judgement:
ivil Appeal No. 1009 of 1980.
From the Judgment and Order dated 15.1.80 of the Punjab and Haryana High Court in L.P.A. No. 592 of 1975.
P.P. Rao and Jitender Sharma for the appellants.
Rajinder Sachhar, Govind Mukhoty, Dr. Shankar Ghosh, S.C. 474 Mohanta, Mahabir Singh, T.C. Sharma, P.P. Singh, S.K. Verma, C.M. Nayyar and C.V.S. Rao for the Respondents.
The Judgment of the Court was delivered by SINGH, J.
This appeal by special leave is directed against the order of the High Court of Punjab and Haryana dated 15th January, 1980 quashing the Notification dated 3rd May, 1973 issued by the State Government of Haryana promot ing the appellants to the Haryana Service of Engineers Class I post (Public Health Branch).
The facts giving rise to this appeal are that the appel lants S/Sh.
J.C. Yadav, B.R. Batra, O.P. Juneja, S.L. Cho pra, M.S. Miglani, C.P. Taneja, Surjit Singh and V.P. Gulati and respondents Vyas Dev were members of the Haryana Service of Engineers Class II in the Public Health Branch.
Members of the Class II service are eligible for promotion of Class I posts in accordance with the provisions of the Haryana Service of Engineers Class 1 Public Works Department (Public Health Branch) Rules 1961 (hereinafter referred to as 'the Rules ').
In 1971 the appellants were promoted to the post of Executive Engineers in the cadre of Class 1 on ad hoc basis while Vyas Dev respondent was not considered for promotion.
He made representation but nothing came out in his favour.
Later a Committee was constituted under Rule 8 for selecting suitable members of Class 12 service promotion to Class I post.
The Committee considered the case of appellants and Vyas Dev respondent, but it did not find the respondent suitable for promotion, his name was not included in the select list prepared by the Committee while the names of the appellants were included therein.
The Selection Committee 's recommendation was approved by the Public Service Commission and it was forwarded to the State Government.
Since the appellants did not possess the requisite minimum period of service of eight years ' in Class II service as required by Rule 6(b) and as no other suitable candidates were avail able, the Selection Committee made recommendation to the State Government for granting relaxation to the appellants.
The Committee 's recommendation was reiterated by the Public Service Commission.
The State Government accepted the recom mendations and appointed the appellants to Class I service by the Notification dated May 3, 1973.
Vyas Dev, respondent challenged validity of the appel lants ' promotion by means for a writ petition under Article 226 of the Constitution before the High Court of Punjab and Haryana on the ground that the appellants did not possess requisite qualification for promo 475 tion to Class I service, therefore their promotions were contrary to Rules.
His further grievance was that he was not considered along with the appellants for promotion and he was not afforded opportunity of hearing before he was super seded.
A learned single Judge of the High Court dismissed the petition on the finding that the Selection Committee had considered the case of Vyas Dev along with the appellants for promotion but he was not found suitable.
As regards the appellants ' promotions the learned Judge held that since the State Government had relaxed Rule 6(b) in their favour their promotions were sustainable in law.
The learned Judge fur ther held that no personal hearing was necessary to be afforded to Ved Vyas before his supersession.
On appeal by the respondent a Division Bench of the High Court set aside the order of the single Judge and quashed the appellants promotions on the sole ground that the State Government had no authority in law to grant relaxation to the appellants under Rule 22 in a general manner, as the power of relaxa tion could be exercised only in individual cases to mitigate hardship caused to an individual.
On these findings the Division Bench set aside the appellants ' promotions.
The appointment and promotion to Class I Engineering Service in the State of Haryana are regulated by the Haryana Service of Engineers Class I PWD (Public Health Branch) Rules 1961.
Initially these Rules had been framed by the Governor of Punjab before the formation of the Haryana State.
There is no dispute that subsequently the State of Haryana had adopted these Rules and the recruitment to Class I service of Engineers in PWD (Public Health Branch) is regulated by the Haryana Service of Engineers Class I PWD (Public Health Branch) Rules, 1961 as amended from time to time.
Rule 5 provides for appointment to Class I service by direct appointment, by transfer of an officer already in service of the State Government or of the Union Government, or by promotion from Class II Service.
Rule 6 prescribes qualifications for appointment to Class I service.
The relevant provisions of the Rule are as under: "6.
Qualifications: No person shall be appointed to the service, unless he: (a) possesses one of the University Degree or other qualifi cations prescribed in Appendix 8 of these rules: Provided that Government may waive this qualification in the case of particular officer belonging to Class II Service: 476 (b) in the case of an appointment by promotion from Class II Service, has eight years completed Class II and has passed the professional examination of the department Rule 8 provides for constitution of the Committee for making selection for appointment to Class I service by promotion.
The Committee is required to prepare a list of officers suitable for promotion on the basis of the criteria of merit and suitability with due regard to seniority.
Rule 9 lays down, field of eligibility as well as criteria for promotion to the post of Executive Engineer, Superintending Engineer and Chief Engineer.
Rule 15 provides for departmental exami nations, according to this Rule the officers appointed to the Service, Unless they have already done so, shall pass such departmental examination and within such period as may be prescribed by the Government.
The Rule confers power on the Government to prescribe for any other test in addition to the departmental examination for promotion or appointment to any rank in the service.
Rule 22 confers power on the Government to relax any of the Rules as it may consider necessary.
There is no dispute that none of the appellants had completed eight years ' service in Class II service as required by Rule 6(b) and as such they were not eligible for promotion to the post of Executive Engineer.
On the recom mendation of the Selection Committee and with the approval of the Public Service Commission the State Government re laxed the requirement of eight years ' service so far as the appellants were concerned.
Consequently, the appellants were promoted and appointed as Executive Engineers under the Notification dated 3rd May, 1973.
The sole question for consideration is whether the relaxation granted by the State Government in favour of the appellants is valid.
Rule 22 which confers power on the Government to relax requirement of Rules, is as under: "Rule 22.
Power to relax . .
Where Government is satisfied that the operation of any of these Rules causes undue hardship to any particular case, it may by order dispense with or relax the requirements of that Rule to such extent, and subject to such conditions, as it may consider necessary for dealing with the case in a just and equitable manner.
477 The Rule confers power on the Government to dispense with or to relax the requirement of any of the Rules to the extent and with such conditions as it may consider necessary for dealing with the case in a just and equitable manner.
The object and purpose of conferring this power on the Government is to mitigate undue hardship in any particular case, and to deal with a case in a just and equitable man ner.
If the Rules cause undue hardship or Rules operate in an inequitable manner in that event the State Government has power to dispense with or to relax the requirement of Rules.
The Rule does not restrict the exercise of power to individ ual cases.
The Government may in certain circumstances relax the requirement of Rules to meet a particular situation.
The expression "in any particular case" does not mean that the relaxation should be confined only to an individual case.
One of the meanings of the expression "particular" means "peculiar or pertaining to a specified person thing time or place not common or general".
The meaning of the word particular in relation to law means separate or special, limited or specific.
The word 'case ' in ordinary usage means 'event ', 'happening ', 'situation ', 'circumstances '.
The expression 'case ' in legal sense means 'a case ', 'suit ' or 'proceeding in Court or Tribunal '.
Having regard to these meanings the expression 'in any particular case ' would mean; in a particular or pertaining to an event, situation or circumstance.
Rule 22 postulates relaxation of Rules to meet a particular event or situation, if the operation of the Rules causes hardship.
The relaxation of the Rules may be to the extent the State Government may consider necessary for dealing with a particular situation in a just and equitable manner.
The scope of Rule is wide enough to confer power on the State Government to relax the requirement of Rules in respect of an individual or class of individuals to the extent it may consider necessary for dealing with the case in a just and equitable manner.
The power of relaxation is generally contained in the Rules with a view to mitigate undue hardship or to meet a particular situation.
Many a times strict application of service rules create a situation where a particular individual or a set of individuals may suffer undue hardship and further there may be a situation where requisite qualified persons may not be available for appointment to the service.
In such a situation the Govern ment has power to relax requirement of Rules.
The State Government may in exercise of its powers issue a general order relaxing any particular Rule with a view to avail the services of requisite officers.
The relaxation even if granted in a general manner would enure to the benefit of individual officers.
The State of Haryana was formed in March, 1966 prior to that it was part of the State of Punjab.
The service rules relating to Public 478 Works Department as applicable to the State of Punjab were made applicable to Haryana.
Rule 6(b) which prescribed qualification for appointment to Class I service lays down that no person shall be appointed to the service by promo tion from Class II service unless he has completed eight years ' service in Class II and has passed departmental examination prescribed under Rule 15.
None of the appellants had completed eight years ' service in Class II.
In fact no other member of Class II service possessing the requisite qualifications was available for selection to Class I post.
The respondent no doubt possessed the requisite qualifica tion with regard to the eight years length of service in Class II but he did not possess requisite educational quali fication.
Thus no qualified officer of Class II service was available for promotion to Class I service although a number of vacancies were existing in Class I service.
Having regard to these facts the Selection Committee made recommendation for the relaxation of Rule 6(b) in favour of the appellants, who were found otherwise suitable.
The Public Service Com mission also agreed with the recommendation made by the Selection Committee.
The non availability of suitable Class II officers in Engineering Department possessing the neces sary and prescribed qualifications for promotion to Class I posed a problem for the State Government, as on account of the large scale expansion of Engineering Department a number of posts in Class I service were lying vacant.
A similar situation prevailed in the Building and Road Branch of Public Works Department.
In the circumstances, the State Government with a view to meet the particular situation decided to relax the qualifying length of service to such officers who had completed four years of service in Class II, it therefore relaxed the requirement of Rule 6(b) to the extent that a member of Class II service having four years ' service was qualified for being considered for promotion to Class I service.
These facts would clearly show that the relaxation had been granted to particular individuals with a view to meet the situation, which was in public interest.
We find no legal infirmity in the order of relaxation.
In B.S. Bansal vs State of Punjab and Ors., a Bench of the Punjab and Haryana High Court held that if the power of relaxation could be exercised in order to meet a general situation, then the whole purpose of the Rule would be frustrated and the Government would be armed with an arbitrary power which could cause great hardship to some officers.
We have already referred to the relevant facts which show that in the instant case, power of relaxation was exercised by the State Government to meet a particular situation, it did not result into any injustice or cause hardship to any one.
If power of 479 relaxation is exercised on extraneous consideration for oblique purposes or mala fide, the court has power to strike down the same but exercise of power of relaxation to meet a particular situation cannot be held to be arbitrary or illegal.
In B.S. Jain vs State of Haryana, the High Court set aside the promotions made in pursuance of the relaxation granted under Rule 22 placing reliance on the decision of the Division Bench in B.S. Bansal 's case.
On appeal, this Court in Ashok Gulati vs B.S. Jain, ; observed that the findings of the High Court that the State Government could not have relaxed the condition of passing the departmental professional examination by taking recourse to Rule 22 which conferred power of relaxation on the State Government could hardly be sustained.
In Jit Singh & Ors.
vs State of Pubjab & Ors.
, ; the State Government 's order granting relaxation under Rule 14 of the Punjab Police Service Rules 1959 in respect of the period of service, was questioned.
Rule 14 was almost identical in terms as Rule 22 of the instant case.
In Jit Singh 's case (supra) promotion of Inspectors to the post of Deputy Superintendent of Police was involved.
Under the Police Service Rules 1959 a Police Inspector having six years ' continuous service was eligible for promo tion to the post of Deputy Superintendent of Police.
The State Government in exercise of its power under Rule 14 granting relaxation to Inspectors who had been found fit for promotion, as a large number of vacancies had occurred in the cadre of Deputy Superintendent of Police and no suitable persons having the requisite period of service were avail able.
Promotions made pursuant to the relaxation were chal lenged before the High Court.
The High Court dismissed the writ petition on the ground that the petitioners before it were not qualified for promotion.
On appeal before this Court, the High Court 's judgment was upheld.
This Court took the view that since the appellants before it were not eligi ble for promotion as their names were not included in the Select List prepared by the Public Service Commission and further as they had not completed six years ' of continuous service prior to the respondents, they were not entitled to any relief.
The appeal was accordingly dismissed by this Court.
While considering the question of validity of relaxa tion, the Court made observation that Rule 14 did not permit any general relaxation of the nature ordered by the State Government.
The Court, however, did not examine the matter in detail as it was of the view that since the appellants in that case were not eligible for promotion they could not question the validity of the appointment of those who had been promoted on the basis of relaxation being granted by the State Government.
The Court upheld the promotions in view of the extra 480 ordinary situation in which the State Government made ap pointments iv derogation of requirement of Rules.
On a careful scrutiny of the Rules in its various as pects we do not agree with the observations made in Jit Singh 's case (supra).
Though Rule 22 is not happily worded, as apparently it gives an impression that no general relaxa tion can be granted by the State Government, out on a close scrutiny of the scope of the power we find that a narrow construction of the Rules would nullify the Government 's power of relaxing Rules to meet a particular situation.
Rule 22 is beneficial in nature it must be construed in a liberal manner and it should not be interpreted in a manner to defeat the very object and purpose of such power.
Power to grant relaxation may be exercised in case of an individual to remove hardship being caused to him or to a number of individuals who all may be similarly placed.
This power may also be exercised to meet a particular situation where on account of the operation of the Rules hardship is being caused to a set of individual officers.
In the instant case the appellants were found suitable for promotion by the screening committee, the Commission and the State Govern ment, and the contesting respondent Yvas Dev was not found suitable even otherwise for promotion, the State Government granted relaxation of Rule 6(b) in favour of the appellants.
In such a situation, it is beyond comprehension that the power of relaxation under Rule 22 was exercised arbitrarily or that it caused hardship or injustice to any one.
On the formation of the new State of Haryana no promotion from Class II officers could be made to Class I service without granting any relaxation since 1966 to 1978.
In 1971 72 eleven vacancies in the post of Executive Engineers were filled by promotion from Class II officers although none of them had completed requisite period of service prescribed by the Rules for promotion.
In 1976 77 and 1977 78 sixteen and nine vacancies respectively in the post of Executive Engi neers were filled by promotion by granting relaxation as no officer of Class II service possessing requisite number of years of service was available for promotion.
In 1978 79 seven officers of Class II service were promoted to the post of Executive Engineer but only one of them possessed the requisite period of service and all others were granted relaxation.
These facts clearly show that in the absence of relaxation there could be no promotion to the post of Execu tive Engineer and the officers who were found suitable would have suffered great hardship.
In 1973 also the State Govern ment with a view to meet the particular situation exercised its power of relaxation in appellants ' favour.
Having regard to these facts and circumstances, we find no illegality in the appellants ' promotions, pursuant to the relaxation granted by the State Government.
481 In Bansal 's case (supra) the High Court, and even in Jit Singh 's case (supra) this Court did not set aside the promo tions made by the Government pursuant to relaxation of Rules on the ground that the petitioner who challenged the promo tions was himself not qualified, and he had no legal right to hold the post in dispute, although in both these cases Government 's order granting general relaxation was held to be outside the scope of Rule 22 and Rule 14 of the Punjab Police Service Rules 1959.
In the instant case the High Court has set aside the appellants ' promotions following Bansal 's case interpreting Rule 22 but it failed to notice that in that case the High Court did not set aside the promotions instead it dismissed the petition on the ground that the petitioner therein was not qualified and none of his rights were affected.
The High Court failed to notice that Vyas Dev respondent was considered for promotion but he was not found suitable, therefore he was not entitled to any relief.
Since no legal right of the respondent was adversely affected the High Court should not have quashed the appel lants ' promotions.
On behalf of the appellants an alternative submission was made that since the appellants had already completed eight years ' of service in Class H service during the pend ency of the writ petition their appointment stood regula rised.
To support this submission reliance was placed on the decision of this Court in Ram Sarup vs State of Punjab, [1979] 1 SCC 168.
In that case appointment to the post of Labour cum Conciliation Officer was made in breach of Rule 4 Clause (I) of the Punjab Labour Service Class I and II Rules 1955 as Ram Sarup did not possess five years ' experience, required by sub clause (I) of Rule 4, In spite of that he had been appointed to the post of Labour cum Conciliation Officer.
Subsequently, Ram Sarup was reverted on the ground that he was not qualified to be appointed as a Labour cum Conciliation Officer as he did not possess the minimum qualification of length of service.
This Court held that the appointment of Ram Sarup made in breach of Rules was irregu lar, but not wholly void and since Ram Sarup had completed five years of experience of working of labour laws before his reversion, his appointment to the post of Labour cum Conciliation Officer stood regularised with effect from the date he completed five years of service.
On these findings order of reversion was set aside by this Court.
Undisputa bly, the appellants completed eight years of service before January 15, 1980, the date on which the Division Bench of the High Court set aside their promotions.
In view of the principles laid down in Ram Sarup 's case (supra) the appel lants ' appointment, even if irregular, stood regularised on the 482 date they completed eight years of their service and there after their promotions could not be set aside.
We accordingly allow the appeal, set aside the judgment and order of the Division Bench dated 15.1.1980 and restore the order of the learned single Judge dismissing the re spondents ' writ petition.
There will be no order as to costs.
N.P.V. Appeal al lowed.

summary:
The appointment and promotion to Class I Engineering Service in the State of Haryana are regulated by the Haryana Service of Engineers Class I PWD (Public Health Branch) Rules, 1961.
Rule 5 provides for appointment to Class I Service, inter alia, by promotion from Class II Service.
Rule 6(b) prescribed that no person shall be promoted unless he has completed eight years service in Class II and has passed professional examination to the department.
Rule 22 confers power on the Government to relax any of the Rules it may consider necessary.
The appellants and the contesting respondent were mem bers of the Haryana Service of Engineers Class II in the Public Health Branch.
In 1971 the appellants were promoted to the post of Executive Engineers in the cadre of Class I service on ad hoc basis while the respondent was not consid ered for promotion.
Later, a Committee constituted under Rule 8 for selecting suitable candidates for promotion to Class I post, considered the names of the appellants and the respondent but did not find the respondent suitable.
Hence it included the appellant 's|ant 's names only in the select list.
The appellants did not possess the requisite minimum period of service of 8 years in Class II service but since no other suitable candidates were available, the Committee recommended to the Govt.
for granting relaxation to the appellants.
The State Public Service Commission approved the recommendations.
The State Government accepted the recommendations and appointed the appellants to Class I service by a Notification dated May 3, 1973.
471 The contesting respondent filed a Writ Petition before the High Court challenging the validity of the appellants ' promotion on the ground that since the appellants did not possess the requisite qualification for promotion to Class I Service their promotions were contrary to rules.
A Single Judge of the High Court dismissed the petition holding that since the Government had relaxed Rule 6(b) in appellants ' favour, their promotions were sustainable in law.
On appeal, the Division Bench quashed the appellants ' promotion on the ground that the State Government had no authority in law to grant relaxation to the appellants under Rule 22 in a general manner as the power of relaxation could be exercised only in individual cases to mitigate hardship caused to an individual.
Hence the appeal by special leave.
Allowing the Appeal, this Court, HELD: 1. Power to grant relaxation may be exercised in case of an individual to remove hardship being caused to him or to a number of individuals who all may be similarly placed.
This power may also be exercised to meet a particu lar situation where on account of the operation of the rules hardship is being caused to a set of individual officers.
[477G H] 2.
I Rule 22 of the Haryana Service of Engineers Class I PWD (Public Health Branch) Rules 1961 confers power on the Government to dispense with or to relax the requirement of any of the Rules to the extent and with such conditions as it may consider necessary for dealing with the case in just and equitable manner.
The object and purpose of conferring this power on the Government is to mitigate undue hardship in any particular case.
If the Rules cause undue hardship or operate in an inequitable manner, the State Government has power to dispense with or to relax the requirement of Rules.
The Rule does not restrict the exercise of power to individ ual cases.
The Government may in certain circumstances relax the requirement of Rules to meet a particular situation.
[477A B] 2.2.
The expression "in any particular case" does not mean that the relaxation should be confined only to an individual case.
One of the meanings of the expression "particular" means "peculiar or pertaining to a specified person thing time or place not common or general".
The meaning of the word 'particular ' in relation to law means separate or special, limited or specific.
The word 'case ' in ordinary usage means 472 'event ', 'happenings ', 'situation ', 'circumstances '.
The expression 'case ' in legal sense means 'a case '. 'suit ' or 'proceeding in Court or Tribunal '.
Having regard to these meanings the expression 'in any particular case ' would mean in a particular or pertaining to an event, situation or circumstance.
[477C D] 2.3.
Rule 22 postulates relaxation of Rules to meet a particular event or situation, if the operation of the Rules causes hardship. '[he Scope of the said Rule is wide enough to confer power on the State Government to relax the re quirement of Rules in respect of an individual or class of individuals to the extent it may consider necessary dealing with the case in a just and equitable manner.
[477E F] 2.4 The power of relaxation is generally contained in the rules with a view to mitigate undue hardship or to meet a particular situation.
Many a time strict application of service rules create a situation where a particular individ ual or a set of individuals may suffer undue hardship and further there may be a situation where requisite qualified persons may not be available for appointment to the service.
In such a situation, the Government has power to relax requirement of rules.
The state Government may in exercise of its powers issue a general order relaxing any particular rule with a view to avail the service of requisite officers.
The relaxation even if granted in a general manner would enure to the benefit of individual officers.
[477F G] 2.5 Rule 22 is a beneficial one.
It must be construed in a liberal manner and should not be interpreted in a manner to defeat the very object and purpose of such power.
A narrow construction would nullify Government 's power of relaxing rules of meet a particular situation.
[480C] Jit Singh & Ors.
vs State of Punjab & Ors.
, ; differed; Ashok Gulati vs B.S. Jain, ; referred to.
In the instant case, the non availability of Class II officers in Engineering Department possessing the necessary and prescribed qualifications for promotion to Class I posed a problem for the State Government, as on account of the large scale expansion of Engineering Department a number of posts in Class I service were lying vacant.
A similar situa tion prevailed in the Building and Road Branch of Public Works Department.
In the circumstances, the State Government with a 473 view to meet the particular situation decided to relax the qualifying length of service to such officers who had com pleted four years of service in Class 1I.
It, therefore, relaxed the requirement of Rule (b) to the extent that a member of Class II service having four years service was qualified for being considered for promotion in Class I service.
These facts would clearly show that the relaxation had been granted to particular individuals with a view to meet the situation which was in public interest.
There is no legal infirmity in the order of ' relaxation.
[478D F] 3.
I If power of relaxation is exercised on extraneous consideration for oblique purposes or mala fide, the Court has power to strike down the same, but bona fide exercise of power of relaxation to meet a particular situation cannot be held to be arbitrary or illegal.
[479A] 3.2 Since the appellants were found suitable for promo tion by the screening committee, the Commission and the State Government, and as the contesting respondent was not found suitable even otherwise for promotion, the State Government granted relaxation of Rule (b) in favour of the appellants.
In such a situation, it cannot be said that the power of relaxation under Rule 22 was exercised arbitrarily or that it caused hardship to any one.
In the absence of relaxation, there could be no promotion to the post of Executive Engineer and the officers who were found suitable would have suffered great hardship.
Therefore, the State Government with a view to meet the particular situation exercised its power of relaxation in appellants ' favour.
Having regard to the facts and circumstances of the case, there is no illegality in the appellants ' promotion, pursu ant to the relaxation granted by the State Government.
[480D E; G H] Ashok Gulati vs B.S. Jain, AIR 1987 424; Jit Singh & Ors.
vs State of Punjab & Ors.
, ; and Ram Sarup vs State of Punjab, [1979] 1 SCC 168 referred to.


judgement:
ivil Appeal No. 3693 of 1989.
734 From the Judgment and Order dated 23.2.
1989 of Delhi High Court in R.S.A. No. 31 of 1989.
K.S. Bindra, R.K. Maheshwari and G.S. Gujananip for the Appellant.
Prem Sunder Jha for the Respondent.
The Judgment of the Court was delivered by SHARMA, J.
This appeal by special leave arises out of a suit filed by the respondent company against the appellant, Municipal Corporation of Delhi, for a mandatory injunction to restore the supply of electricity discontinued during the pendency of the suit.
Initially the suit was filed for a prohibitory injunction from disconnecting the electric connection.
The plaint was amended following stoppage of the supply of energy.
According to the plaintiff 's case, the suit had to be filed as the Delhi Electricity Supply Undertaking was threatening disconnection without disclosing any reason.
Subsequently, some officers of the Undertaking made an inspection of the meters and alleged theft of electricity after tampering with the seals affixed on the meters.
A First Information Report was lodged with the police.
Admittedly no notice was served by the Delhi Elec tricity Supply Undertaking on the plaintiff before severing the electric connection.
The learned trial court, however, dismissed the suit and the plaintiff appealed.
The First Additional District Judge, Delhi, who heard the appeal decreed the suit on the sole ground of nonservice of notice as required under condition No. 36 in regard to supply of electricity by the appellant.
The Delhi High Court dismissed the appellant 's second appeal at the admission stage by a reasoned judgment.
The learned counsel for the appellant has contended that in view of the conduct of the plaintiff in stealing electricity, the Court should in its discretion refuse to issue a direction for restoration of the electric supply.
We are afraid, it is not possible to agree with the appellant for more reasons than one.
The plaintiff is seriously deny ing the allegation of theft and it is not possible to assume the accusation as correct without a full fledged trial on this issue.
The case of Jagarnath Singh vs
B.S. Ramaswamy; , ; relied upon on behalf of 735 the appellant is clearly distinguishable inasmuch as the consumer in that case was convicted under the Indian Penal Code, and the conviction was being maintained in appeal.
Besides, the service of notice is a prerequisite for discon nection, and the appellant can not be allowed to go back upon its words and refuse the consumer the benefit of notice as contemplated by the agreement.
The learned counsel for the appellant urged that the Delhi Electric Supply Undertak ing will seriously suffer if this view is upheld.
We do not understand as to what is the difficulty in the way of the appellant to serve a notice on the consumer before discon tinuing the supply.
It has to be appreciated that the licen see Undertaking is performing a public duty and is governed by a special statute and the law also contemplates service of a notice before disconnection of supply of electricity.
The courts below have made it clear that they have not examined the case on merits.
The question whether, the allegations of theft are true or not has to be examined and decided in an appropriate proceeding, and the appellant will not, therefore, be prejudiced by the present judgment in its claim.
In the result, the appeal is dismissed but, without costs.
P.S.S. Appeal dismissed.

dataset_name: IN-Abs

summary:
The Delhi Electricity Supply Undertaking disconnected the supply of electricity to the respondent company during the pendency of the suit for a prohibitory injunction with out serving notice on the consumer.
The trial court dis missed the amended suit for mandatory injunction to restore the supply.
The First Appellate Court decreed the suit on the sole ground of non service of notice as required under condition No. 36 in regard to supply of electricity by the appellant.
It did not go into the allegation of theft of electricity by the plaintiff.
The High Court dismissed the appeal.
Dismissing the appeal by special leave, this Court, HELD: 1.
The licensee undertaking is performing a public duty and is governed by a special statute.
The law also contemplates service of a notice before disconnection of supply of electricity.
The appellant cannot also be allowed to go back upon its words and refuse the consumer the bene fit of notice as contemplated by the agreement.
The suit was, therefore, rightly decreed by the First Appellate Court.
[735B C, A B] 2.
The plaintiff is seriously denying the allegation of theft.
It is not possible to assume the accusation as cor rect without a full fledged trial on this issue.
The courts below have not examined the case on merits.
The question whether the allegations are true or not has to be examined and decided in an appropriate proceeding.
The appellant will not, therefore, be prejudiced in its claim by dismissal of the appeal.
[734G H, 735C] Jagarnath Singh vs
B.S. Ramaswamy; , , distinguished.


judgement:
No. 58 of 1983.
(Under Article 32 of the Constitution of India) R.K. Garg and D.K. Garg for the Petitioner.
V.C. Mahajan and L.K. Gupta for the Respondents.
RANGANATH MISRA, J.
In this application under article 32 of the Constitution, petitioner assails the order dated 5th September, 1975, of his compulsory retirement from service with effect from 5th of December, 1975, made under rule 56(j)(i) of the Fundamental Rules.
The impugned order ran thus: "WHEREAS the Director of Audit, Defence Services, New Delhi (appropriate authority) is of the opinion that it is in the public interest to do so, NOW, THEREFORE, in exercise of the powers con ferred by clause (j)(i) of rule 56 of the Fundamental Rules, the Director of Defence Services (appropriate authority) hereby gives notice to Shri C.D. Ailawadi, Audit Officer, Defence Services that he, having already attained the age of 50 years on the 22nd November, 1969, shall retire from service with effect from the forenoon of the 4th of Decem ber, 1975, or from the date of expiry of three months com puted from the date of the service of this notice on him, whichever is later." The petitioner has pleaded that he was efficient and had risen 785 from the rank of a Clerk to the post of Audit Officer in which he was confirmed with effect from 3.12.
Accord ing to him, he had clear and unblemished record of service.
He had held independent charge of the senior post of Deputy Director of Audit and had been paid an additional amount of Rs. 100 per month for the period.
He also alleged that his character roll entries were excellent.
According to him, it was the obligation of the appropriate authority to review the petitioner 's case six months before he attained the age of 50 or completed thirty years of service.
Since no such review had been made or on the basis of review petitioner had not been retired, he was entitled to continue upto the age of 58, which is the normal age of retirement.
According to him, all cases of premature compulsory retirement made during the emergency were reviewed in terms of the Govern ment circular of lOth of August, 1978, but the representa tions made by the petitioner for the benefit of review in terms of the said circular were not heeded to and the peti tioner was, therefore, obliged to file the present petition.
In the return to the rule nisi by the Director of Audit, Defence Services, it has been contended that the order of retirement was made in public interest after review of the petitioner 's case.
It has been stated in the said affidavit: "In the case of Shri Ailawadi the Committee after review of his complete record of service observed that his earlier services were of a very marginal nature and he earned some adverse reports later.
The Committee, therefore, considering the quality of his work on the whole, concluded that Shri Ailawadi was not fit to be retained in the public interest.
The Appropriate Authority felt that his reports for the last few years were poor, colourless and indicative of steady deterioration attributed to family problems and to his state of health.
The Appropriate Authority also took into account his latest report for the year 1974 75 which assessed him as 'barely competent to hold an officer 's post '.
" The character roll entries have also been placed before the Court at the time of heating of this writ petition.
We have checked the same and in particular those for five years prior to the date of the impugned order.
In 1969 70, his ability was considered to be average.
His thought and ex pression were said to be vague and rambling.
Deterioration of his physical health was taken note of and the general assessment was that he was an average officer.
In the fol lowing year the reviewing 786 authority after treating him to be an average officer en dorsed the following direction: "I am inclined to think that the entire report may be commu nicated to him and he must be told so to exert himself that he earns a more commendable report next year. ' ' This appears to have been shown to him and his signature had been taken on 3.8.1971.
During the years 1972 73, 1973 74 and 1974 75, he was branded as an average officer.
In the last year it was indicated that his intelligence was of low order and though he was physically fit, he was not mentally alert.
It was also indicated that he was barely competent to hold an officer 's post.
In the report for a part of 1974 75 he was branded as poor and against the column of 'general assess ment ', it was shown that 'he was not sure of himself.
We have extracted entries from the character roll to meet the petitioner 's contention that he had an excellent record of service.
Mr. D.K. Garg, appearing for the petitioner has supple mented the arguments by a written note which has also been looked into.
Petitioner does not challenge the validity of the rule; nor does he allege that the order of compulsory retirement is the outcome of mala fides.
An aggrieved civil servant can challenge an order of compulsory retirement on any of the following grounds as settled by several decisions of this Court: (i) that the requisite opinion has not been formed; or (ii) that the decision is based on collateral grounds; or (iii) that it is an arbitrary decision.
In Union of India vs Col. J.N. Sinha & Anr., [1971] 1 SCR 791 this Court held that if the civil servant is able to establish that the order of compulsory retirement suffered from any of the above infirmities, the Court has jurisdiction to quash the same.
It is not disputed that compulsory retirement under rule 56(j) is not a punish ment as it does not take away any of the past benefits.
Chopping off the dead wood is one of the important consider ations for invoking rule 56(j) of the Fundamental Rules.
1n the instant case, on the basis of the service record, the Committee formed the requisite opinion that the petitioner had ceased to be useful and, therefore, should be retired prematurely.
We do not think petitioner has been able to place 787 any satisfactory material for the contention that the deci sion was on collateral grounds.
Once the opinion is reached on the basis of materials on record, the order cannot be treated to be arbitrary.
The service record of more than five years which we have perused shows that the higher officers under whom the petitioner had worked were different and different sets of reviewing officers had also made the entries.
Therefore, the reports must be taken to have re flected a appropriate and objective assessment of the per formance of the petitioner.
The writ petition must accordingly fail and is, there fore, dismissed.
There shall be no order as to costs.
N.P.V. Petition dismissed.

summary:
In a Writ Petition flied before this Court, the peti tioner assailed the order of his compulsory retirement from service made under rule 56(j)(i) of the Fundamental Rules.
The petitioner contended that he was efficient, had clear and unblemished record of service and his character roll entries were excellent, and since no review has been made six months before he attained the age of 50 or completed thirty years of service nor he had been retired on the basis of review, he was entitled to continue upto the normal retirement age of 58.
On behalf of the respondents, it was contended that the order of retirement was made in public interest after review and that the Committee had concluded after reviewing com plete record of service and considering the quality of work on the whole, that the petitioner was not fit to be retained in public interest.
Dismissing the Writ Petition, this Court, HELD: 1.1 Compulsory retirement under rule 56(j)(i) is not a punishment as it does not take away any of the past benefits.
Chopping off the dead wood is one of the important considerations for invoking rule 56(j)(i) of the Fundamental Rules.
[786G] 1.2 An aggrieved civil servant can challenge an order of compulsory retirement on the ground (i) that the requisite opinion has not been formed; or (ii) that the decision is based on collateral grounds; or (iii) that it is an arbi trary decision.
If the civil servant is able to establish that the order suffered from any of these infirmities, the Court has jurisdiction to quash the same.
[786F G] Union of India vs Col. J.N. Sinha & Anr., [1971] 1 SCR 791, referred to.
784 In the instant case, on the basis of the service record, the Committee formed the requisite opinion that the peti tioner had ceased to be useful and, therefore, should be retired prematurely.
The petitioner has not placed any satisfactory material to prove that the decision was based on collateral grounds.
Once the opinion is reached on the basis of materials on record, the order cannot be treated to be arbitrary.
The service record of more than five years shows that the higher officers under whom the petitioner had worked were different and different sets of reviewing offi cers had also made the entries.
Therefore, the reports must be taken to have reflected an appropriate and objective assessment of the performance of the petitioner.
[786H; 787A B]


judgement:
Appeal No. 108 of 1954.
Appeal from the judgment and decree dated March 21, 1952, of the Calcutta High Court in Appeal from Appellate Decree No. 971 of 1950, arising out of the judgment and decree dated August 29, 1950, of the Court of District Judge of Zillah Burdwan in Title Appeal No. 247/16 of 1948 against judgment and decree dated September 25, 1948, of the Court of Additional Sub Judge, 1st Court, Burdwan, in Title Suit No. 7 of 1946/27 of 1947.
1311 N. C. Chatterjee and Sukumar Ghose, for the appellant.
J. N. Banerjee and P. K. Ghose, for the respondents.
September 18.
The Judgment of the Court was delivered by VENKATARAMA AIYAR J.
This is an appeal by the plaintiff against the judgment of the High Court of Calcutta in a second appeal which, in reversal of the judgments of the Courts below dismissed his suit, which was one in ejectment.
The suit property is a Mahal of the extent of 84 Bighas 18 Cottas situated within lot Ahiyapur village, which is one of the villages forming part of the permanently settled estate of Burdwan Zamindari.
This village was granted by the Maharaja of Burdwan in Patni settlement to the predecessors in title of defendants I to 7.
The exact date of this grant does not appear, but it is stated that it was sometime prior to the enactment of the Bengal Patni Taluks Regulation, 1819 (Bengal Regulation VIII of 1819), hereinafter referred to as the Regulation, and nothing turns on it.
The Mahal with which this litigation is concerned, had been at or prior to the permanent settlement set apart as Chaukidari Chakaran lands; that is to say, they were to be held by the Chaukidars for rendering service in the village as watchmen.
In 1870, the Village Chaukidari Act, 1870 (Ben.
VI of 1870), hereinafter referred to as the Act, was passed, and section 48 of that Act provides that all Chaukidari Chakaran lands assigned for the benefit of any village shall be transferred to the zamindar of the estate in the manner and subject to the provisions contained in the Act.
Under section 50, the Collector is authorized to make an order transferring those lands to the Zamindar after determining the assessment payable thereon, and section 51 enacts that: " Such order shall operate to transfer to such zamindar the land therein mentioned subject to the amount of assessment therein mentioned, and subject 1312 to all contracts theretofore made, in respect of, under, or by virtue of, which any person other than the zamindar may have any right to any land, portion of his estate, or tenure, in the place in which such land may be situate.
" In accordance with the provisions aforesaid, the suit properties were transferred to the Maharaja of Burdwan, and on June 3,1899, he granted the same to the predecessors in title of defendants I to 7, who at that time held the Patni interest in respect of lot Ahiyapur.
Under the grant which has been marked as exhibit B, the yearly rental for the area was fixed at Rs. 126 8 as., out of which Rs. 84 4 as., had to be paid to the Panchayat within the 7th of Baisakh for being credited to the Chaukidari Fund and the balance of Rs. 42 4 as., was to be paid to the Zamindar within the month of Chaitra.
Exhibit B also provides that in default of payment of kist the lands are liable to be sold in proceedings taken under the Bengal Regulation VIII of 1819.
Acting under this clause, the Maharaja applied under section 8 of the Regulation to bring the suit lands to sale for realisation of arrears, and at the auction held on May 15, 1937, himself became the purchaser.
On February 13, 1941, he granted the lands again on Patni to the appellant, who filed the suit, out of which the present appeal arises, in the Court of the Subordinate Judge, Burdwan, to recover possession thereof from the defendants alleging that they had trespassed thereon.
The respondents contested the suit on the ground that, in fact, there were no arrears of rent due under Exhibit B, and that the sale was therefore void.
The Subordinate Judge held that there were arrears of rent due from the respondents, and that further as they had not sued to set aside the sale under section 14 of the Regulation within the time limited by law, they could not set up its invalidity as a defence to the action in ejectment.
The defendants preferred an appeal against this judgment to the District Court of Burdwan, and there raised a new contention that under the grant, Exhibit B, the suit lands became part of lot Ahiyapur, and that a sale of those lands was 1313 illegal as being a sale of a portion of the Patni.
The District Judge after observing that the point was taken for the first time, held on a construction of Exhibit B that it created a new Patni, and that it could therefore be brought to sale, and he also held that section 14 of the Regulation operated as a bar to the validity of the sale being questioned on the ground that the rent claimed was not, in fact, due.
He accordingly dismissed the appeal.
The respondents took the matter in second appeal to the High Court, and that was heard by a Bench consisting of Das Gupta and Lahiri JJ.
who differed from the District Judge both on the construction of Exhibit B and on the bar of limitation based on section 14 of the Regulation.
They held that the effect of Exhibit B was merely to make the suit lands part and parcel of the Patni lot Ahiyapur, and that, therefore, the sale of those lands only was bad, as being a sale of a part of the Patni.
They further held that as such a sale was void, section 14 of the Regulation had no application.
They accordingly allowed the appeal, and dismissed the suit.
It is against this judgment that the present appeal has been brought on a certificate granted by the High Court under article 133(1)(a).
Mr. N. C. Chatterjee for the appellant urged the following contentions in support of the appeal: (1) The defendants did not raise either in the written statement or during the trial, the plea that under the sanad, Exhibit B, the Chaukidari Chakaran lands comprised therein became part of the Patni settlement of lot Ahiyapur, and, in consequence, their sale was bad as being of a part of the Patni, and the learned Judges should not have allowed that point to be raised in appeal.
(2) Exhibit B properly construed must be held to create a new Patni distinct from lot Ahiyapur, and its sale is therefore valid.
(3) Assuming that the sale is invalid as being of a part of a tenure, the only right of the defendants was to sue to have it set aside, as provided in section 14 of the Regulation, and that not having been done, it is not open to them to attack it collaterally in these proceedings.
We see no substance in the first contention.
It is 1314 true that the defendants did not put forward in the trial Court the plea that the effect of Exhibit B was to incorporate the suit lands in lot Ahiyapur Patni, and that, in consequence, the sale was illegal as being of a part of the Patni.
On the other hand, the written statement proceeds on the view that Exhibit B created a new Patni unconnected with lot Ahiyapur, and the only defence raised on that basis was that no arrears of rent were due under Exhibit B, and that the sale was therefore invalid.
But the true nature of the grant under Exhibit B is a matter to be decided on a construction of the terms of the document, and that is a question of law.
It is argued for the appellant that it would be proper in determining the true character of the grant under Exhibit B to take into account surrounding circumstances, that to ascertain what those circumstances are, it will be necessary to take evidence, and that, in consequence, a question of that kind could not be permitted to be agitated for the first time in appeal.
But it is well settled that no evidence is admissible on a question of construction of a contract or grant, which must be based solely on the terms of the document, there being no suggestion before us that there is any dispute as to how the contents of the document are related to existing facts.
Vide Balkishen Das vs Legge (1) and Maung Kyin vs Ma Shwe La (2).
It should, moreover, be mentioned that when the defendants sought to raise this contention in their appeal in the District Court, no objection was taken by the plaintiff thereto.
Under the circumstances, the learned Judges were right in allowing this point to be taken.
This contention must therefore be rejected.
The next point for determination is as to the true character of the grant under Exhibit B, whether it amounts to a new Patni with reference to the Chaukidari Chakaran lands as contended for by the appellant, or whether it incorporates those lands in the Patni of lot Ahiyapur, so as to make them part and parcel of the lands comprised therein, as is maintained by the respondents.
To appreciate the (1) (1899) L.R. 27 I.A. 58, 65.
(2) (1917) L.R 44 I.A. 236, 243.
1315 true position, it is necessary to examine what the rights of the Zamindar and of the Patnidar were with respect to Chaukidari Chakardan lands at the time of the grant, Exhibit B.
These lands had been originally set apart as remuneration for the performance of services by the village chaukidars as watchmen, and for that reason when the village was granted to the Zamindar in permanent settlement, the income therefrom was not taken into account in fixing the jama payable by him, though they passed to him under the permanent settlement.
Then came the Village Chaukidari Act, and under that Act the Government put an end to the services of the Chaukidars as village watchmen, resumed the lands and imposed assessment thereon, and, subject to it, transferred them to the Zamindar; and where the Zamindar had already parted with the village in which the lands were situate, by granting Patni, it became necessary to define the rights of the Zamindar and the Patnidar with reference to those lands.
Dealing with this matter, section 51 of the Act provides that the title of the Zamindar on resumption and transfer by the Government shall be subject to " all contracts theretofore made ".
Under this section, the Patnidar would be entitled to the Chaukidari Chakaran lands in the same right and on the same terms on which lie held the village in which they are situate.
The nature of this right has been the subject of consideration in numerous authorities, and the law on the subject is well settled.
In Ranjit Singh vs Maharaj Bahadur Singh (1), it was held by the Privy Council that though the reservation under section 51 is of rights under contracts made by the Zamindar and the word " contract " primarily means a transaction which creates personal obligations, it might also refer to transactions which create real rights, and that it was in that sense the word was used in section 51, and that accordingly the Patnidar was entitled to institute a suit against the Zamindar for possession of those lands and was not obliged to suit for specific performance.
But this does not mean that the Patnidar is (1) (1918) L.R. 45 I.A. 162.
167 1316 entitled to hold the lands free of all obligations.
He is under a liability to pay to the Zamindar the assessment due thereon, when it is fixed under section 50, and also a share of profits.
Vide Bhupendra Narayan Singh vs Narapat Singh (1), where it was held by the Privy Council that when Chaukidari Chakaran lands included in a Patni settlement had been resumed and transferred to the Zamindar under section 51 of the Act, he is entitled to the payment of a fair and equitable rent in respect thereof, and that the fixing of the rent is a condition to the Patnidar being put in possession.
Vide also Rajendra Nath Mukherjee vs Hiralal Mukherjee (2) and Gopendra Chandra vs Taraprasanna (3).
These being the rights and obligations of the Zamindar and the Patnidar under section 51 of the Act, a grant of the Chaukidari Chakaran lands by the former to the latter serves, in fact, two purposes.
It recognises that the grantee is entitled to hold those lands by virtue of his title as Patnidar of the village of which they form part, and it fixes the amount payable by him on account of assessment and share of profits.
The question then arises as to what the exact relationship is in which the new grant stands to the original Patni grant.
Now, when section 51 of the Act recognises and saves rights which had been acquired under contract with the Zamindar, its reasonable implication is that the rights so recognised are the same as under the contract, and that, in consequence, the settlement of the Chaukidari Chakaran lands in Patni must be taken to be a continuance of the Patni of the village in which they are included.
But it is open to the parties to agree that the Chaukidari Chakaran lands should form a new and distinct Patni, and the result of such an agreement will be that while the grantee will hold those lands in Patni right, that is to say, the tenure will be permanent, heritable and alienable so far as his liability to pay jama and the corresponding right of the Zamindar to sell it under the Regulation if there is any default in the (1) (1925) L.R. 52 I.A. 355.
(2) (3) Cal.
1317 payment thereof are concerned, the now grant will be an entity by itself independent of the original Patni.
That that could be done by agreement of parties is well settled, and is not disputed before us.
If that is the true position, then the real question to be considered is, what is the agreement of parties with reference to the Chaukidari Chakaran lands, whether they are to be constituted as an independent Patni or whether they should be treated as a continuation of the original Patni or an accretion thereto, and the answer to it must depend on the interpretation to be put on the grant.
It is now necessary to refer to the material terms of Exhibit B under which the Chaukidari Chakaran lands were granted to the predecessors of respondents I to 7.
It begins by stating that the Patnidars of lot Ahiyapur appeared before the Zamindar and ,prayed for taking Patni settlement of the said 84 Bighas 18 Cottas of land at a yearly rental of Rs. 126/8 as.", and then provides how the amount is to be paid.
Then there is the following clause, which is important: "You will pay the rent etc., Kist after Kist according to the Kistbandi in accordance with law, and if you do not pay the same, I will realise the arrears together with interest and costs by causing the aforesaid lands to be sold by auction by instituting proceedings under Regulation VIII of 1819 and other laws which are in force or will come into force. " Then follow provisions relating to the transfer by the Patnidars of " the aforesaid lands ", succession by inheritance or by will to " the aforesaid lands " and the registration of the name of the transferee or successor in the Sherista, and it is expressly stated that "so long as the name of the new Patnidar is not recorded in the Sherista, the former Patnidar whose name is recorded in the Sherista will remain liable for the rent, and on a sale of the Mahal by auction on institution of proceedings against him under Regulation VIII of 1819 or any other law that will be in force for realisation of arrears of rent, no objection thereto on the Part of the new Patnidar can be entertained." 1318 Then ,there are two clause on which on the respondents rely, and they are in these terms: " If in future it transpires that any other persons besides yourselves have Patni rights in the Patni interest of the, said lot Ahiyapur, such persons shall have Patni rights in these Chakaran lands also to the same extent and in the same manner as they will be found to have interests in the Patni of the aforesaid lot, and if for the said reason any person puts forward any claim against the Raj Estate and the Raj Estate has to suffer any loss therefor, you will make good the said claim and the loss without any objection.
If in future the Patni interest in the said lot Ahiyapur be transferred for liability for arrears of rent or if the same comes to an end for any reason, then your Patni interest in these Chakaran lands also will be transferred or will come to an end alongwith the original Patni ,simultaneously.
" It is on these two clauses that the learned Judges in the Court below have based their decision that the intention of the par ties was to treat the suit lands as part of the Patni of lot Ahiyapur.
Now, it cannot be disputed that the two clauses aforesaid afford considerable support to the conclusion to which the learned Judges have come.
The first clause provides that if besides the grantee under Exhibit B there were other persons entitled to Patni rights in lot Ahiyapur, those persons also shall have Patni rights in Chaukidari Chakaran lands to the same extent as in Patni Ahiyapur.
That clearly means that the rights conferred on the grantees under Exhibit B have their roots in the Patni lot of Ahiyapur.
Likewise, the provision in the last clause that the grantees will lose their rights to the Chaukidari Chakaran lands if their interest in Ahiyapur Patni was sold clearly suggests that the grant under Exhibit B is to be an annexe to the grant of Ahiyapur.
As against this, the appellant argues that the other clauses in Exhibit B quoted above strongly support his contention, and that when the document is read as a whole, it unmistakably reveals an intention to treat the suit lands as a distinct Patni.
We must now 1319 refer to these clauses.
Exhibit B begins by reciting that the grantees desired to take a Patni settlement of 84 Bighas 18 Cottas, which is some indication, though not very strong, that it is to be held as a distinct entity.
We have then the clause which provides that when there is default in the payment of kist, the lands are liable to be sold in proceedings instituted under the Regulation.
Now, the law had long been settled that a sale of a portion of a Patni is bad, but that if by agreement of all the parties interested different portions thereof are held under different sadads, which provide for sale of those portions for default in pay ment of kist payable respectively thereon, then each of those sanads might be held to have created a separate Patni in respect of the portion comprised therein.
Vide Mohadeb Mundul vs Mr. H. Cowell(1) and Monomothonath Dev and another vs Mr. G. Glascott (2).
When, therefore, the Zamindar and the Patnidar agreed under Exhibit B that the lands comprised therein could be sold under the Regulation when there was default in payment of kist fixed therefor, they must clearly have intended that those lands should be constituted into a distinct Patni.
Otherwise, the clause will be inoperative and void, and indeed, the learned Judges in the Court below have, on that ground, declined to give any effect to it.
Now, it is a settled rule of interpretation that if there be admissible two constructions of a document, one of which will give effect to all the clauses therein while the other will render one or more of them nugatory, it is the former that should be adopted on the principle expressed in the maxim " ut res magis valeat quam per eat ".
What has to be considered therefore is whether it is possible to give effect to the clause in question, which can only be by construing Exhibit B as creating a separate Patni, and at the same time reconcile the last two clauses with that construction.
Taking first the provision that if there be other persons entitled to the Patni of lot Ahiyapur they are to have the same rights in the land comprised in Exhibit B, (2) (1873) 20 Weekly Reporter 275.
1320 that no doubt posits the continuance in those persons of the title under the original Patni.
But the true purpose of this clause is, in our opinion, not so much to declare the rights of those other persons which rest on statutory recognition, but to provide that the grantees tinder the document should take subject to those rights.
That that is the purpose of the clause is clear from the provision for indemnity which is contained therein.
Moreover, if on an interpretation of the other clauses in the grant, the correct conclusion to come to is that it creates a new Patni in favour of the grantees thereunder, it is difficult to see how the reservation of the rights of the other Patnidars of lot Ahiyapur, should such there be, affects that conclusion.
We are unable to see anything in the clause under discussion, which militates against the conclusion that Exhibit B creates a new Patni.
Then there is the clause as to the cesser of interest of the grantees in the Chaukidari Chakaran lands when their title to lot Ahiyapur comes to an end, and according to the respondents, this shows that under Exhibit B the Chaukidari Chakaran lands are treated as part and parcel of the Ahiyapur Patni.
If that were so, a sale of lot Ahiyapur must carry with it the Chaukidari Chakaran lands, they being ex hypothesi, part and parcel thereof, and there was no need for a provision such is is made in the last clause.
But that clause would serve a real purpose if the Patni under Exhibit B is construed as separate from that of lot Ahiyapur.
In that view, when the major Patni of lot Ahiyapur is sold, the intention obviously is that the minor Patni under Exhibit B, should not stand out but be extinguished, a result which could be achieved only by a special provision.
We should finally refer to the clauses in Exhibit B providing for transfer of or succession to the Chaukidari Chakaran lands and for the recognition of such transferee or successor as a Patnidar of those lands.
It is clear from these provision,s that such a transferee or successor is to hold the lands as a Patnidar, different from the Patnidar of lot Ahiyapur.
Reading these clauses along with the last clause, it seems clear that the intention of the parties 1321 was that while a transfer of the Ahiyapur Patni by sale should extinguish the title of the holders of the Chaukidari Chakaran lands a transfer of these lands would have no effect on the title to the lot Ahiyapur Patni.
Construing Exhibit B, as a whole, we are of opinion that the intention of the parties as expressed therein was that the Chaukidari Chakaran lands should be held as a distinct Patni.
We must now refer to the decision on which the learned Judges in the Court below have relied in support of their conclusion.
In Kanchan Barani Debi vs Umesh Chandra (1), the facts were that the Maharaja of Burdwan had created a Patni of lot Kooly in 1820.
The Chaukidari Chakaran lands situated within that village were resumed under the Act and transferred to the Zamindar who granted them in 1899 to one Syamlal Chatterjee in Patni on terms similar to those in Exhibit B.
In 1914 the Patni lot Kooly was sold under the Regulation, and purchased by Sint.
Kanchan Barani Debi.
She then sued as such purchaser to recover possession of the Chaukidari Chakaran lands.
The defendants who represented the grantees under the Patni settlement of 1899 resisted the suit on the ground that the sale of Patni Kooly did not operate to vest in the purchaser the title in the Chaukidari Chakaran lands, as they formed a distinct Patni.
Dealing with this contention, B. B. Ghose J. who delivered the judgment of the Court, observed : concerned to alter the terms of the original patni if they chose to do so; and what we have to see is whether that was done.
In order to do that, we have to examine the terms of the pattah by which the Chaukidari Chakaran lands were granted to Syamlal Chatterjee." The learned Judge then refers to the two clauses cor responding to the last two clauses in Exhibit B, and comes to the conclusion that their effect was merely to, restore the position as it was when the original Patni was created, and that, in consequence, the purchaser was entitled to the Patni as it was created in 1820, (1) A.I.R. 1925 Cal.
807, 1322 and that the plaintiff was entitled to the possession of the Chaukidari Chakaran lands as being part of the Patni.
Now, it is to be observed that in deciding that the Chaukidari Chakaran lands granted in 1899 became merged is lot Kooly, as it was in 1820, the learned Judge did not consider the effect of the clause providing for sale of those lands as a distinct entity under the provisions of the Regulation when there was default in the payment of ret payable thereon under the deed, and that, in our opinion, deprives the deci sion of much of its value.
In the result, we are unable to hold that the two clauses on which the learned Judges base their conclusion are really inconsistent with the earlier clauses which support the view that the grant under Exhibit B is of a distinct Patni.
Nor do we agree with them that the earlier clause providing for the sale of the Chaukidari Chakaran lands in default of the payment of jama, should be construed so as not to override the later clauses.
If, in fact, there is a conflict between the earlier clause and the later clauses and it is not possible to give effect to all of them, then the rule of construction is well established that it is the earlier clause that must override the later clauses and not vice versa.
In Forbes vs Git (1), Lord Wrenbury stated the rule in the following terms : " If in a deed an earlier clause is followed by a later clause which destroys altogether the obligation created by the earlier clause, the later clause is to be rejected as repugnant and the earlier clause prevails.
In this case the two clauses cannot be reconciled and the earlier provision in the deed prevails over the later.
" We accordingly hold that Exhibit B created a new Patni and that the sale of the lands comprised therein is not bad as of a portion of a, Patni.
We are conscious that we are differing from the learned Judges of the Court below on a question relating to a local tenure on which their opinion is, by reason of the special knowledge and experience which they have of it, entitled to the greatest weight.
It is also true that the decision in Kanchan Barani Debi vs (1) ,259.
1323 Umesh.
Chandra (1) has stood now for over three decades, though it is pertinent to add that its correctness does not appear to have come up for consideration in any subsequent decision of the Calcutta High Court, prior to this litigation.
But then, the question is one of construction of a deed, and our decision that the effect of an agreement of the kind in Exhibit B was to constitute the Chaukidari Chakaran lands into a distinct Patni will not result in any injustice to the parties.
On the other hand, the rule that a portion of a Patni should not be sold being one intended for the benefit of the Patnidars, there is no reason why an agreement entered into by them with the Zamindars providing for the sale of a portion, thereof which is really to their advantage, should not be given effect to.
Having anxiously considered the matter, we have come to the conclusion that Exhibit B creates a distinct Patni, that the sale thereof on May 15, 1937, is valid, and that the plaintiff has therefore acquired a good title to the suit lands under the grant dated February 13, 1941.
In this view, it is unnecessary to express any opinion on the point that was the subject of considerable argument before us as to whether it is open to the defendants to raise the invalidity of the sale held on May 15, 1937, in answer to this action, they not having taken steps to have set it aside, as provided in section 14 of the Regulation.
In the result, the appeal is allowed, the judgment of the lower Court reversed and that of the District Judge restored, with costs throughout.
Appeal allowed.
(1) A.I.R. 1925 Cal.

summary:
The lands in question are situate in lot Ahiyapur which is one of the villages forming part of the permanently settled estate of Burdwan and had been set apart as Chaukidari Chakaran lands to be held by the Chaukidars for rendering service in the village as watchmen.
At the time of the permanent settlement the income from these lands was not taken into account in fixing the jama payable on the estate.
Some time before the enactment of the Bengal Patni Taluks Regulation, 1819, the entire village of Ahiyapur was granted by the then 1310 Zamindar of Burdwan, to the predecessors in title of the defendants on Patni settlement.
In 1870 the Village Chaukidari Act came into force and acting under the provisions of that Act the Government put an end to the services of the Chaukidars resumed the lands and imposed an assessment thereon, and, subject to it, transferred the lands to the Zamindar.
On June 3, 899, the Zamindar granted the suit lands on Patni to the predecessors in title of the defendants who were the then holders of the village in Patni.
In proceedings taken by the Zamindar under the provisions of the Bengal Patni Taluks Regulation, 1819, the suit lands were brought to sale for arrears of rent and purchased by him.
On February I3, 1941, the Zamindar sold the lands to the appellant who sued to recover possession thereof from the defendants.
The defendants resisted the suit on the ground, inter alia, that the effect of the grant of the Chaukidari Chakaran lands on June 3, 1899, was to make them part and parcel of the Patni settlement of the village of Ahiyapur and that, in consequence, the sale of those lands, apart from the village of Ahiyapur, was bad as being a sale of a portion of the Patni.
Held, that when the Zamindar made a grant of the Chaukidari Chakaran lands which formed part of a village which had previously been settled in Patni, it was open to the parties to agree that those lands should form a new and distinct Patni and the result of such an agreement would be that while the grantee would hold those lands in Patni right, that is to say, that the tenure would be permanent, heritable and alienable, so far as his liability to pay jama and the corresponding right of the Zamindar to sell it under the Regulation if there was a default in the payment thereof were concerned, the new grant would be a distinct Patni, independent of the original Patni.
Held, further, that construing the grant dated June 3, 899, as a whole, the intention of the parties as expressed therein was that the Chaukidari Chakaran lands were to be treated as a distinct Patni and that, therefore, the sale of the lands for arrears of rent was valid.