Raj Krishna vs section K. Shaw(1) where (1) ; 454 this Court referred to Queen vs Commissioners for Special Purposes of Income Tax (1) and Colonial Bank of Australia vs Willan,(2) That was a case of a suit whereby the order of the Commissioner under the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (section 11) was sought to be declared illegal, ultra vires and without jurisdiction, but we are concerned with the revisional power.of the Financial Commissioner which is the same as that of the High Court.
As observed by Kapur, J., speaking for the Court, in Chaube Jagdish Prasad vs Chaturvedi,.(3) these cases have no application to the exercise of revisional power.
He observed: "The appellant also relied on Rai BrijRai Krishna vs
S.K. Shaw and Bros.(4) where this Court quoted with approval the observations of Lord Esher in Queen vs Commissioner for pecial Purposes of the Income Tax(1) and Colonial Bank of Australia vs Willan(a), where Sir James Colville said: "Accordingly the authorities. establish that an adjudication by a Judge having jurisdiction over the subject matter is, if no defect appears on the face of it, to be taken as conclusive of the facts stated therein and that the Court of Queen 's Bench will not on certiorari quash such an adjudication on the ground that any such fact, however, essential, has been erroneously found." But these observations can have no application to the judgment of the Additional Civil Judge whose jurisdiction in the present case iS to be determined by the provisions of section 5 (4) of the Act.
And the power of the High Court to correct questions of jurisdiction is to be found within the four corners of section 115.
H there is an error which falls within this section the High CoUrt will have the power to interfere, not otherwise.
The only question to be decided in the instant case is as to whether ,the High Court had correctly interfered under section 115 of the Code of Civil Procedure with the order of the Civil Judge.
As we have held above, at the instance of the landlord the 'suit was only maintainable if it was based on the inadequacy of the reasonable annual rent and for that purpose the necessary jUrisdictional fact to be found was the date of the construction of the accommodation and if the court wrongly decided (1) (2) (3) [1959] Supp. 1 S.C.R. 733, 746.
(4) ; 455 that fact and thereby conferred jurisdiction upon itself which it did not possess, it exercised jurisdiction not vested in it and the matter fell within the.
rule laid down by the Privy Council in Joy Chandlal Babu vs Kamalksha Chaudhury(1). ' The High Court had the power to interfere and once it had the power it could determine whether the question of the date of construction was rightly ,or wrongly decided.
The High .Court held that the Civil Judge had wrongly decided that the conStruction was of a date after June 30, 1946, and therfor fell within section 3 A." Similarly, in Jagannath Ramchandra Datar vs Dattaraya Balwant Hingmire(2) this Court observed: "Therefore if it can be shown that the subordinate court without any evidence whatsoever held that the ' transaction in question was not a sale but a mortgage and that the relationship between the parties was that of a debtor and a creditor and on that.
footing proceeded to exercise its power under section 3 and 10 A of the Dekhan Agriculturists Relief Act the High Court would be entitled to interfere with such a decision under both the parts of section 115.
It would then ' be possible to say that the subordinate court had clutched at jurisdiction which it had not under the said section and it would also be possible to say that court had exercised its jurisdiction illegally or with material irregularity.
" It seems to us that the Financial Commissioner did not appreciate the content of his powers of revision under section 24, read with section 84 of the Tenancy Act.
It was obvious from the report of the Commissioner that if the finding arrived at by the Commissioner was accepted the Assistant Collector and the Collector had no jurisdiction in the matter.
In our opinion the Financial Commissioner should have gone into the question whether the Commissioner 's report was acceptable or not on merits.
It is urged by the learned counsel for Surja that the High Court did not decide the question whether the selection had been properly made within time, but it merely, accepted the report of the Commissioner.
He, therefore, still disputes the fact that the selection was made within time.
He also says that it is not a genuine and valid selection.
These points should be gone into by the Financial Commissioner.
Under these circumstances we allow the appeal, set aside the orders passed by the High Court (1) 1949 L.R. 76 I.A. 131.
(2) Civil Appeal No. 585 of 1964 judgment delivered on September 9, 1966.
456 and the Financial Commissioner and remit the case to the Financial.
Commissioner to dispose of the revision filed before him in accordance with law.
There will be no order as to Costs in this appeal. ' Y.P. Appeal allowed.

dataset_name: IN-Abs

summary:
The appellant a tenant of.
the respondent l(a big, land owner).
applied.
for purchase of the.land cultivated by him under section 18 of the Punjab Security of Land Tenures Act, 1953 alleging that he had been in possession of the land for more than.
six years and the land was outside the reserved area of the land oWner.
The respondent alleged.
that th land was reserved.
The Assistant Collector .held that the appellant was entitled.
to purchase the land '.
The respondent filed an appeal t the Collector.
The Collector dismissed the appeal.
The responder then filed a revision to the Commissioner.
While the revision was pending the Financial Commissioner gave a decision in another matter that a selection by land owner under s2 5B(1) for permissible area under the Act had the same force as. 'reservation.under section 5, of the Act.
There respondent thereupon filed an application stating that the entire land dispute was included in the permissible area selected by him under section 5 B and as this disentitled the tenant from purchasing the land prayed that he may be allowed to raise this plea which involved a question of jurisdiction.
The Commissioner satisfied himself that the selection document was filed within time and felt that the land could not purchased and submitted the case to the Financial Commissioner with the recommendation that the.
revision be accepted.
The Financial Commissioner however dismissed the revision holding that as the respondent had not put the plea of selection before Assistant Collector or Collect he could not be allowed to do so at that stage.
The respondent filed a petition in the High Court and the High Court allowed the petitioning that the Financial Commissioner should have accepted the recommendation made by the Commissioner.
In appeal this Court, HELD: The Financial Commissioner should have gone into question whether Commissioner 's report was acceptable or not on merits The question whether the land sought to be purchased by the appellant was part of the reserved or selected area was a jurisdictional f Under section 18 of the Act a tenant is only entitled to purchase land is not included in the reserved or selected area of the land ow Under section 18(2) the Assistant Collector is only authorized to determine the value .of the land after making such enquiries as he thinks fit.
is not authorized expressly to go into the question whether the sought to be purchased is included in the reserved or selected are the land owner or not.
But he should go into these questions be embarking or determining the price and by wrongly deciding.
449 tion he cannot finally confer on himself jurisdiction to deal with the matter.
The revisional power of the Financial Commissioner under section 24 of the Act read with section 84 of the Tenancy Act being the same as that of the High Court in exercise of that power the Financial Commissioner had jurisdiction to go into the question whether the Assistant Collector or the Collector had rightly assumed jurisdiction.
[453 E G] As the question whether the selection by the land owner was made in time and whether it was genuine and valid had to be decided the matter must be remanded to the Financial Commissioner for decision on these points.
Chaube Jagdish Prasad vs Chaturvedi, [1959] Supp. 1 S.C.R. 733, 746 and Jagannath Ramchandra Datar vs Dattaraya Balwant Hingmire, C.A. No. 585 of 1964 dated 9 9 1966, followed.
Rai Brij Raj Krishna vs
S.K. Shaw ; , Queen vs Commissioners for Special Purposes of Income tax, and Colonial Bank of Australia vs Willan L.R. , held inapplicable.


judgement:
ivil Appeals Nos. 1264 and .1265 of 1968.
Appeals from the judgment and order, dated March 18, 1968 of the Patna High Court in Civil Writ Jurisdiction Cases Nos. 235 and 287 of 1967.
C.K. Daphtary, Attorney General, Saptami Jha and B.P. Jha, for the appellant (in both the appeals).
D. Goburdhun, for respondent No.1 (in both the appeals).
B.P. Singh and R.B. Datar, for respondent No. 2 (in both the appeals).
The Judgment of the Court was delivered by Bachawat, J.
Seerval persons including oen Ram Bichar Singh filed applications for the grant of a permanent stage carriage permit for the Chapra Masrakh Siwan Gopalganj route before June 15, 1963 and last date appointed for the receipt of the applications .by the North Bihar Regional Transport Authority.
Ram Bichar Singh died on April 12, 1965 before the final disposal of his application.
His widow Dhani Devi succeeded to the possession of the transport vehicles left by him and accordingly under section 61(2) of the , the Regional Transport Authority,transferred to her all the permits held by him for 509 other routes.
On May 4, 1966, the Regional Transport Authority considered all the applications, allowed Dhani Devi to prosecute the application filed by her husband and directed the grant of the permit to her.
Sant Bihari Sharma, Chandra Kriti Singh and other unsuccessful applicants filed appeals against the order under 64.
At the hearing of the appeals it was contended that the order was without jurisdiction as Dhani Devi had no right to prosecute the application filed by her husband.
The State Transport Appellate Authority accepted the contention, set aside the order appealed from and directed the grant of the permit to Sant Bihari Sharma and in case of his failure to comply with certain conditions gave the second preference to Chandrakriti Singh.
Dhani Devi, .Chandrakiriti Singh and another applicant filed revision petitions against the order under section 64A.
The Transport Minister allowed the revision petition of Dhani Devi and restored the order of the Regional Transport Authority.
He held that the order of the Regional Transport Authority was not without jurisdiction.
Sant Bihari Sharma and Chandrakriti Singh filed two writ petitions in the Patna High Court challenging the said order.
The High Court allowed the petitions, quashed the order for the grant of permit to Dhani Devi and remanded the matter for disposal according to law.
The present appeals have been filed by Dhani Devi against the orders passed by the High Court.
The sole question in this appeal is whether on the death of an applicant for a stage carriage permit in respect of his transport vehicles the Regional Transport Authority has power to allow the person succeeding to the possession of the vehicles to prosecute the application filed by the deceased applicant.
No express provision on the subject is to be found in the or the Rules framed thereunder.
Order 22 of the Code of Civil Procedure does not apply to proceedings under the .
Section 306 of the has no application as no executor or administrator was appointed to the estate of the deceased Ram Bichar Singh. ' No transport vehicle can be used save in accordance with a permit issued under Chapter IV of the .
Four types of permits may be issued under Chapter IV, viz., stage carriage permit, (sections 46 to 48); contract carriage permit (sections 49 to 51); private carrier 's permit, (sections 52 and 53) and public carrier 's permit, (sections 54 to 56).
A person in possession of a transport vehicle is not entitled to a permit as a matter of right, see Verappa Pillai vs Raman & Raman Ltd. (1) His only right is to make an application for the grant of a permit under section 45 and to a consideration of the application in accordance with the provisions of the Act.
If he dies after obtaining the permit, the Regional (1) ; , 591,595.
C1/69 16 510 Transport Authority has power under section 61(2) to transfer the permit to the person succeeding to the possession of the vehicles covered by the permit.
We are inclined to think that in the case of death of the applicant before the final disposal of his application for the grant of a permit in respect of his vehicles the Regional Transport Authority has power to substitute the person succeeding to the possession of the vehicles in place of the deceased applicant and to allow the successor to prosecute the application.
As the relief sought for in the application is dependent upon and related to the possession of the vehicles, the application is capable of being revived at the instance of the person succeeding to the possession of the vehicles.
Under section 57 an application for a stage carriage permit or a public carrier permit must be made within the appointed time and published in the prescribed manner.
The representations relating thereto must also be made before the appointed time.
In the event of the death of an applicant after the expiry of the time appointed for making the applications, the person succeeding .to the possession of the vehicle cannot, having regard to the lapse of time, make another application in his own right.
The successor cannot obtain the permit unless he is allowed to prosecute the application filed by his predecessor and we see no reason why he cannot be permitted to do so.
Where the successor is allowed to prosecute the application, the Regional Transport Authority may have to take into consideration many matters personal to the successor, such as his experience, the facilities at his disposal for operating the services and his adverse record, if any.
The matters personal to the deceased applicant can no longer be taken into account.
The rival applicants should, if necessary be given suitable opportunity to file objections against the grant of the permit to the successor.
Section 57 does not deal with the situation arising on the death of an applicant nor has it prescribed any time for the making of an application for substitution of the successor or for the filing of objections against the grant of the permit to him.
In the absence of any statute or statutory rule the Regional Transport Authority may devise any reasonable procedure for dealing with the situation.
As stated in American Jurisprudence, 2d.
2 (Administrative Law), article 340, p. 155: "Where the statute does not require any particular method of procedure to be followed by an administrative agency, the agency may adopt any reasonable method to carry out its functions." (see also Corpus Juris Secundum, vol.73 (Public Administrative Bodies and Procedure, article 73, p. 399).
The Regional Transport Authority has complete discretion in the matter of allowing or refusing substitution.
It is not bound to embark upon prolonged 511 investigation into disputed questions of succession.
Nor is it bound to allow substitution if such an order will delay the proceedings unreasonably or will otherwise be detrimental to the interests of the public generally.
Under section 57(1) an application for a contract carrier 's permit or a private carrier 's permit may be made at any time, and therefore the Regional Transport Authority can more readily allow the successor to prosecute the application filed by his predecessor.
The Regional Transport Authority may similarly deal with the situation arising on the death of an applicant for the variation of the permit under section 57(8) or the renewal of the permit under section 58.
Likewise, in the case of the death of an applicant during the pendency of an appeal under section 64A or a revision petition under section 64A the appellate or the revisional authority has power if it thinks fit to substitute the successor in place of the deceased applicant in the records of the proceedings.
We may now refer to the relevant decisions on the subject under consideration.
In Ratanlal vs State Transport Authority(1) one Munnalal died during the pendency of appeals filed by him against the orders rejecting his application for the grant of a stage carriage permit and directing the issue of the permit to another applicant.
The appellate authority refused to order substitution of his son Ratanlal in his place.
Ratanlal filed a writ petition challenging the order.
The Allahabad High Court dismissed the petition.
It held that the right to apply for the grant of a permit was not heritable or transferable and Ratanlal 's heir had no right to continue the appeals.
In Meenakshi vs Mysore S.T.A. Tribunal(2) several persons including Gopalassetty applied for the grant of a stage carriage permit.
The Regional Transport Authority decided to grant the permit to another applicant.
Unsuccessful applicants other than Gopalassetty filed appeals against the order.
During the pendency of the appeals Gopalassetty died.
The appellate tribunal allowed the appeals and remanded the matter to the Regional Transport Authority for fresh disposal.
After the matter went back to the Regional Transport Authority, the widow of Gopalassetty was substituted in his place and was allowed to prosecute the application presented by him.
On a consideration of all the applications the Regional Transport Authority granted the permit to the widow of Gopalassetty.
The order was set aside by the appellate tribunal on the ground inter alia that the widow could not continue the application filed by Gopalassetty.
On a writ petition filed by the widow, the Mysore High Court set aside the order of the appellate tribunal and restored the order of the Regional Transport Authority.
It held that the application presented by Gopalassetty could be (1) A.I.R. 1957 All. 471.
(2) A.I.R. 512 prosecuted by his widow.
The decision of the Mysore High Court was reversed by this Court on another point in Hanuman Transport Ca.
vs Meenakshi(1).
But this Court then declined to express any opinion on the question whether the successor can be permitted to prosecute the application filed by his predecessor.
In Maruthuvanan vs Balasubramaniam(2) two partners of a firm filed an appeal ' from an order rejecting their application for the grant of a permit.
During the pendency of the appeal one of the partners died.
The Madras High Court held that the appeal could be continued by the surviving partner.
In Kuppuswami vs Ramchandran(3) one Lakshimi applied for a variation of the stage carriage permits held by her.
Her application was rejected by the Regional Transport Authority.
She filed a revision petition against the order under section 64A.
During the pendency of the revision petition she died.
The State Transport Appellate Tribunal permitted the guardian of her minor legal representatives to continue the revision petition, set aside the order of the Regional Transport Authority and granted the variation sought for.
Two of the rival operators filed writ petitions challenging the order.
The Madras High Court held that the legal representative of Lakshimi could continue the revision petition.
For the reasons already given, we are not inclined to agree with the Allahabad decision.
In Director of Public Works vs Ho Po Sang & Ors.(4) the Privy Council held that the right of a crown lessee of premises in Hongkong to get petition and cross petition for the grant of a rebuilding certificate pursuant to the proposal of the Director of Public Works to be considered by the Governor in Council under sec.
3B of the Landlord and Tenant Ordinance (Hong Kong), 1947 was not a right or a privilege either accrued or acquired within the meaning of see.
10 of the Interpretation Ordinance of Hong Kong, corresponding to sec.
38 of the Interpretation Act, 1889 and that on the repeal of the Ordinance, the proceedings could not be continued and the Governor could not pass any order under section 3B.
This decision is not relevant, as we are not concerned in the present case with the effect of repeal of the on a pending application for the grant of a permit.
Let us now turn to the facts of the present case.
The appellant 's husband Ram Bichar Singh made 'an application for the grant of a stage carriage permit.
Upon his death during the pendency of the application, the Regional Transport Authority allowed the appellant to prosecute the application filed by him. ' She made no formal application for substitution; but no objection was raised on that ground nor was any adjournment asked (1) C.A.No. 794/63 decided on 20 12 1963.
(2) A.I.R.1963 Mad. 292.
(3) A.I.R.1964 Mad. 356. (4) ; 513 for by the rival claimants in order to enable them to file objections.
Ram Bichar Singh is said to have left behind other heirs also, but no objection was taken on the ground of their nonjoinder.
The Regional Transport Authority directed the grant of the permit to the appellant.
On the materials on the record, the Regional Transport Authority found that the appellant was an experienced and displaced operator.
That finding was not challenged in appeal.
The only point taken in the appeal was that the application of Ram Bichar Singh had abated and that the Regional Transport Authority had no power to allow her to continue the application.
The Appellate Authority accepted the contention and set aside the order directing the grant of the permit to the appellant.
The Transport Minister rightly set aside the order of the Appellate Authority and held that the Regional Transport Authority has power to permit her to prosecute the application filed by her deceased husband.
In our opinion, the High Court was in error in setting aside the order of the Transport Minister.
In the result, the appeals are allowed, the order of the High Court is set aside and the order of the Transport Minister is restored.
There will be no order as to costs.
G.C. Appeals allowed.

summary:
The appellant 's husband was one of the applicants for a permanent stage carriage permit on a route under the jurisdiction of the North Bihar Regional Transport Authority.
On her husband 's death during the pendency of the aforesaid application, the appellant came into possession of all his transport vehicles.
The Regional Transport Authority allowed the appellant to prosecute the application and directed the grant of the permit to her.
The appeal filed by the unsuccessful applicants against this order was allowed by the State Transport Authority but the Transport Minister, in revision under section 64A of the , decided in favour of the appellant.
Against the orders of the Transport Minister writ petitions were filed in the High Court and were allowed.
The ,appellant came to this Court.
The question for consideration was whether on the death of an applicant for a stage carriage permit in respect of his transport vehicles the Regional Authority has power to a11ow the person succeeding to the possession of the vehicles, to prosecute the application filled by the deceased applicant.
HELD: The High Court was in error in setting aside the order of the Transport Minister., A person in possession of a transport vehicle is not entitled to a permit as a matter of right.
His only right is to make an application under section 45 of the and to a consideration of the application under the provisions of the Act.
If he dies after obtaining the permit, the Regional Transport Authority has power under section 61(2) to transfer the permit to the person succeeding to the possession of the vehicles covered by the permit.
In the case of death of the applicant before the final disposal of his application for the grant of a permit in respect of his vehicles the Regional Transport Authority has power to substitute the person succeeding to the possession of the of the. deceased applicant.
As the relief sought for in the application is dependent upon and related to the possession of the vehicles, the application is capable of being revived at the instance of the person succeeding to the possession of the vehicles.
[509 G 510 C] Verappa Pillai.v.
Raman.
& Raman Ltd., ; , 591, 595.
referred to.
Under section 57 an application for a stage carriage permit or a public carrier permit must be made within the appointed time and published in the prescribed manner.
The representations relating thereto must also be made at the appointed time.
In the event of the death of the applicant after the expiry of the time appointed for making the application, the person succeeding to the possession of the vehicles cannot, having regard to the lapse of dine, make another application in his own right.
508 The successor cannot obtain the permit unless he is allowed to prosecute the application filed by his predecessor and there is no reason why he cannot be permitted to do so.
Section 57 does not deal with the situation arising on the death of an applicant nor has it prescribed any time for the making of an application for substitution of the successor or for the filing of objections against the grant of the permit to him.
In the absence of any statute or statutory rule the Regional Transport Authority may devise any procedure for dealing with the situation.
The Regional Transport Authority has complete discretion in the matter of allowing or refusing substitution.
It is not bound to embark on a prolonged investigation into disputed questions of possession.
Nor is it bound to allow substitution if such order will delay the proceedings unreasonably or will otherwise be detrimental to the interests of the public generally.
[510 C 511 A] The same principle would apply to applications under sections 57(1), 58(8) and 58, as well as to appeals under section 64, and revisions under section 64A. [511 B] Ratanlal vs State Transport Authority, A.I.R. 1957 All 471, disapproved Meenakshi vs Mysore S.T.A. Tribunal, A.I.R. 1963 Mys. 279, Hanuman Transport Co. vs Meenakshi, C.A. No. 794/63 dt.
20 12 63, Maruthavanan vs Balasubramaniam A.I.R. 1963 Mad. 292, Kuppu swarmi vs Ramchandran, A.I.R. 1964 Mad. 356, and Director of Public 'Works vs Ho Po Sang & Ors., [1961] A.C. 901, referred to.


judgement:
Appeal (Civil Appeal No. 28 of 1950) from a judgment and decree of the High Court of Judicature at Bombay dated 19th March, 1945, in Appeals Nos.
68 and 190 of 1942.
H.D. Banaji (V. R. Desai, with him) for the appellants.
M.C. Setalvad, Attorney General for India (G. N. Joshi, with him) for the respondent.
February 5.
The judgment of the Court was deliv ered by MAHAJAN J.
This is an appeal from a judgment of the High Court of Judicature at.
Bombay modifying the decree of the trial court and decreeing partially the plaintiff 's suit.
The appellants are the legal representatives of the original plaintiff Haji Ali Mohamed Haji Cassum.
The State of Bombay is the respondent.
The facts giving rise to this Controversy, briefly stated, are as follows ; 35 268 Village Dahisar originally formed part of the Malad Estate comprising in all eight villages.
The said estate was conveyed by the East India Company to two Dady brothers for valuable consideration by a deed of indenture dated the 25th January, 1819.
By that conveyance all the lands in the eight villages were conveyed absolutely to the said purchas ers and it was covenanted by the Company that the purchas ers, their heirs and assigns shall peaceably and quietly enjoy the said villages and receive and take the rents and profits thereof without any hindrance or interruption from the said Company.
By a sale deed dated the 13th December, 1900, Haji Cassum, father of the plaintiff, purchased the village of Dahisar from its proprietors for a price of Rs. 1,30,000 and after his death the plaintiff became the pro prietor thereof and as such received rents and assessment from the tenants and holders of the lands in the village according to the rights prevailing under the survey settle ment which had taken place in the village about the year 1864 65.
In the year 1879 the Bombay Land Revenue Code was enact ed.
Section 48 of the Code is in these terms : "48.
(1) The land revenue leviable on any land under the provisions of this Act shall be assessed, or shall be deemed to have been assessed, as the case may be, with reference to the use of the land (a) for the purpose of agriculture, (b) for the purpose of building, and (c) for a purpose other than agriculture or building.
(2) Where land assessed for use for any purpose is used for any other purpose, the assessment fixed under the provi sions of this Act upon such land shall, notwithstanding that the term for which such assessment may have been fixed has not expired, be liable to be altered and fixed at a differ ent rate by such authority and subject to such rules as the Provincial Government may prescribe in this behalf . . . " 269 After the Act came into force, the Government drafted rules under the provisions of section 214 for promulgation.
The inamdars represented to the Government that the rules should be so framed as not to prejudice their rights under the conveyances executed by the Company in their favour.
The draft rules were promulgated by a notification issued on the 5th June, 1907.
On that date, the Government adopted a resolution ordering that the rules be promulgated and also giving an assurance to the inamdars to the following effect : "Government will, however, be prepared to amend or abrogate these rules if they are found to be detrimental in any material respects to the interests of the inamdars.
" Rule 92 is one of the rules promulgated under the provisions of the Act and it runs thus : "When land assessed for purposes of agriculture only is subsequently used for any purpose unconnected with agricul ture the assessment upon the land so used shall, unless otherwise directed by Government, be altered under sub section (2) of section 48 by the collector in accordance with rules 81 to 87 inclusive." On the 25th July, 1923, the plaintiff requested the Commissioner of Bombay, Suburban District, for a revision of the survey of Dahisar village.
He executed an agreement under the provisions of section 216 of the Bombay Land Revenue Code and made a formal application in that behalf as required by the Code and the rules made thereunder.
The Commissioner by his letter dated the 14th March, 1925, authorised the extension of the provisions of chapters 8 and 9 of the Land Revenue Code to the village in question.
The plaintiff also deposited the necessary expenses required for the revision of the survey.
The revision was made by the Superintendent of the Land Records who submitted his report to the Commissioner on the 15th December, 1926.
This report was sanctioned by Government.
The order sanctioning the revised survey was communicated to the plaintiff on the 23rd 270 December, 1927.
Under the revised survey the assessment of Rs. 4,217 on the village lands was increased to Rs. 6,057 3 2, and the plaintiff from that date started recover ing the increased assessment from the tenants of the lands in the village.
At the time of the revision of the survey it was found that nine plots of land comprised in eleven field numbers which were formerly agricultural had been built upon and these were being used for non agricultural purposes.
The survey officer formed them into a separate group and showed them as kharaba and no assessment, either agricultural or non agricultural, was levied on these nine plots and the plaintiff could not therefore recover any assessment in respect of these plots after 1926.
On the BOth April, 1934, he requested the Collector to assess non agricultural assessment on these plots.
This request was refused by the Collector on the 17th July, 1935, in these terms: "With reference to your letter dated 30 4 1934, I have the honour to state that I regret your request cannot be granted.
" It has to be observed that this refusal was in contra vention of the provisions of rule 92 which imposes on the Collector a duty to make alteration in the assessment, unless he has been directed to the contrary by Government.
It was not denied that by the 17th July, 1935, no such direction had been given to the Collector by Government.
If the Collector had done his duty as enjoined by rule 92, this lengthy and unnecessary litigation might well have been avoided.
Against the order of the Collector the plaintiff ap pealed to the Commissioner.
In his appeal he pointed out that certain additional lands in the village had been con verted to non agricultural uses subsequent to the revision of the survey in 1926.
The Commissioner declined to inter fere.
This information was conveyed by the Collector to the counsel for the plaintiff on the 22nd May, 1937.
Against the Commissioner 's decision, the plaintiff appealed to the Governor in Council and 271 on the 20th December, 1937, he received a copy of the fol lowing communication from Government to the Commissioner : "The undersigned presents compliments to the Commis sioner, Northern Division, and with reference to his letter, No. L.N.D. 3124, dated 20th April, 1936, on the subject noted above, is directed to invite his attention, to the orders issued in Government Resolution, No. s235/3a, dated 8th March, 1937, and to state that Government confirm the action of the Collector, Bombay Suburban District, in refusing the Khot 's request for the levy of nonagricultural assessment in the village of Dahisar.
By order of the Governor in Council, for Under Secretary to the Government of Bombay.
" In order to find out whether there was any resolution of the Government as mentioned in the above communication, during the pendency of the suit the plaintiff issued the following interrogatory to the Government of the State of Bombay : "When was the decision, not to assess the lands men tioned in Schedule II of the plaint and other lands under rule 92, referred to in para.
8 of their written statement arrived at by the Government ? Produce a copy of the said decision which may have been embodied in a Government resolution along with the opinion of the Government officers with which Government may have concurred.
" The answer given on behalf of the State Government to this question was as follows : "(8) Government Memorandum, Revenue Department, No. 5235 B/33, dated the 8th March, 1937, confirmed the Collec tor 's action in refusing the proprietor 's request for the levy of non agricultural assessment. ' ' This answer indicates that the Government acting under rule 92, neither adopted any resolution nor issued any notification giving any directions to the Collector contrary to the provisions contained in that 272 rule.
All that it did was to confirm the Collector 's order rejecting the request of the plaintiff for making the as sessment of non agricultural lands in the village.
During the interval between 1927 37 a large number of plots of land mentioned in schedule II were put to non agricultural uses by the tenants in possession of them and a number of buildings were constructed thereupon.
The plain tiff having failed in persuading the Government to make an assessment under rule 92 of such lands, after service of notice under section 80 of the Code of Civil Procedure, instituted the present suit, (a) for a declaration that he was entitled to have nonagricultural assessment made on all lands in the village of Dahisar which were used or which may thereafter be brought into use for purposes other than agricultural, and (b)for an order that the Collector of Bombay, Suburban District, be directed to determine the amount of non agricultural assessment on the lands mentioned in schedules I and II of the plaint and to levy the same under clause 2 of rule 96 and pay it to the plaintiff, or in the alternative, to direct the defendant to issue a commission to the plaintiff under section 88 of the Land Revenue Code.
Schedule I gave details of the nine plots of land that had been converted into non agricultural use before the survey of 1926, while schedule II gave details of those lands which since 1926 up to the date of the suit had been converted to such use.
The plaintiff also claimed damages to the extent of Rs. 120 as compensation for loss of agricultural assessment for six years in respect of lands mentioned in schedule I and he claimed similar damages to the extent of Rs. 300 for loss of non agricultural assess ment in respect of the other lands.
He also claimed future damages and costs.
The suit was resisted by the State Government on a number of grounds.
It was contended that it was barred under section 4 (c) of the Revenue Jurisdiction Act and under article 14 of the Indian Limitation Act.
On the merits it was pleaded that the action of the survey officer and the Collector in refusing to levy non agricultural assessment on lands contained in the 273 two schedules was lawful and proper and that the civil court could not question the discretion of the Government in such matters.
The trial Judge negatived all the technical objections raised by the defendant and on the merits held that the Collector 's action in refusing to levy nonagricultural assessment on the lands in question was wrongful.
He, there fore, granted the declaration prayed for.
He, however, refused to give further relief to the plaintiff and disal lowed the prayer for a direction for levying non agricultur al assessment on the lands given in the two schedules and for paying it to the plaintiff.
He observed that the Govern ment would be well advised if it levied such assessment and paid it to the plaintiff.
Two appeals were taken to the High Court against the decree of the trial Judge.
That Court modified this decree and granted a declaration to the plaintiff that he was entitled to receive non agricultural assessment on all lands which are and which may hereafter be used for non agricul tural purposes.
It ordered the defendant to levy such altered assessment on the lands mentioned in schedule I and decreed consequential damages to the plaintiff in respect to these lands.
As regards the lands in schedule II, the plain tiff 's suit for a direction to assess and levy non agricul tural assessment on them was dismissed.
The court drew a distinction between lands that had been converted to non agricultural use before the survey of 1926 and those which had since then been converted to such use.
As regards the former, it was held that the survey officer had erroneously declined to make non agricultural assessment on those lands and his action was ultra vires.
Relief was given to the plaintiff regarding those lands as prayed for.
As regards the latter, it was held that it was within the discretion of the Government to order an alteration of the assessment on such lands and this discretion could not be questioned in a court of law.
The plaintiff being dissatisfied with this part of the decision made an application for leave to appeal to.
the Privy Council on the 15th 274 September, 1945.
During the pendency of the application the plaintiff died and his heirs and executors were implead ed as his legal representatives.
A certificate for leave to appeal to the Privy Council was granted on the th February, 1947, and the appeal preferred under the certificate is now before us for decision.
There is no controversy in this appeal as regards the reliefs that have been given to the plaintiff by the High Court.
The appeal concerns the fur ther relief refused to the plaintiff in respect to the lands mentioned in schedule II.
It was contended on behalf of the appellant that under the terms of the conveyance dated 25th January, 1819, and of the covenants contained therein it was not open to the Government or the Collector to refuse the alteration of the assessment claimed by the plaintiff and that the Government could not give any direction under rule 92 which would be contrary to these covenants and assur ances.
It was said that the Government was bound to use its power to levy assessment as trustee for the transferee and that the exercise of this power could not be arbitrarily refused by it.
It was urged that the Government Resolution dated 5th June, 1907, clearly indicated that the rules framed under the Land Revenue Code were not intended to affect adversely the owners of alienated lands and the Collector was bound to make an assessment as required by the plaintiff.
Lastly, it was argued that as a matter of fact Government never exercised its power under rule 92 and never gave a direction to the Collector to a contrary effect and that the mere affirmation of the erroneous order of the Collector by Government did not amount to a direction con templated by the provisions of rule 92.
Having considered this case in all its aspects, we have reached the decision that the High Court 's decision have in so far as it refused relief to the plaintiff in respect to the lands mentioned in schedule II should be reversed.
Rule 92 cited in the earlier part of this judgment in imper ative terms directs the Collector to alter the assessment in case agricultural lands are Converted to non agricultural use.
The Collector has 275 no option in the matter and as soon as an application is made to him he should proceed to make an assessment and levy it on the non agricultural lands.
When the Collector de clined to accede to the request of the plaintiff he acted in contravention of the clear provisions of the rule, because admittedly at that time no "directions to the contrary" had been given to him by the Government.
There was no resolu tion of the Government in existence and no notification had been issued under the provisions of rule 92 directing the Collector not to make an alteration in the assessment when required to do so.
The Commissioner, in dismissing the plaintiff 's appeal, also contravened the provisions of rule 92.
When the matter went up in appeal to the Governor in Council, no decision was taken under the provisions of rule 92.
The High Court assumed that the confirmation of the action of the Collector by the Government amounted to a direction by the Government to the contrary in respect of the lands in question.
We are unable to agree with this conclusion.
When Gov ernment has been given the power to give directions to the Collector not to act in accordance with the imperative provisions of a rule which enjoin upon him to make the altered assessment, that power has to be exercised in clear and unambiguous terms as it affects civil rights of the persons concerned and the decision that the power has been exercised should be notified in the usual manner in which such decisions are made known to the public.
It was conceded by Mr. Joshi that no such decision was taken by Government and no direction was issued by Government under rule 92 Dismissal by the Government of the plaintiff 's appeal and affirmation by it of an erroneous order of the Collector could not be held to amount to action under the provisions of rule 92.
In these circumstances, the plaintiff was clearly entitled to further relief in respect to lands mentioned in schedule II and a direction should have been issued to the State Government for making altered assessment on non agricultural lands and levy it on them and pay it to the plaintiff.
36 276 Mr. Joshi contended that the true effect of the provi sions contained in section 48 (2) and rule 92 was that the Government was not bound to levy altered assessment on lands converted to non agricultural use, that the section merely provided that the persons in possession of land were liable for such assessment but it did not say that it was obligato ry on the Government to make it and that the court had no jurisdiction to interfere with the discretion of the Govern ment in the matter.
We think that when a liability is imposed by a statute, that liability cannot be defeated by the exercise of any discretion by Government or by making rules which may negative that liability, but it is not necessary in this case to finally decide the point as the appeal stands decided otherwise.
It is also unnecessary to express an opinion as to the precise scope of the power conferred on Government by the language of rule 92.
The plaintiff 's learned counsel very properly did not press his appeal in respect to the claim of damages concern ing lands mentioned in schedule II.
Plaintiff 's suit to that extent fails.
For the reasons given above the appeal is allowed and the plaintiff 's suit is decreed with costs except in regard to the claim for damages in respect to the lands mentioned in schedule II.
The defendant is directed to make an assess ment on lands mentioned in schedule II in the same way as in respect of the lands mentioned in schedule I and levy the same and pay it to the plaintiff.
Appeal allowed.

summary:
Rule 92 of the rules issued under the Bombay Land Reve nue Code, 1879, provided that when land assessed for pur poses of agriculture only is subsequently used for any purpose unconnected with agriculture, the assessment upon the land so used shall unless otherwise directed by the Government be altered under section 48 (2) by the Collector in accordance with rr.
81 to 87: Held, that as the rule imposes an imperative duty on the Collector to alter the assessment, the power which has been given to the government to give directions to the Collector not to act in accordance with the imperative provisions of the rule has to be exercised in clear and unambiguous terms as it affects civil rights of the persons concerned and the decision that the power has been exercised must be notified in the usual manner.
Where the Government did not pass any resolution or issue any directions to that effect but merely confirmed on appeal an order of the Collector rejecting an application to assess nonagricultural assessment on agricultural lands which had been used for building purposes: Held, that the confirmation of the Collector 's order by the Government did not amount to a direction to act otherwise within the mean ing of r. 92 and the applicant was entitled to have the assessment on the lands altered under section 48(2) in accordance with rr.
81 to 87 as laid down in r. 92.