judgement:
ivil Appeal Nos.
993 & 994 of 1976.
378 From the Judgment and Order dated 16.9.1974 of the Allahabad High Court in Spl.
Civil Appeal Nos. 622 & 623 of 1972.
R.K. Virmani for the Appellant.
M.V. Goswami and S.S. Khanduja for the Respondents.
The Judgment of the Court was delivered by M. FATHIMA BEEVI, J.
1.
These two appeals by special leave are filed by the Municipal Board, Bareilly, against the judgment of the Allahabad High Court quashing the Ga zette Notification dated August 27, 1969 amending the octroi schedule of the Bareilly Municipality so as to impose octroi on "mineral oil".
The respondents Bharat Oil Company and others filed writ petitions under Article 226 of the Constitution of India challenging the notification on the ground inter alia that the appellant, the Municipal Board Bareilly (hereinaf ter referred to as 'the Board ') had no authority to impose octroi on mineral oil in view of the proviso to Rule 13 1 of the octroi Rules contained in the U.P. Municipal Account Code, 1925.
This was countered by the appellant stating that the R. 13 1 was superseded by the 1963 rules which govern the imposition of octroi by the appellant Board.
The Single Judge in allowing the Writ Petitions took the view that R.131 restricted the power of the Board to impose the octroi and the subject matter of the rule is not covered by the 1963 rules.
The appeals preferred were dismissed by the Division Bench of the High Court agreeing that the bar under R. 131 'regarding the imposition of octroi duty on mineral oils continued notwithstanding the 1963 rules.
The appellant is a Municipal Board governed by the provisions of the U.P. Municipalities Act, 1916 (hereinafter referred to as 'the Act ').
Section 128 of the Act provides for imposition of taxes by a Municipal Board.
The relevant part of the said section reads as under: "128.
Taxes which may be imposed (1) Subject to any general rules or special orders or ' the State Government in this behalf, the taxes which a board may impose in the whole or any part of a municipality are (i) x x x 379 (viii) an octroi On goods or animals brought without the municipality for consump tion, use or sale therein.
Sections 13 1 to 135 of the Act contain provisions relating to the framing of proposals for the imposition of taxes by the Municipal Board, inviting objections to the said proposal, the approval of the said proposal by the State Government, the framing of rules by the State Govern ment on the basis of such proposals, under Section 296 of the Act and for the issue of a notification about the impo sition of tax from the appointed date.
Section 153 of the Act provides that assessment and collection of taxes and other matters relating to taxes may be regulated by Rules.
Section 296 empowers the State Gov ernment to make rules in respect of matters described in Section 153.
In exercise of the powers under Sections 13 1 to 135 and 296 of the Act, the Government of the United Provinces framed octroi rules which were published vide notification dated the 25th October, 1925.
The said rules are included in the Municipal Account Code (Chapter X Rules 13 1 to 23 1) published by the Government of U.P. 7.
Rule 13 1 provided that subject to the exceptions contained in the proviso octroi may be ordinarily levied on commodities included in the list set out in the said rule.
The proviso to this rule stated that octroi shall not be levied on certain articles which included mineral oil.
Rule 131 was amended vide notification dated the 2nd November, 1953 and for the words "the mineral oil" in the proviso the words "mineral oils classified as motor spirit, kerosene or diesel oil" were substituted.
Separate rules for the assessment and collection of octroi in the Bareilly Municipality were framed by the Government of U.P. in exercise of the powers conferred by Section 296 of the Act.
The draft rules were notified vide notification dated the 16th February, 1963 and published in the U.P. Gazette dated 23rd February, 1963.
The said notifi cation reads as under: "No. 89 B/XI C 129 60.
The following draft of the rules for the assessment and collection of octroi in the Bareilly Municipality, in super session of the existing octroi rules contained in the Municipal Account Code in so far as they apply to the said municipality, which the Governor of Uttar 380 Pradesh proposes to make, in exercise of the powers conferred by Section 296 of the U.P. Municipalities Act, 1916 (U.P. Act No. II of 1916), is published as required by subsection (1) of section 300 of the said Act, for the information of all concerned with a view to invite objections and suggestions in respect thereof".
Final Rules were notified vide notification dated the 7th May, 1963 and published by the Government in the U.P. Gazette dated the 11th May, 1963 as required under section 300 of the Act.
By notification dated the 24th July, 1963 published in the U.P. Gazette dated the August 3, 1963 the appellant Board imposed octroi duty on goods and animals brought within the octroi limits of Bareilly Municipality for con sumption, use and sale at the rates shown in the schedule to the said notification and subject to the exceptions con tained therein.
Item 29 of the exceptions contained in the schedule related to "mineral oils" classified as motor spirit, kerosene and diesel oil.
The said notification came into operation from November 16, 1963.
Thereafter the levy of octroi in the Bareilly Municipality was governed by 1963 rules.
The amendments were made in the octroi schedule both in the rates as well as in the exemption and as a result thereof motor spirit, kerosene and diesel oil were removed from the exemption clause and were subjected to the octroi duty @ 1 paisa per litre vide notification dated August 27, 1969.
The validity of the notification dated the 27th August, 1969 was challenged before the High Court in the Writ Petitions Nos.
1805 and 4696 of 1970 by respondents on the ground that 1925 rules take away the power from all Municipal Boards to impose octroi duty on mineral .oils and until such power is restored under a contrary notification issued under Section 128 of the Act, the Board did not have any justification to assess or collect octroi duty on miner al oils.
The impugned judgment proceeded on the basis that Rules 13 1 to 133 of the 1925 rules have been made by the State Government in exercise of the powers conferred upon it by the opening words of Section 128(1) and they are not rules under section 153 for the assessment and collection of octroi.
It was also held that the subject matter of these rules is not covered by the 1963 rules and, therefore, the 1963 rules cannot supersede R. 13 1 of the 1925 Rules.
A Full Bench of the Allahabad High Court in M/s Central Dis tillery Chemicals Works Ltd. & Another vs State of U.P. & Others, [1980] All L.J. 62 following the 381 decision of this Court in Municipality of Anand vs State of Bombay, ; overruled the impugned decision holding that the special rules which are in relation to a particular tax and a particular Municipal Board will over ride or supersede the general rules framed by State Govern ment under Section 153 read with Section 296.
The appel lant 's learned counsel relied on the Full Bench decision and maintained that the rules framed by the Board prevail over the rules contained in the Municipal Account Code and the notification is, therefore, valid.
In our view the approach made by the Full Bench of the High Court in M/s Central Distillery Chemicals Works Ltd. vs State of U.P., (supra) is correct and has to be approved.
As pointed out by this Court in Municipal Board, Hapur vs Raghuvendra Kripal and Others, ; taxes raised by a local authority are not imposed by it as a legislature but as a delegate of the legislature.
The tax is valid one if it is one of the taxes the local authority can raise and the delegate imposes it in accordance with the conditions laid down by the legislature.
The taxes that can be raised in exercise of delegated power are predetermined and procedure is prescribed by the Municipal Act.
Thus Section 128 of the U.P. Municipalities Act confers on the municipalities in the State the power to levy taxes enumer ated thereunder.
The power conferred is not absolute but is subject to any general rules or special orders of the State Government in this behalf.
Section 128(1) does not confer any independent rule making power.
The general rules re ferred to in that Section can only be the rules in the matter of such levy specified in Section 153 of the Act and framed in exercise of the power under Section 296 of the Act.
The State Government is empowered under Section 296 to make rules consistent with the Act in respect of matters described in Section 153.
Rules framed under Section 153 constitute the exclusive machinery for assessment and col lection of taxes.
The relevant part of Section 153 reads as under: "153.
Rules as to assessment, collection and other matters.
The following matters shall be regulated and governed by rules except in so far as provision therefor is made by this Act, namely: (a) the assessment, collection or composition of taxes, and, in the case of octroi or toll, the determination of octroi or toll limit; 382 (f) any other matter relating to taxes in respect of which this Act makes no provision or insufficient provision and provision, is, in the opinion of the State Government neces sary.
" In prescribing the procedure for the impositon of taxes by the board, Section 13 1 of the Act requires the board while framing the proposal to prepare a draft of the rules which it desires the State Government to make in respect of the matters referred to in Section 153 and publish the same.
When the proposals have been sanctioned the State Government makes the necessary rules in respect of the tax under Sec tion 296.
The rules referred to in Section 128(1) are rules thus framed by the State Government under Section 296 in respect of matters referred to in Section 153.
Section 300(2) expressly provides that any rule or regulation made by the State Government may be general for all municipali ties or may be special for anyone municipality as it di rects.
The Municipal Manual published by the Government contains the general rules made by the Government under the Act and general orders issued in Volume 1.
The second volume contains the Municipal Account Code.
The General Rules and orders are contained in Chapter I to XII of Part I.
The Explanation in Chapter I reads as under: "The Rules in this Manual, which are printed in pica type, together with their explana tions, illustrations and exceptions, have the force of law, having been made by the Govern ment in exercise of the powers conferred by section 296 of the Act, and, except where otherwise stated, are applicable to all munic ipalities.
The notifications in which they were published are referred to on the margins of the pages.
" Part II contains the model rules, bye laws and regulations.
Section A deals with Rules with reference to Section 153 of the Act thus: "The following model rules have been framed by the Government for the assessment and collec tion of taxes other than octroi under section 153 and 296 of the Act.
It is anticipated that they will be found generally applicable to the circum stances of the municipalities of these prov inces, and it is desirable that the model forms 383 should be adhered to unless there are special reasons justifying any divergence from them.
In forwarding proposals for the imposition of additional taxation, boards are reminded that the necessary rules for the assessment and collection of the taxes to be imposed should be forwarded at the same time as the tax proposals, and it will facilitate the disposal of such cases if any deviations from the model forms printed below are specif ically referred to in the proposals submitted.
II contains the Municipal Account Code.
Chapter X deals with octroi and provides in R. 13 1 that subject to the exceptions contained in the proviso octroi shall ordinarily be levied on commodities included in the list.
In Mool Chand vs Municipal Board, Banda, AIR 1926 All 5 17 it was held that the rules contained in the Code have as much force of law as the Act itself.
The octroi rules contained in Chapter X of the Municipal Account Code are general rules framed by the State Government in respect of matters referred to in Section 153 in exercise of power under Section 296 and refer to the levy and govern the assessment, collection etc.
The rules are general for all municipalities.
The 1963 rules are framed for the appellant board expressly superseding the general rules in so far as they apply to the appellant board.
By framing the 1963 rules the government evinced the intention to cover the field which was covered by 1925 rules in so far as the Bareilly Municipality was concerned.
The subject matter dealt within 1963 rules is the same as that dealt with in 1925 rules.
The intention to supersede the earlier rules is clearly expressed.
The rule has the force of law.
Rule 13 1 of 1925 rules has no longer any applica tion in the matter of levying octroi by the appellant board.
That rule stands repealed in so far as the appellant Board is concerned.
The rule cannot, therefore, be read as cur tailing the power under Section 128(1)(viii) of the Act to impose octroi.
Rules do not enlarge or restrict the authori ty to impose tax.
Authority is conferred by the section.
Rules are only regulating the exercise of that power.
The imposition of the tax and the regulation of its assessment and collections are totally different matters and they are clearly distinguished.
In Zaverbhai Amaidas vs The State of Bombay, [1955] 1 SCR 799 this Court reiterated the rule of construction that if a later statute deals with the same subject matter and varies the procedure the earlier statute is repealed by the later statute.
In The Municipality or Anand vs State of Bombay, [1962] 2 Supp.
SCR 366 construing section ,59 of the Bombay District Municipal Act, 1901 which is in pari materia with 384 section 128 of the U.P. Municipalites Act, this Court said the word 'impose ' in section 59 meant the actual levy of the tax after authority to levy it had been acquired by rules duly made and sanctioned and this imposition was subject to the general or special orders of the government.
The opending words of section 128 are capable of similar construction and the imposition has to be understood as the actual levy subject to the general rules and special orders contemplated under the other provisions of the Act.
The rule making power under Section 296 read with Section 300(2) of the Act enables the State Government to except anyone municipality from the operation of the general rule by express provision in that behalf.
When the identical author ity in exercise of its rule making power duly frames the rules in respect of the same matter expressly providing that the new rules shall apply to a particular municipality in supersession of the existing rules, it must be deemed that existing rules are repealed to that extent.
The 1963 rules had been framed under Section 296 of the Act in supersession of the existing rules after publication by the State Govern ment, in the Gazette as provided under Section 300 and therefor Rule 13 1 in the 1925 rules ceased to have any operation in respect of the matters dealt with therein so far as the Bareilly municipality is concerned.
In this view of the matter, we hold that the appel lant Board had authority to levy octroi on mineral oils and challenge against the impugned notification is not sustain able.
The High Court was clearly in error in quashing the same and restraining the Board from assessing and collecting the tax.
We accordingly allow the appeal and set aside the judg ment of the High Court.
In the circumstances of these cases, we, however, make no order as to costs.

summary:
The appellant is a Municipal Board governed by the provisions of the U.P. Municipalities Act, 1916.
Section 128 of the Act provides for imposition of taxes by the Board.
In exercise of the powers under Sections 131 to 135 and 296 of the Act, the Government of the United Provinces framed octroi rules.
The said rules were included in the Municipal Account Code (Chapter X rules 131 to 231).
The proviso to Rule 131 provided that octroi shall not be levied on certain articles which included mineral oil.
The rule was amended vide notification dated the 2nd November 1953 and for the words "the mineral oil" in the proviso, the words "mineral oils classified as motor spirit, kerosene or diesel oil" were substituted.
Separate rules for the assessment and collection of octroi in the Bareily Municipality were framed by the Govt.
of U.P.
The draft rules were notified vide notification dated the 16th February 1963.
Final rules were notified vide notification dated the 7th May 1963 and published in U.P. Gazette dated the 11th May 1963.
By a notification dated the 24th July 1963, published in U.P. Gazette dated the 3rd August, 1963, the appellant Board imposed octroi duty on goods and animals brought within the octroi limits of Barei ly Municipality for consumption, use and sale at the rates shown in the Schedule subject to certain exceptions men tioned therein.
The said notification came into operation from November 16, 1963 and thereafter the levy of octroi in Bareily Municipality was governed by 1963 rules.
The amend ments were made in the octroi schedule both in the rates as well as in the exemption and as a result whereof motor spirit, kerosene and diesel oil were removed from the exemp tion clause and were subjected to the octroi duty @ 1 paisa per liter vide notification dated August 27, 1969.
The respondents challenged the validity of the notification dated 377 the 27th August 1969 by means of a writ petition before the High Court on the ground that 1925 rules took away the power from all Municipal Boards to impose octroi duty on mineral oils and until such power is restored under a contrary notification issued under section 128 of the Act, the Board did not have any justification to assess or collect octroi duty on mineral ohs.
The appellant Board contended that Rule 131 was superseded by the 1963 rules which now governed the imposition of octroi by the appellant Board.
The single Judge of the High Court who heard the petition came to the conclusion that Rule 131 restricted the power of the Board to impose the octroi and the subject matter of the rule was not covered by the 1963 rules.
The appellant 's appeals preferred before the Division Bench were dismissed which took the view that the bar under Rule 131 regarding the imposition of octroi duty on mineral oils continued notwith standing the 1963 Rules.
Hence these appeals by the Munici pal Board.
Allowing the appeals, this Court, HELD: The rule making power under section 296 read with Section 300(2) of the Act enables the State Government to except any one municipality from the operation of the gener al rule by express provision in that behalf.
When the iden tical authority in exercise of its rule making power duly frames the rules in respect of the same matter expressly providing that the new rules shah apply to a particular municipality in supersession of the existing rules, it must be deemed that existing rules are repealed to that extent.
[384C D] The 1963 rules had been framed under Section 296 of the Act in supersession of the existing rules after the publica tion by the State Government, in the Gazette as provided under Section 300 and therefore rule 131 in the 1925 rules ceased to have any operation in respect of the matters dealt with therein so far as the Bareilly municipality is con cerned.
[384D] M/s Central Distillery Chemicals Works Ltd. & Anr.
vs State of U.P. & Ors., [1980] All L.J. 62, approved.
Municipality of Anand vs State of Bombay, ; ; Municipal Board, Hapur vs Raghuvendra Kripal & Ors., ; ; Mool Chand vs Municipal Board, Banda, AIR 1926 All. 517; Zaverbhai Amaidas vs The State of Bombay, [1955] 1 SCR 799 and The Municipality or Anand vs State of Bombay, [1962] 2 Supp.
SCR 366, referred to


judgement:
ivil Appeal No. 870 of 1975.
From the Judgment and Order dated 24.1.1975 of the Bombay High Court in Special Civil Application No. 963 of 1973.
V.V. Vaze, V.N. Patil and A.S. Bhasme for the Appellant.
V.M. Tarkunde, V.N. Ganpule, Ms. Punam Kumari, Suman B. Rastogi, Ms. J. Wad and A.M. Khanwilkar for the Respondents.
The Judgment of the Court was delivered by SHARMA, J.
This appeal by special leave is directed against the decision of the Bombay High Court on a writ petition filed by the respondent No. 1, hereinafter referred to as the respondent.
The application of the respondent for permitting construction on the land in question described as plots No. 29 and 30 in the town of Nasik was rejected by the Nasik Municipal Council, which led to the filing of the writ case.
In 1955 the respondent purchased the land in question from one Patwardhan and in 1957 obtained permission to construct a building thereon.
However, no construction was made and in March, 1962, a notification under section 4 of the Land Acquisition Act was issued for the purpose of estab lishing a Tonga Stand.
The respondent made a fresh applica tion for permission to make construction.
He was told not to do so on the ground that the land was reserved for road widening under a Town Planning Scheme which was being imple mented.
He however started construction work and when pre vented from so doing, filed a writ application in the High Court which was later withdrawn.
Subsequently he filed a suit in the civil court inter alia claiming damages.
Soon thereafter a resolution was passed by the Municipal Council on February 13, 1967 whereby a decision was taken to accord permission to the respondent as asked for.
The suit was thereafter withdrawn.
The aforesaid development came to the notice of the State Government, and the Municipal Council was asked to explain the circumstances, and a high.power Committee was appointed to examine the entire matter.
The aforesaid reso lution was thereafter rescinded by the Municipal Council, and the respondent filed a fresh application for permission to construct, which was kept in abeyance by the Council on the ground that the matter was under consideration by the Committee.
536 Another writ petition being Special Civil Application No. 993 of 1969 was thereupon filed by the respondent in the High Court in 1969.
While this case was pending, the Commit tee submitted its report and a fresh resolution was passed on 29.6.1970, a copy whereof is Ext. 'O ', inter alia, decid ing to re plan the Scheme with respect to the area in ques tion, in accordance with the recommendation of the Commit tee.
Consequently the matter was re opened and objections from the affected persons were invited and the respondent filed his objection petition.
However these facts were not placed before the High Court in Special Civil Application No. 993 of 1969 and, without taking them in consideration, the case was disposed of by the judgment contained in Ext. 'A ' dated 18.4.1972.
Without going into the merits of the matter, the High Court directed that; "The petitioner 's application to Respondent No. 1 dated July 18, 1968, for construction permission shall be disposed of by Respondent No. 1 in accordance with law".
The Municipal Council by its order dated the 21st of November, 1972 rejected the respond ent 's application on the basis of the resolution dated the 29th of June, 1970, Ext. '0 ', stating that the plots in question were required for road widening, and the Town Planning Scheme was being modified accordingly.
This order was challenged before the High Court by a writ application out of which the present appeal arises.
On behalf of the respondent it was urged before the High Court in support of the writ petition that the disputed question must be deemed to have been finally settled in his favour in view of the earlier judgment, Ext. 'A ' in S.C.A. No. 993 of 1969 which was binding on the parties by reason of rule of res judica ta.
It was contended on behalf of the State of Maharashtra and the Municipal Council that the plea of res judicata was not available mainly for the reason that no final decision was arrived at in the earlier case.
It was pointed out that tlie 1970 Resolution, Ext. 'O ', was not even brought to the notice of the court by any party, and the High Court without considering the merits of the respondent 's prayer merely directed the Municipal Council to reconsider his application dated the 18th of July, 1968 and dispose it of in accordance with law.
The High Court was not impressed by this reply and allowed the writ application on the basis of the principle of constructive res judicata.
It has been observed that it was for the State or the Municipal Council to have relied upon the 1970 Resolution and since this was not done, their answer based upon the said resolution cannot now be enter tained.
By the impugned judgment it has also been said that having regard to the circumstances in which the earlier judgment Ext. 'A ' was delivered, the same must be interpret ed as issuing a peremptory direction to accord permission for construction without further consideration of the prayer on merits.
537 4.
Mr. V.M. Tarkunde, the learned counsel for the re spondent, while supporting the above view of the High Court has contended that the resolution of 13.2.1967 was passed by way of a compromise between the parties, and acting upon the same the respondent withdrew his suit which he had earlier filed in the civil court, and, therefore, the Municipal Council cannot be permitted to wriggle out of the situation.
He also relied upon an affidavit which has been filed re cently and suggested that if the present circumstances are taken into consideration the conclusion would be that the disputed land is not required either for widening the road or for any other public purpose, and the authorities have been acting mala fide at the behest of the respondents No. 4 and 5.
So far the 1970 Resolution is concerned, it is urged that the same should be completely ignored and the Municipal Council should not be allowed to bypass the judgment of the High Court in the earlier case.
Mr. Patil, the learned counsel for the appellant, has reiterated the stand taken in the High Court that the judgment Ext. 'A ' did not decide any issue, and cannot be interpreted as a direction commanding the Municipal Council to allow the proposed construction.
He said that at the present stage it is not possible to finally decide the question as to whether the objections to the proposed scheme raised by the respondent have any substance or not.
They were invited by 1970 Resolution to place their case and to present their point of view before the Municipal Council.
It is stated on behalf of the Municipal Council that the plots in question are urgently needed for providing parking space for vehicles.
Having regard to the sequence of events in this case, we are unable to accept the contention that the Resolution dated 13.2.1967 was the result of a binding compromise between the parties.
The fact that the respondent has with drawn his suit for damages could not by itself indicate that the Municipality was bound by the said Resolution.
The Municipality was equally answerable to State Government which restrained the respondent from proceeding with the construction and appointed a high power Committee to go into the entire matter.
The Committee gave a report stating that the land in question would be needed for the proper circula tion of traffic.
Equally we find that there is no scope for application of the principles of res judicata.
We agree with the appellants that by the judgment Ext. 'A ' the High Court did not finally decide the controversy and it remained open for the Municipal Council to decide, by reconsidering and disposing of the application of the respondent in accordance with law.
Besides, the question as to whether a particular Scheme 538 framed in exercise of statutory provisions is in the public interest or not has to be determined according to the need of the time and a final decision for all times to come cannot be taken.
A particular scheme may serve the public purpose at a given point of time but due to change of cir cumstances it may become essential to modify or substitute it by another scheme.
The requirements of the community do not remain static; they indeed, go on varying with the evolving process of social life.
Accordingly, there must be creative response from the public authority, and the public scheme must be varied to meet the changing needs of the public.
At the best for the respondent, it can be assumed that in 1967 when the resolution in his favour was passed, the acquisition of the land was not so urgently essential so as to call for his dispossession.
But for that reason it cannot be held that the plots became immune from being utilised for any other public purpose for ever.
The State or a body like the Municipal Council entrusted with a public duty to look after the requirements of the community has to assess the situation from time to time and take necessary decision periodically.
We, therefore, hold that the Resolu tion dated 13.2.1967 was not binding on the Municipal Coun cil so as to disable it to take a different decision later.
So far the plea of mala fides is concerned, the High Court has not recorded any finding; and we do not find any material to support the respondent 's allegation.
For the reasons mentioned above, the impugned judg ment of the High Court is set aside and the writ petition of the respondent filed in the High Court is dismissed.
The respondent may even now avail the opportunity given by the 1970 Resolution, and press his objections promptly and in that case the Municipal Council may dispose of the same in accordance with law.
The appeal is accordingly allowed, but the parties shall bear their own costs.
P.S.S. Appeal allowed.

dataset_name: IN-Abs

summary:
The respondent was permitted by the Municipal Council to construct a building on the disputed land.
Later, the site was reserved under section 4 of the Land Acquisition Act for a town planning scheme.
When the respondent was prevented from proceeding with the construction he filed a suit for dam ages.
The Municipal Council, however, by a resolution passed on February 13, 1967 decided to accord permission.
The suit was thereafter withdrawn.
The State Government appointed a high power committee to examine the entire matter.
The aforesaid resolution was rescinded by the Municipal Council.
The respondent made a fresh application in July, 1968 which was kept in abeyance.
He thereupon filed a writ peti tion before the High Court in 1969.
During the pendency of the case, the Municipal Council passed a resolution on June 29, 1970 deciding to replan the scheme with respect to the area in question in accordance with the recommendations of the high power committee.
The High Court by its judgment dated April 18, 1972 directed the Municipal Council to dispose of the application in accordance with law.
The latter, however, by its order dated November 21, 1972 rejected it on the basis of the 1970 resolution.
In the writ application challenging the said order it was contended for the respondent that the disputed question must be deemed to have been finally settled in his favour in view of the earlier judgment which was binding on the par ties by reason of rule of res judicata.
For the State it was contended that no final decision was arrived at in the earlier case.
The High Court allowed the writ application on the basis of constructive res judicata.
In the appeal by special leave it was contended for the appellants 534 that the previous judgment could not be interpreted as a direction commanding the Municipal Council to allow the proposed construction, and that the plots were urgently needed for providing parking space for vehicles.
For the respondent it was contended that the resolution of February 13, 1967 was passed by way of a compromise between the parties and acting thereupon he withdrew his suit.
it was, therefore, binding on the Municipal Council, that the 1970 resolution should be completely ignored and the Municipal Council should not be allowed to bypass the judgment of the High Court.
Allowing the appeal, this Court.
HELD: 1.
The resolution dated February 13, 1967 was not binding on the Municipal Council so as to disable it to take a different decision later.
It was not the result of a compromise between the parties.
[538D; 537E F] 2.1 At the best for the respondent, it could be assumed that when the said resolution in his favour was passed the acquisition of the land was not so urgently essential so as to call for his dispossession.
But for that reason it could not be said that the plots had become immune from being utilised for any other public purpose for ever.
[538B C] 2.2 The question as to whether a particular scheme framed in exercise of statutory provisions is in the public interest or not has to be determined according to the need of the time and a final decision for all times to come cannot be taken.
Such a scheme may serve the public purpose at a given point of time but due to change of circumstances it may become essential to modify or substitute it by anoth er scheme.
The requirements of the community do not remain static, they indeed, go on varying with the evolving process of social life.
Accordingly, the State or a body.like the Municipal Council entrusted with a public duty to look after the requirements of the community has to assess the situa tion from time to time and vary the scheme periodically to meet the changing needs of the public.
In the instant case, the high power committee appointed by the State had given a report stating that the land in question would he needed for the proper circulation of traffic.
[537H; 538; 537F G] 3.
There was no scope for application of the principle of res judicata.
By the judgment dated April 18, 1972, the High Court did not finally decide the controversy and it remained open for the Municipal Council to decide, by recon sidering and disposing of the application of the respondent in accordance with law.
[537G H] 535


judgement:
Appeal No 498 of 1975.
438 From the Judgment and Order dated 31.7.1974 of the Madhya Pradesh High Court in Misc.
Petition No. 3 16 of 1973.
Prithvi Raj, Satish K. Agnihotri and Ashok Singh for the Appellants.
Shankar Ghosh, Vivek Gambhir and Parveen Kumar for the Respondent.
The Judgment of the Court was delivered by PUNCHHI, J.
This is an appeal by special leave against the judgment and order of the High Court of Madhya Pradesh at Jabalpur whereby the petition under Articles 226 and 227 of the Constitution of India preferred by Orient Paper Mills Ltd., the sole respondent herein, was allowed and sequally the order dated 15.3.1973 of the State Government declining to grant the respondent exemption from payment of electrici ty duty for the period from 16.2.1965 to 15.2.1970 and pursuant demand notices dated 20.3.1973 and 3.4.1973 were quashed.
The aggrieved State of Madhya Pradesh and its concerned Officers are the appellants challenging the same The respondent had need to go to the High Court to have an assurance dated 1.8.1961 regarding exemption from payment of electricity duty given by the State of Madhya Pradesh in its declared industrial policy observed, which may well be reproduced here at the outset: "Where power has to be generated by industri alists themselves, exemption from electricity duty shah be granted for a period of five years from the date of plant goes into produc tion.
The concession shall be applicable only to new generating sets installed during the Third Plan period.
" Factually it was not disputed before the High Court, that the case of the respondent squarely fall within the scope of the assurance reproduced above since the industrial plant of the respondent had gone into production w.e.f. 16.2.1965, the generating set put up was new, and had been installed during the Third Plan period.
To formalise the matter, the respondent had corresponded with the Government for the grant of the requisite exemption.
Since the same was rejected and demands for payment of electricity duty creat ed, the High Court was requested to issue suitable writs, directions and orders cancelling the 439 aforesaid orders and demand notices and granting exemption from payment of electricity duty in respect of electricity self generated by the respondent during the said period of five years, and also commanding the State to carry out the assurance and promises made in the said industrial policy dated 1.8.1961 extracted above and then requiring the State to issue a Notification under Section 3 B of the Madhya Pradesh Electricity Duty Act, 1949 granting exemption or exception to the respondent from payment of electricity duty and other allied consequential reliefs.
Before the High Court voluminous documentary evidence was given by the parties in support of their respective pleadings.
The High Court, on consideration of the entire material placed before it, spelled out a promissory estoppel in favour of the respondent and concluded as follows: "To conclude, we are of opinion that the petitioner is entitled to invoke the doctrine of promissory estoppel in order to claim exemption from payment of electricity duty for a period of five years from 16.2.1965 to 15.2.1970 in terms of the assurance of the State Government, dated 1.8.1961.
Of course, as indicated earlier it is not for us to issue any writ directing the State Government to grant the petitioner exemption in terms of section 3 A (vii) or Section 3 B of the M.P. Electric ity Duty (Amendment) Act, 1949.
But in view of the unambiguous and unequivocal assurance given by the State Government on 1.8.1961 we can certainly quash the order of the State Government, dated 15.3.1973 as also the demand notices, dated 20.3.1973 (Petitioner 's Annex ure 48) and dated 3.4.1973 (Petitioner 's Annexure 50) and leave the matter at that.
It would be for the Government to work out its own course of action on that basis. ' ' Mr. Prithvi Raj, learned counsel for the appellant urged that on the facts and circumstances of the case there was no occasion to invoke the doctrine of promissory estoppel.
It was asserted that though the industrial policy was published by the State Government on 1.8.1961 containing the assurance extracted above, the respondent had not in any manner acted thereon to its own prejudice, but had rather on its own been taking steps to set up a generating plant much before the industrial policy was announced and had factually set up the generating plant as per its earlier resolve.
The facts highlighted were that the 440 respondent Paper Mill, had been set up at Amlai in Vindhya Pradesh, when a Part C State under the administration of the Central Government.
It had in its application dated 3.5.
1955 to the Government indicated that about 5000 K.W. elec tricity would be required by it to run its paper plant and.
it would by itself make arrangements for obtaining the necessary generating equipment.
It appears that the State Government had at that time its oven project in view for installing a power plant.
On that basis some correspondence ensued between the respondent and the State Government with regard to its annual requirement of electricity.
That exer cise was abandoned for some reasons which are not relevant here.
Thereafter the respondent applied for import licence for the import of a production plant as also a power plant to run it.
The respondent was granted an import licence on the strength of which it started negotiation with an Ameri can supplier.
While negotiations were in process the Ameri can supplier increased the price.
It became impossible for the respondent to import the production plant and the power plant within the funds allotted to it by the World Bank and in these circumstances, the American suppliers advised the appellant to drop procurement of the power plant.
At the same time the American supplier warned the respondent that if the power plant was not purchased along with the produc tion plant, it would make the project unsound and it would not be able to fulfil its guarantees as desired by the respondent.
The respondent in these circumstances became of two minds, whether to have the power plant or not.
When it was in that state of mind, the industrial policy was an nounced by the Government on 1.8.1961.
Thereafter, on 21.8.1961, the respondent applied to the Government of India for sanction of permission to import 3.5 million dollar worth goods more than the sanctioned amount.
Finally, the respondent with the consent of the Government of India and with the aid of the World Bank was able to import the pro duction plant and the power plant and after its installation was able to go on production w.e.f. 16.2.1965.
The course of the events set out earlier were not dis puted as such by the appellants before the High Court but it was maintained as now before us, that the respondent would have on its own gone on to install the power plant even without the announcement of the industrial policy dated 1.8.1961.
Additionally, it was maintained, in the like manner, that the respondent had not acted to its prejudice on the basis of the aforesaid assurance dated 1.8.1961 and so that doctrine of promissory estoppel was not invokable.
The defence of the State thus raised was rejected by the High Court in the following words: 441 "We have already dealt with that aspect earli er and we have already held that the petition er 's action in setting up a power plant was postponed on account of certain circumstances and ultimately on the advise of the manufac turers who refused to continue the guarantee, the petitioner decided to set up its own power plant.
In the meantime, the assurance of the State Government, dated 1.8.1961 had already been given and the petitioner 's action in making a final decision to set up its own power plant can be directly connected with the State Government 's assurance dated 1.8. 1961.
No sooner the petitioner took the final deci sion in that behalf, it applied to the State Government for grant of an exemption, although that application was premature, because the petitioner 's paper mill had not started func tioning.
As such, the petitioner would cer tainly be entitled to claim exemption in terms of the assurance of the State Government dated 1.8.1961 with effect from the date the paper mill started functioning, namely, 16.2.1965 and the exemption would last for a period of five years upto 15.2. 1970.
" Whether the respondent was of one mind right from the beginning to set up a power plant, with or without the assurance of the State Government dated 1.8.1961, as assert ed by the State, is neither borne out nor is the view of the High Court arrived at from the record.
Rather, on the con trary, the view taken is that the respondent 's indecision in that regard ended and it became decisive on the announcement of the assurance dated 1.8.1961.
Such view of the High Court was a possible view to be taken on the material placed before it and the inference drawn therefrom could be that the respondent had acted on the basis of the assurance.
The effort here to re do the exercise in this regard must inevi tably fail, for this Court ordinarily does not interfere with factual findings arrived at by the High Court and this case has not been shown to us to be an exception.
In this situation, the view taken by the High Court was unexception al warranting it to be left uninterferred with.
Some attempt was made by learned counsel for the appel lant to contend that the doctrine of promissory estoppel could not be pressed into service to command the State Government under Section 3 A (vii) (before its amendment) and Section 3 B of the Madhya Pradesh Electricity Duty Act, 1949 (as amended) to issue a Notification exempting the respondent from payment of electricity duty.
The 442 answer to this argument is available in the conclusion arrived at by the High Court extracted above.
Without com manding the State Government to issue such a Notification, it has granted relief to the respondent to which there was no bar.
Accordingly, no provision of Madhya Pradesh Elec tricity Duty Act, 1949 or any other law can be said to have been transgressed.
We thus reject this argument too.
Thus for the foregoing reasons this appeal fails and is hereby dismissed.
No costs.

summary:
In its industrial policy, the State Government declared on 1.8.1961 that where power has to be generated by indus trialists themselves, exemption from electricity duty would be granted for a period of five years from the date of plant goes into production, and that the concession would be applicable only to new generating sets installed during the Third Plan period.
The Respondent indicated to the Government on 3.5.1955 that about 5000 K.W. of electricity would be required by it to run its paper plant and that it would by itself make arrangements for obtaining the necessary generating equip ment.
It also applied for import licence for the import of a production plant as also a power plant to run it.
The import licence was granted and the Respondent started negotiation with the foreign supplier.
Since the price had gone up it was rather impossible for the Respondent to import both the production plant and the power plant, and if the power plant was not purchased along with the production plant, it would make the project unsound.
Hence the Respondent was in two minds whether to have the power plant or not.
Meanwhile, the above said industrial policy was announced and the Respond ent on installation of the power plant was able to start its production w.e.f. 16.2.1965.
Thereafter to formalise the matter, the Respondent corre sponded 437 with the appellant for the grant of the requisite exemption, which was rejected, and the Respondent approached the High Court by way of a petition under Articles 226 and 227 of the Constitution of India.
The High Court held that the Peti tioner was entitled to invoke the doctrine of promissory estoppel in order to claim exemption from payment of elec tricity duty for a period of five years from 16.2.1965 in terms of the assurance of the State Government dated 1.8.1961.
Against this order of the High Court the State has come in appeal by Special Leave.
On behalf of the appellant State it was urged that there was no occasion to invoke the doctrine of promissory estop pel, since the Respondent had not in any manner acted on the assurance of the Government to its own prejudice but on its own it was taking steps to set up a generating plant much before the industrial policy was announced.
Dismissing the appeal, this Court, HELD: 1.
Whether the respondent was of one mind right from the beginning to set up a power plant, with or without the assurance of the State Government dated 1.8.1961, as asserted by the State, is neither borne out nor is the view of the High Court arrived at from the record.
On the con trary, the view taken is that the respondent 's indecision in that regard ended and it became decisive on the announcement of the assurance dated 1.8.1961.
Such view of the High Court was a possible view to be taken on the material placed before it and the inference drawn therefrom could be that the respondent had acted on the basis of the assurance.
[441E F] 2.
This Court ordinarily does not interfere with factual findings arrived at by the High Court and this case has not been shown to be an exception.
The view taken by the High Court was unexceptional warranting it to be left uninter ferred with.
[441F] 3.
Without commanding the State Government to issue such a Notification, the High Court has granted relief to the respondent to which there was no bar.
Accordingly no provi sion of Madhya Pradesh Electricity Duty Act, 1949 or any other law can be said to have been transgressed.
[442A]


judgement:
ivil Appeal No. 1924 of 1990.
From the Judgment and Order dated 6.8.1986 of the Kerala High Court in E.S.A. No. 15 of 1979.
543 K.K. Venugopa|, M.K. Sasidharan and P.K. Pillai for the Appellants.
T.S. Krishnamoorthy Iyer, P.S. Poti, section Balakrishnan, Deepak Nargoalkar, E.M.S. Anam, R.M. Keshwani, M.K.D. Nam boodiri and Irfan Ahmed for the Respondents.
The Judgment of the Court was delivered by section RATNAVEL PANDIAN, J.
Special leave granted.
The unsuccessful appellants herein have preferred this appeal against the judgment of the High Court of Kerala dated 6.8.1985 passed in E.S.A. (Execution Second Appeal) No. 15 of 1979 whereby the High Court dismissed the said appeal filed by the appellants.
The relevant facts giving rise to this appeal are necessary to be recapitulated and they are as follows: Othayath Gopalan Nambiar (since dead) and Othayath Lekshmy Amma (who is the first appellant herein) filed an Execution Application No. 556 of 1970 in Original Suit No. 817 of 1943 in the court of the Munsiff of Badagara under Section 13(B) of the Land Reforms Act, as amended by the Amending Act 35 of 1969 (hereinafter referred to as the 'Act ') for restoration of possession of the properties mentioned in the schedule of the application, which were sold in court auction for arrears of rent in pursuance of the decree made in O.S. No. 817 of 1943.1t seems that during the pendency of the proceedings before the Munsiff, Othayath Gopalan Nambiar died and thereafter the first appellant 's son claiming to be the karnavan of the tavazhi got himself impleaded as the third petitioner in the said Execution Application, who is figuring as the second appellant herein.
In order to decide the questions that arise for consid eration, certain salient and material facts may be recapitu lated.
The suit, O.S. 'No. 817 of 1943 was filed for recov ery of arrears of rent of Rs.815 for the Malayalam years 1116 to 1118, corresponding to English era 1941 to 1943.
There were 11 defendants of whom Othayath Gopalan Nambiar and the first appellant were the defendants 2 and 3.
A preliminary decree was passed on 26.5.1944 followed by the final decree on 29.11.
The decree holder assigned the decree to another member of his family, who in turn assigned it to one Kunhikannan.
The rights of Kunhikannan devolved on Respondents 2 to 4 in the Execution Application who are Respondents 4 to 6 in this appeal and who brought the 544 property to sale.
The sale took place on 26.11.
One Thekkayil Kanaran who was the first Respondent in the Execu tion Application, i.e. the third Respondent herein purchased the property in the Court auction held on 26.11.1962, which sale was confirmed on 14.8.
1964 and consequently obtained delivery of the disputed scheduled property extending to 8.70 acres of double crop wet land through court on 9.1.
1965 from the possession of the appellants.
exhibit C 3 is the delivery account and report submitted by the Amin.
The remaining extent of the property was in the possession of the sub tenants in respect of which there was resistence with which we are not concerned here.
After the delivery has been effected, Gopalan Nambiar and the first appellant herein trespassed into the suit property.
Therefore, the Court auction purchaser filed O.S. 6 of 1966 in the court of the Subordinate Judge of Badagara for recovery of possession.
The suit was decreed as per the judgment exhibit B 16 dated 27.7.1966.
exhibit B 15 is the decree.
Ex B 49 dated 25.8.1966 and exhibit B 50 dated 22.8.1966 are the respective certified copies of the delivery account submit ted by the Amin and the delivery warrant issued to Amin in O.S. No. 6 of 1966.
The auction purchaser, i.e. third re spondent in this appeal assigned portions of the property under sale deeds Exts.
A2 and A3 dated 5.12.1966 to the 5th and 6th respondents in the Execution Application, who are the first and second respondent in this appeal.
1t is stated that while the first respondent is stranger, the second respondent is none other than the wife of the fourth re spondent.
As we have pointed out earlier, this fourth re spondent is among the three respondents on whom the rights of Kunhikannan devolved.
While it is so, Act 9 of 1967 came into force.
So Gopa lan Nambiar and the first appellant filed Execution Applica tion No. 1711 of 1967 for restoration of possession under the said amended Act after making the necessary deposit.
While this E.A. was pending, Act 35 of 1969 tame into force (Kerala Land Reforms Amendment Act) repealing Act 9 of 1967.
So the appellants filed E.A. 556/70 under Section 13 B of the Act for restoration of possession with a prayer that earlier deposit made under Act 9 of 1967 be treated as a deposit under Act 35 of 1969 and also under took to pay the balance, if any, as would be found by the Court.
The third respondent (court auction purchaser) and his assignees Respondents 1 and 2 contended that the appellants have no interest in the properties and the delivery of the property had already been taken.
The appellants attacked the validity of exhibit A2 and A3 contending that the assignments in favour of Respondents 1 and 2 were made without consideration and bona fides and that auction 545 purchaser Thekkayil Kanaran, Respondent No. 3 was only a benamidar of the decree holder in the matter of the Court auction purchase.
This application (E.A. 556/70) was stoutly opposed by the respondents inter alia contending that the properties did not belong to the Tavazhi of the appellants and the appellants have no right to the suit properties and are not entitled to apply for restoration of possession.
According to the respondents, there is no valid deposit and after the delivery of the property has been effected, Gopa lan Nambiar trespassed into the properties and he was eject ed by recourse to a suit and thereafter the properties were assigned to Respondents 1 and 2 for proper consideration and bona fides and they are in possession of the properties on the strength of the said sale deeds.
The Trial Court held that the appellants were the tenants of the properties when they were dispossessed and the deposit made by the appel lants was sufficient and the Respondents 1 and 2 are not bona fide purchasers for consideration.
On the said finding it allowed E .A. 556/70 and set aside the sale.
Aggrieved by the order of the Trial Court, the Respond ents 1 and 2 filed A.S. 49/74 before the Sub Court, Badaga ra, which for deciding the appeal posed the following four points for its consideration, namely: 1.
Are the Petitioners entitled to maintain the application? 2.
Is the deposit sufficient? 3.
Are the appellants bona fide purchaser for consideration? 4.
Whether the court sale is liable to be set aside and the restoration of possession claimed allowable? If so, are the petitioners liable to pay anything by way of value of improvements? The learned Judge answered the first point "that the petitioners are competent to maintain the applica tion," and the second point holding " . . that the deposit when it was made is sufficient.
However the interest accrued till date of the present appli cation will be directed to be deposited in case the peti tioners are found entitled to restoration of possession.
" 546 Coming to the third point it has been held thus "The first respondent (third respondent in S.L.P.) had absolutely no necessity to execute any sham documents.
The fact that respondents 5 and 6 (Respondents 1 and 2 in the SLP) came into possession and exercised their rights under Exhibits A2 and A3 by payment of rent and revenue and pay ment of consideration spoken to by both the vendor and vendee are sufficient to hold that they are bona fide pur chasers for consideration.
" Under the fourth point, the relief claimed by the appellants was held to be rejected.
In the result, the order of the Trial Court was set aside and the appeal was allowed dis missing E.A. 556/70.
The learned Subordinate Judge has also expressed his opinion in his judgment that in summary proceedings under Section 13B of the Act, the plea of the appellants that the third respondent was a benamidar of the fourth respondent cannot be allowed to be raised in the light of Section 66 of the Civil Procedure Code.
On being dissatisfied with the judgment of the Subordi nate Judge, the appellants preferred E.S.A. No. 15/79.
The respondents filed their cross objections.
Though the High Court admitted the appeal on being satisfied that the appeal involves as many as 11 substantial questions of law, it disposed the appeal on a short ground that the documents and the evidence adduced by the respondents 1 and 2 (Govindan Nair and Ambrolil Ammalu) clearly show that the respondents 1 and 2 are bona fide purchasers of the properties in ques tion for consideration and the plea of benami put forth by the appellants has to be negatived.
The contentions in the cross objections were that for filing an application under Section 13(B)(1) of the Act, a deposit of the purchase money together with the interest at the rate of 6 per cent per annum in the court is a condition precedent and that the finding of the lower Appellate Court that the earlier depos it made under Act 9 of 1967 was sufficient and the interest accrued till the date of the Execution Application under Act 35 of 1969 would be directed to be deposited in case the appellants were found entitled to restoration of possession of the property is erroneous.
The High Court disposed the contentions in the main appeal observing thus: "It is not necessary for me to examine this question and finally adjudicate it, since I have upheld the decision of the 547 lower appellate Court on other grounds.
I only indicate that the respondents ' counsel thought to sustain the conclusion of the lower appellate court on other grounds as well.
" In the result, the High Court affirmed the decree of the lower Appellate Court and dismissed the second Appeal with costs.
So far as the cross objections are concerned, the High Court passed the following order: "There is no need to dispose of the cross objections on the merits.
It is ordered accordingly.
" Hence the appellants by this appeal are impunging the judg ment of the High Court.
Mr. K.K. Venugopal, Sr.
Counsel appearing on behalf of the appellants, Mr. T.S. Krishnamurthy lyer, Sr. Counsel and Mr. P.S. Poti, St. Counsel appearing on behalf of the first and second respondents respectively took us very meticulous ly and scrupulously through the judgments of all the three courts and put forth the case of their respective parties.
Having heard the learned counsel on either side for a considerable length of time, we are clearly of the view on a conspectus of the relevant Section 13(B) of the Act and on the factual matrix of the case that the result of the case would depend upon the decision of two substantial questions involved, they being (1) Whether respondents 1 and 2 are bona fide purchasers of the scheduled land in dispute for adequate consideration entitling to the benefit of the proviso to Section 13(B)(1)? (2) Whether the appellants are entitled to the benefit of subSection (1) of Section 13(B) of the Act? Before making a more detailed and searching analysis on different aspects of the case, it would be necessary for proper understanding of the issues involved to reproduce the relevant provisions of Section 13(B)(1) of the Act, on the pivotal of which both the questions revolve.
Section 13B: There is no requirement in any of the clauses 548 that an offer of readiness to comply with any order for deposit of costs must be expressed in any judgment, decree or order of court, where any holding has been sold in execu tion of any decree for arrears of rent, and the tenant has been dispossessed of the holding after the 1st day of April, 1964 and before the commencement of the Kerala Land Reforms (Amendment) Act, 1969, such sale shall stand set aside and such tenant shall be entitled to restoration of possession of the holding, subject to the provisions of this Section; Provided that nothing in this sub Section shall apply in any case where the holding has been sold to a bona fide purchas er for Consideration after the date of such dispossession and before the date of publication of the Kerala Land Re forms (Amendment) Bill, 1968 in the Gazette.
If the answer to the first question is in the affirma tive, then there is no need to consider the second question as it would be only academic.
We, therefore, shall now address ourselves in the first instance whether the concur rent finding of facts by both the Appellate Courts relating to the first question warrant interference.
Before the Trial Court whilst the appellants examined PWs 1 to 4 and filed Exhibits A 1 to A22, the respondents examined RWs 1 to 4 and marked Exhibits B. 1 to B .58.
Besides, exhibit X 1, X 2, X 3, X 5 and X 6 and C. 1 to C.4 were also exhibited.
The Respondents 4 to 6 admittedly are brothers.
Though at the initial stage, Mr. Krishnamurthy Iyer did not accept the relationship of the third Respondent with Respondents 4 to 6 on the ground of lack of evidence, subsequently no serious dispute was raised about the said relationship.
The Trial Court has proceeded on the ground that the Respondents 3 to 6 are brothers being the sons of Kunhikannan in whose favour the decree had been assigned.
However, it is admitted during the course of hearing of this appeal that the third Respondent is not a direct brother of Respondents 4 to 6, but son of the step mother of Respondents 4 to 6.
The second Respondent Ambrolil Ammalu is admittedly the wife of the fourth Respondent Krishnan.
The first Respondent Govindan Nair is a stranger.
The third Respondent, the Court auction purchaser sold the property extending 4.35 acres in favour of the first Respondent and the remaining half in favour of the second Respondent under sale deeds Exts.
A.2 and A.3 dated 549 5.12.
Consideration mentioned in each of the sale deeds Exts.
A.2 and A.3 is Rs.3,000.
Out of Rs.3,000 shown as consideration for A.2 a sum of Rs.2,500 is said to have been left with the first Respondent for payment of arrears of rent.
In exhibit A.3, it is recited that the third respondent is said to have already received Rs.2,000 on a promissory note from the second Respondent for meeting the expenses incurred by him for conducting O.S. No. 6/66.
The said sum of Rs.2,000 is stated to have been adjusted towards the consideration under exhibit A3.
The first Respondent has produced a receipt (exhibit B28) showing that out of the amount of Rs.2,500 left with him he had paid a sum of Rs. 100.
There is no other document evi dencing the discharge of the entire alleged arrears of rent out of Rs.2,400.
When the third Respondent was questioned about the promissory note on the strength of which he is stated to have borrowed a sum of Rs.2,000, he has stated that he had returned the promissory note.
This evidence as rightly pointed out by Mr. Venugopal is highly unacceptable because in usual practice whenever a debt, borrowed on a promissory note is discharged that promissory note is re turned to the borrower and never left with the lender.
Moreover, the evidence of the third Respondent is contra dicted by RW. 3, the son of the second Respondent.
According to RW.
3, when exhibit A.3 was executed, the promissory note was returned to the third Respondent.
According to Mr. Venugo pal, this contradictory version betwixt the evidence of the first Respondent and RW.
3 clearly shows that the recital regarding payment of consideration to the extent of Rs.2,000 in exhibit A.3 is not genuine and acceptable and that exhibit A.3 is not fully supported by consideration.
As per the recitals of consideration under Exhibits A.2 and A.3 the total cash consideration received by the third Respondent was only Rs. 1,500 i.e. Rs.500 from the first Respondent and Rs.1000 from the second Respondent.
It is vehemently urged on behalf of the appellants that the third Respondent after purchasing the property for Rs.815 in 1962 would not have parted with it after fighting several litigations for a cash considera tion of Rs.1,500 only.
The evidence of the third Respondent that he left a sum of Rs.2,500 with the first Respondent for discharging arrears of rent and earlier received a sum of Rs.2,000 from the second Respondent on a promissory note is not credit worthy in the absence of any supporting contempo rary documentary evidence.
His assertion that he paid the amount for the Court auction purchase in the year 1962 out of the money in his possession as well as from borrowings shows that he was a man of slender means.
When he was con fronted from whom he borrowed that amount, his answer was that he did not remember from whom and how much he borrowed.
The 550 Trial Court has rightly pointed out in paragraph 19 of its Order that the third Respondent did not leave any impression that he was conversant with the various pending litigations regarding the present property.
Mr. Venugopal drew out attention to another piece of evidence of RW3, deposing that his father was never consult ed with regard to exhibit A3 and assailed his evidence as in credible and bereft of truthfulness and trust worthiness.
Coming to the sale deed, exhibit A2 it is stated that the first Respondent is residing about 11 miles away from Palayed Amson where the property is situated.
He has no other property in Amson.
The reason given by him for purchasing this property which was already riddled with litigation is not at all convincing.
The first appellate Court while perfunctorily rejecting the reasoning of the Trial Court with regard to the consid eration part of exhibit A2 and A3 disposed of that contention in a summary manner holding: "The apparent inadequacy is no ground to think that there is no consideration . .
I don 't think that the recitals in Exhibits A2 and A3 can be overlooked for this or the other reasons stated by the learned Munsiff." Then relying on Exhibits B 17, B28, B31, B41 and B45 and other documents it concluded: "that the Respondents 1 and 2 came into possession of the properties and exercised their rights under Exhibits A2 and A3 by payment of rent and revenue and payment of considera tion spoken to by both the vendor and vendee and as such they are bona fide purchasers for consideration." The High Court accepting the reasons given by the sub Judge held thus: "Most of these documents are public records or registers kept in the respective village office and proceedings in courts.
There is no more of law in placing reliance on such documents.
The finding entered by the learned Subordinate Judge that respondents 5 and 6 are bona fide purchasers for consideration is based on substantial evidence.
It cannot be said to be arbitrary or unreasonable or perverse. ' ' 551 But both the Appellate Courts have conveniently ignored even the relationship of the parties which assumes much importance and significance in evaluating the evidence in the light of the facts and circumstances of the case for reaching a satisfactory conclusion and seem to have summari ly disposed of the case of the appellants.
The question is not the mere inadequacy of consideration as pointed by the lower appellate Court, but lack of evi dence in substantiating the recitals of both the documents.
The next contention advanced by Mr. Venugopal is that though the High Court has formulated as many as 11 substantial questions of law.
it has not dealt with any of them enumer ated as (a) to (e) and examined the question No. (f) in the proper perspective.
Further the important question No. (g) reading "rs not the admitted fact that the 6th respondent is the wife of the 2nd respondent prima facie proof that she is not a bona .fide purchaser for value" is not at all dealt with.
It may be noted in this connection that the 6th re spondent and the 2nd respondent referred to in that question are Ambrolil Ammalu (2nd respondent herein) and Krishnan (4th respondent herein).
As pointed out supra the High Court itself has expressed that it was inclined to dispose of the appeal 'on a short ground '.
The bone of contention of Mr. Krishnamurthy Iyer and Mr. Poti is that it is not open to the appellants to reagitate the matter and request this Court to disturb the concurrent finding of facts arrived at by both the appellate Courts which had rendered their findings on the proper evaluation of the evidence and there can be no justification to review or re appreciate the evidence to take a contrary view in the absence of any contemporaneous document in support of the plea of the appellants.
In addition to the above, Mr. Poti urged that the appellants have not properly and satisfacto rily discharged the onus of proof cast upon them and the concurrent findings based on voluminous documents, the copies of which are not annexed to the SLP for perusal of this Court, do not call for interference.
In reply to the above arguments, Mr. Venugopal has pointed out that none of the documents referred to in the judgments of the appellate Courts would either improve the case of the respondents or deny the claims of the appel lants.
Of the documents relied upon by the appellate Courts, exhibit B 17 and B31 are the true extracts showing payment of tax in the Village Officer Day Book.
exhibit B28 is a rent receipt dated 23.2.1969 issued by the receiver appointed in O.S. 1/64 on the file of the Sub Court (lower appellate Court).
B. 42 is a true extract 552 from the Foodgrains Cultivation Register and B.46 is a true extract from the Peringathor Village Account.
exhibit
B.41 to B.45 are the levy notices and revenue receipts for the years 1967, 1968.
1969 and 1973.
Exhibits B.55 to B.59 are copies of orders in M.C. No. 3/71.
As rightly pointed out by Mr. Venugopal, it is but natural that the receipt for the pay ment of tax, rent receipt, revenue receipt etc., are in the names of the persons in whose names the properties stand and therefore those documents cannot by themselves dispel the claim of the appellants.
Besides, urging with aH emphasis that Exhibits A2 and A3 are only sham and nominal documents, it has been incidentally urged by Mr. Venugopal that the transaction under these two sale deeds is benami in nature.
This argument was stoutly resisted by Mr. Krishnamurthy Iyer stating that in the teeth of Section 66 of the Code of Civil Procedure and in the absence of any proceedings to set aside the sale in favour of respondents 5 and 6 on the ground of fraud etc.
, the plea of benami transaction cannot be counte nanced.
He also cited the decision in Mithilesh Kutnari and Another vs Prem Behari Khare, ; But Mr. Venugopal explained his argument that he has not advanced that argument to set aside the sale deeds on the ground of benami transaction, but only for scrutinising the circum stances of the transaction in examining the validity of the sale deeds.
However, as the plea of benami transaction is not pressed into service, it need not detain us any more.
We shah now examine whether this Court would be justi fied in interfering with the concurrent finding of facts in exercise of its discretionary powers under Article 136 of the Constitution of India.
In a recent decision in Dipak Banerjee vs Lilabati Chakraborty, ; it has been observed thus: "That jurisdiction (under Article 136 of the Constitution of India) has to be exercised sparingly.
But, that cannot mean thai injustice must be perpetuated because it has been done two or three times in a case.
The burden of showing that a concurrent decision of two or more courts or tribunals is manifestly unjust lies on the appellant.
But once that burden is discharged, it is not only the right but the duty of the Supreme Court to remedy the injustice." No doubt, this discretionary power has to be exercised sparingly; Out when there are exceptional and special cir cumstances justifying the exercise of the discretionary powers and where manifest injustice or grave miscarriage of justice has resulted by overlooking or ignoring or 553 excluding material evidence resulting in unduly excessive hardships, this Court will be justified in stepping in and interfering with the concurrent finding of facts in the interest of justice and it is also the duty of this Court to remedy the injustice, so resulted.
Vide Basudev Hazra vs Meutiar Rahaman Mandal; , and Bhanu Kumar Shastri vs Mohan Lal Sukhadia and Others, at pages 385 and 386.
The present case, in our view, suffers from the infirmi ty of excluding, ignoring and overlooking the abundant materials and the evidence, which if considered in the proper perspective would have led to a conclusion contrary to the one taken by both the appellate Courts.
The relation ship of the parties inter se has been completely and conven iently ignored and excluded from consideration.
In fact, the High Court has not rendered any finding on question No. (g) which is one of the eleven substantial questions of law formulated in paragraph 3 of its judgment.
The lack of evidence in support of the recital in regard to the consid eration is completely overlooked.
Therefore, in view of the above exceptional and special circumstances appearing in this case, this Court will not be justified in refusing to exercise its discretionary powers merely on the ground that the conclusion of both the Courts is concurrent.
For the discussions made above, we are of the view that the conclusion arrived at by both the appellate Courts is only backed by assertions rather than by acceptable reason ing based on the proper evaluation of evidence and so we are unable to subscribe to the concurrent finding that the respondents 1 and 2 are bona fide purchasers of the proper ties in dispute for consideration.
On the other hand, we hold that the evidence and circumstances of the case coupled with the evidence on record do establish that the respond ents 1 and 2 are not bona fide purchasers for consideration.
In the result, we hold that the respondents 1 and 2 are not entitled to the benefit of the proviso to sub Section (1) of Section 13(B) of the Act and answer the first ques tion against the respondents and in favour of the appel lants.
We shall now pass on to the next question whether the appellants are entitled to the benefit of Section 13(B)(1) of the Act.
The Kerala Land Reforms Act of 1963 came into force on 1.4.1964.
Amended Act 9 of 1967 was a temporary enactment which 554 remained in force till 31.12.
Thereafter, Act 35 of 1969 came into force from, 1.1.1970 containing Section 13(B) which is substantially on the same terms as Section 6 of Act 9 of 1967 with a proviso superadded.
To invoke this benevo lent provision, the satisfaction of two primary conditions are sine qua non.
Those conditions are: (1) Any "holding" to which a tenant is entitled to resto ration of possession should have been sold in execution of any decree for arrears of rent.
(2) The tenant should have been dispossessed of the "holding" after the first day of April 1964 and before the commencement of the Kerala Land Reforms (Amendment) Act, 1969.
If these two essential conditions are fulfilled, then the sale in execution of any decree for arrears of rent shall stand set aside notwithstanding anything to the con trary contained in any law or in any judgment, decree or order of court and the tenant shall be entitled to restora tion of possession of such holding, but subject to the provisions of this Section 13B.
The only bar for the resto ration of possession under this Section 13(B)(1) is the sale of the holding to a bona fide purchaser for consideration after the date of such dispossession and before the date of publication of the Kerala Land Reforms (Amendment) Bill 1968 in the Gazette.
For invoking the benefit of sub Section (1) of section 13(B) the person entitled to restoration of possession of his holding should within a period of 6 months from the commencement of the Kerala Land Reforms (Amendment) Act, 1969 deposit the purchase money together with interest at the rate of 6 percent per annum in the court and apply to the court for setting aside the sale and for restoration of possession of his holding.
Once these legal formalities are satisfactorily complied with then the Court by holding a summary enquiry shall set aside the sale and restore the applicant to possession of his holding.
The explanation to that section says that the term 'holding ' includes a part of holding.
The expression "holding" is defined in Section 2(17) of the Act.
The language of Section 13(B) is plain, clear and unam biguous representing the real intention of the legislature as reflected not only from the clear words deployed but also from the very purpose of the vesting of rights on the dis placed tenants.
To construe the provisions of a statute especially of a benevolent provision like the one in ques tion, we have to take into consideration the dominant pur pose of the statute, the intention of the legislature and the policy underlying.
Vide 555 P. Rami Reddy & Others vs State of Andhra Pradesh & Others, ; ; Skandia Insurance Co. Ltd. vs Kokilaben Chandravadan & Others, [1987] 2 SCC 654 and M/s Doypack Systems Pvt. Ltd. vs Union of India & Others, ; Admittedly, the third respondent obtained delivery of the property in question through court on 29.1.1965 from the possession of the appellants, who were the tenants of the said property which was sold for arrears of rent and there after the appellants preferred a petition for restoration of possession of their holdings in Execution Application No. 1711/67 under Section 6 of Act 9 of 1967 after depositing the sale amount of Rs.815 and the interest of Rs.255.
Thus the appellants have satisfied the conditions for entitlement of the possession of the property.
While this proceeding was pending, Act 35 of 1969 came into force repealing Act 9 of 1967.
Therefore, the appellants filed the Execution Applica tion No. 566/70 in O.S. 817/43 praying that the present application should be treated as a proceeding in continua tion of the earlier Execution Application and the amount deposited already in the previous Execution Application should be treated as deposit for the present application with an undertaking to deposit the balance, if any.
Though it has been contended by the respondents that the appellants have failed to establish that they were tenants at the time of the dispossession, both the Trial Court as well as the first appellate Court have concurrently found that the appellants were holding the property as tenants and they were dispossessed.
Before the High Court, it was contended that at the time of dispossession of the holding, the appel lants were not tenants but only trespassers, that the dis possesion was only pursuant to the decree in O.S. No. 6/66 and that both the lower Courts have not applied their minds to these salient and vital facts.
The learned Judge of the High Court has answered this contention in the penultimate paragraph of his judgment observing thus: " This is a serious legal error.
It is not necessary for me to examine this question and finally adjudicate it, since I have upheld the decision of the lower appellate court on other grounds.
" Suffice to mention here that the High Court has not specifi cally dislodged the findings of the lower Courts that the appellants were tenants at the time of the dispossession.
However, we will deal with this question presently.
The main thrust of the argument of Mr. Krishnamurthy Iyer is 556 that the appellants are not entitled to restoration of the possession of their 'holding ' because of an intervening cause, that being, that the third respondent, got the pos session of the property which is now sought to be disturbed not in execution of the decree for arrears of rent, but by filing a suit subsequent to 'the court auction purchase.
That intervening cause is explained by the learned counsel 'stating that after the property was delivered over to the third respondent on 29.1.1965, Gopalan Nambiar (since dead) and the first appellant trespassed into the land which necessitated the third respondent to institute a suit O.S. No. 6/66 in the Sub Court of Badagara which was decreed on 27.7.
1966 as evidenced by the judgment (exhibit B16).
He con tinues to state that the third respondent, only in pursuance of the execution of this decree in O.S. 6/66 obtained pos session of the property on 23.8.
1966 and therefore Section 13(B)(1) in view of the said intervening cause cannot be availed of since the third respondent though 'got possession earlier by the auction purchase was dispossessed by the subsequent event of trespass by the appellants and got possession by instituting the suit O.S. 6/66.
One other argument of the learned ' counsel is that as the sales under Exhibits A2 and A3 are only subsequent to the decree in O.S. No. 6/66, these transactions cannot be brought into the dragnet of Section 13(B) and the said provision will have no application to the facts of the present case.
We are afraid, we cannot permit this inconceivable argument to be advanced.
Admittedly, the third respondent purchased the property in court auction sale in pursuance of the decree for arrears of rent in O.S. No. 817/43 and obtained the possession by dispossessing the tenants, namely, the appellants.
It was only thereafter there was trespass by the appellants.
There fore, the subsequent event of obtaining possession of the property in pursuance of the decree in O.S. No. 6/66 will not in any way alter the position that the appellants had been dispossessed in pursuance of the decree for arrears of rent.
The decree in O.S. No. 6/66 for obtaining possession from the trespassers does not confer any new right or title over the property in favour of the third respondent.
Mr. Venugopal countered this argument stating that this new plea should not be allowed to be raised because this plea was never taken both before the trial and the first appellate Courts.
The reply given by Mr. Krishnamurthy Iyer is that since it is a question of law, it is permissible to raise this question even at this stage.
As we have said earlier, even assuming that this plea could be raised, it has no substance in any way affecting the claim of the appellants for the reasons stated supra.
Mr. Poti after giving a brief note about the legislative history that Act 4 of 1961 was declared as void on 5.12.
1961 in respect of certain 557 provisions and that thereafter Act 1 of 1964 was enacted which came into force on 1.4.1964 repealing earlier Act 4 of 1961 advanced a hesitant argument that the application is liable to be dismissed as the entire amount has not been deposited in compliance with sub Section (2) of Section 13(B) which is a condition precedent to claim the restora tion of the possession of the property.
Admittedly the appellants filed an application in the year 1967 for resto ration of the possession of the property under Section 6 of Act.
9 of 1967 and during the pendency of that application, Act 35 of 1969 came into force.
The applicant who had al ready deposited the purchase amount together with interest has made the request to treat that application as the one in continuation of the later proceeding and undertook to pay the deficiency of the amount, if any.
The lower appellate Court in paragraph 6 of its judgment found that the deposit already made was sufficient and that the interest accrued thereafter would be directed to be deposited in case the appellants were found entitled to restoration of possession.
This finding of the first appellate Court concurring with the Trial Court has not been dislodged by the High Court.
It may not be out of place to mention that on account of cer tain divergent views expressed by Judges of the Kerala High Court on this point the question was referred to a Division Bench of that Court which drawing strength on the ratio laid down by this Court in State of Punjab vs Mohar Singh, ; observing: "The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them." and agreeing with the view expressed by Krishnamurthy Iyer, J (as he then was and who is now appearing before us for the first respondent in different capacity) in Civil Revision Petition Nos. 1090 and 109 1 of 1972 wherein this precise question came up for consideration held that the application filed under Section 6 of Act 9 of 1967 which was pending on the date of the commencement of the Act 35 of 1969 was liable to be continued and dealt with under the provisions of the earlier Act, untrammelled by the provisions of the later Act.
We approve the view taken in the above Parameswa ran Narnbudiri 's case and hold that the deposit made in the earlier application under Section 6 of Act 9 of 1967 which was pending on the date of commencement of Act 35 of 1969 was liable to be continued uneffected by the provisions of the later Act.
558 In Summation: We, for the aforementioned discussion, disagree with the findings of the High Court, set aside the impugned judgment and restore the judgment of the Trial Court holding that the sale of the 'holdings ' of the appellants was in execution of the decree in O.S. No. 817/43 for arrears of rent and the appellants who are tenants were dispossessed of the holdings after 1.4.64 and before the commencement of the Kerala Land Reforms (Amendment) Act, 1969 and the respondents 1 and 2 are not bona fide purchasers for consideration.
In view of our above conclusion the appellants are entitled to recover possession of the properties in dispute, but without preju dice to the rights, if any, of the respondents 7 to 10 who are the wife and children of Gopalan Nambiar and who have got themselves impleaded as parties to the present proceed ings.
The amount under deposit made by the appellants is permitted to be withdrawn by the respondents 1 to 3.
In the result, the appeal is allowed with costs.
S.B. Appeal al lowed.

summary:
The appellants fried an Execution Application in 1970 in the Court of Munsiff under Section 13(B) of the Land Reforms Act 1969 for the restoration of the possession of the properties which were sold in Court auction in pursuance of a decree for arrears of rent.
The decree holder and Court auction purchasers were close relatives.
The sale took place on 26.11.
1962 and was confirmed on 14.8.1964.
It is the 3rd Respondent a stranger in the present appeal who purchased the property in the Court auction and got the possession of the same on 9.1.1965 from the appellants.
The appellants trespassed into the suit property again and were ejected in 1966 pursuant to a decree in a suit.
Thereafter the 3rd Respondent i.e. the auction purchaser assigned the property in favour of Respondents No. 1 & 2 who were the close rela tives vide sale deeds dated 5.12.1966 (Exts A2 and A3).
The appellants had already filed Execution Application, for restoration of possession after making necessary deposit for the purchase money under section 6 of Act 9 of 1967.
The same was pending when Act 35 of 1969 came into force and so the appellants made an application with a prayer that the earlier deposit be treated as a deposit under section 13(B) of 1969 Act.
The Court auction purchaser i.e. 3rd Respondent and his assignees Respondents No. 1 & 2 strongly contended that appellants have no interest in the properties.
The appel lants attacked the validity of the sale deeds being made without consideration.
The trial Court held that the appel lants were tenants when they were dispossessed and also held that the deposit made by the appellants was sufficient for restoration of possession, and Respondents No. 1 & 2 are not bona fide purchasers for consideration, and hence set aside the sale.
The Respondents No. 1 & 2 made application before the sub court 540 and the court held the petitioners were competent to main tain the application and were bona fide purchasers as per records such as revenue and tax receipts plus the admission of the vendor and vendee as to the payment of consideration.
As to the deposit made by the appellants it was considered to be sufficient in case they were found entitled for resto ration of possession; set aside the Trial Court order and allowed the appeal.
The appellants therefore filed E.S.A. in the High Court and the High Court upheld that the decision and the decree of the lower Appellate Court as per evidence, and as circum stances of the case complied with public records establish ing that Respondents 1 & 2 are the bona fide purchasers for consideration.
But the first appellate court concurred with the Trial Court regarding the deposit already made to be sufficient and the interest accrued would be directed to be deposited if the appellants were found entitled to restora tion of possession.
The said finding has not been dislodged by the High Court.
Allowing the Special Leave Petition, this Court, HELD: In the instant case, two substantial questions are involved i.e. (1) whether respondents 1 & 2 are bona fide purchasers of the scheduled land in dispute for adequate consideration and thereby entitled to the benefit of the proviso inserted vide Act 35 of 1969 to sec.
13(B)(1).
[547F] (2) Whether the appellants are entitled to the benefit of subsection (1) of section 13(B) of the Act.
[547F G] As per section 13(B) where any holding has been sold in execution of any decree for arrears of rent and the tenant has been dispossessed of the holding after the 1st day of April 1964 and before the commencement of the Kerala Land Reforms (Amendment) Act 1969, such sale shall stand set aside and such tenant shall be entitled to restoration of possession of the holding subject to the provisions of this section.
[558 B C] Provided that nothing in this sub section shah apply in any case where the holding has been sold to a bona fide purchaser for consideration after the date of such dispos session and before the date of the publication of Kerala Land Reforms (Amendment) Bill 1968 in the Gazettee.
[554D E] 541 The concurrent finding of facts by both the appellate courts that Respondents No. 1 & 2 are bona fide purchasers for consideration warrant interference because both the appellate courts have conveniently ignored and excluded from consideration even the relationship of the parties inter se i.e. the decree bolder, court auction purchaser are close relatives and have assigned the property in favour of their close relatives and a stranger This assumes much importance and significance in evaluating the evidence in the light of the facts and circumstances of the case for reaching satis factory conclusion.
The court has failed to render any finding on substantial question of Law.
The lack of recitals with regard to the consideration has also been completely ignored It seemed to have disposed of the case summarily.
[553B D] It is not merely the inadequacy of consideration as pointed out by the lower appellate court but there is lack of evidence in substantiating the recitals of the documents that Respondents No. 1 & 2 are bona fide purchasers.
The receipts for the payment of tax, rent or revenue are by themselves cannot dispel the claims of the appellants.
[545C] The conclusion arrived at by both the courts is only backed by assertions rather than by acceptable reasoning based on the proper evaluation of evidence.
So the evidence and circumstances of the case coupled with the evidence on record do establish that the Respondents 1 & 2 are not bona fide purchasers for consideration.
[553E F] Discretionary powers under Article 136 has to be exer cised sparingly but when there are exceptional and special circumstances justifying the exercise of discretionary powers and where manifest injustice or grave miscarriage of justice has resulted by overlooking or ignoring or excluding material evidence resulting in undue hardships, this Court will be justified in stepping in and interfering with the concurrent findings of facts in the interest of justice and it is also the duty of this Court to remedy the injustice so resulted.
Dipak Baneriee vs Lilabatichakraborty, ; , relied on.
[552H; 553A B] On the question whether the appellants are entitled to the benefit of section 13(B)(1) of the Act, it was held: [553G] The Kerala Land Reforms Act of 1963 came into force on 1.4.1964, Act 9 of 1967 was a temporary Act and remained in force till 31.12.1969, Act 35 of 1969 came into force from 1.1.1970 and section 13(B) is substantially on the same terms as section 6 of 1967 Act with a 542 proviso super added.
To invoke section 13(B) two conditions are sine qua non.
(1) Any holding to which a tenant is entitled to restoration of possession should have been sold in execution of any decree for arrears of rent.
(2) The tenant should have been dispossessed of the holding after 1.4.1964 and before the commencement of 1969 Act.
[553H; 554A C] Thus the tenant shall be entitled to restoration of possession under section 13(B) provided the holding is not sold to a bona fide purchaser for consideration, after the date of dispossession and before the publication of the Kerala Land Reforms (Amendment) Bill 1968 in the Gazettee.
The appellants are entitled to have the benefit of sub section (1) of section 13(B) only if they have made the deposit of the purchase money together with interest at the rate of 6% Per Annum in the Court and applied to the Court for setting aside the sale and for restoration of the hold ing.
The appellants in the instant case had already made deposit under 1967 Act and it was pending when Act 35 of 1969 came into force.
So the appellants made an application with a prayer to treat the said deposites continuation unaffected by the provisions of 1969 Act.
[554D F] The Language of section 13(B) is plain, clear and unam biguous and the very purpose of the section is to vest rights on the displaced tenants, which is the dominant purpose of the statute, which should be considered.
[554G H] P. Rami Reddy & Ors.
vs State of Andhra Pradesh & Ors.
, ; Skandia Insurance Co. Ltd. vs
Kokilaben Chandravadan & Ors., [1987] 2 SCC 654 and M/s. Doypack Systems Pvt. Ltd. vs Union of India & Ors., ; relied on.
The sale of holdings of the appellants was in execution of the decree for arrears of rent in O.S. No. 817 of 1943, and appellants are tenants who were dispossessed of the holdings after 1.4.1964 and before the commencement of 1969 Act.
They are therefore entitled to restoration of posses sion of the properties in dispute but without prejudice of the rights if any of the Respondents Nos. 7 to 10 who are the wife and children of Gopalan Nambiar.
The amount under deposit made by the appellants is permitted to be withdrawn by respondents 1 to 3.
[558B C]