judgement:
Appeal No. 717 of 1973.
Appeal by Special Leave from the Judgement and Order dated 27 10 1972 of the Allahabad High Court in Sales Tax Ref.
No. 857/71.
section Markandeya, for the Appellants.
O. P. Verma, for the Respondent.
The Judgment of the Court was delivered by SEN J.
This is an appeal from a judgment of the Allahabad High Court dated October 27, 1972 which was given upon a reference of certain questions of law made to the High Court by the Additional Judge (Revisions), Sales Tax, Meerut in compliance with its directions under sub section
(4) of section 11 of the U.P. Sales Tax Act, 1948 calling for a statement of the case.
The two questions referred were as follows: 1.
Whether there is no material in support of best judgment assessment ? 2.
Whether on the facts and in the circumstances of this case the assessee acted in respect of the estimated purchase turnover of Rs. 3,80,000 as a dealer so as to be liable to purchase tax ? The Commissioner of Sales Tax submitted that the first question should be answered in the negative and the second in the affirmative.
The High Court decided in favour of the assessee and against the Commissioner, holding that the submission of the assessee was right and answered both the questions to the contrary.
From this decision the appellant, the Commissioner of Sales Tax, has appealed.
The reference arose out of assessment for the assessment year 1967 68 of Messrs Bishamber Singh Layaq Ram which carries on business in jaggery, amchur, khandsari etc.
on its own account and as kuccha arhatiya in jaggery, foodgrains etc.
at Shahpur in the district of Muzaffarnagar, and is registered as a dealer under section 8 A of the Act (hereinafter referred to as 'the assessee ').
The material facts may be stated as follows: During the assessment year in question, the Sales Tax Officer, Muzaffarnagar by his order dated December 27, 1968 rejected the account books of the 551 assessee on the basis of some discrepancies found during the four surveys carried out at his shop and made a best judgment assessment under sub section
(3) of section 7 of the Act, determining the taxable turnover of purchases effected by it as a kutcha arhatiya at Rs. 5,30,000 and the tax payable thereon at Rs. 25,450.
On appeal the Assistant Commissioner (Judicial), Sales Tax, Muzaffarnagar by his order dated August 11, 1969 reduced the taxable turnover of purchases by Rs. 1,50,000 and the tax by Rs. 7,500.
There were two cross revisions by the Commissioner of Sales Tax and by the assessee, both of which were allowed by the Additional Judge (Revisions), Sales Tax, Meerut who by his order dated February 10, 1970 while negativing the plea of the assessee that he was not a dealer, however, felt that on the material on record, the taxable turnover of the assessee could not reasonably be determined at Rs. 3,80,000.
He accordingly set aside the orders of the Assistant Commissioner (Judicial) and of the Sales Tax Officer and directed that there should be a fresh best judgment assessment.
Upon reference, the High Court on question No. 2, as to the liability of the assessee to tax on transactions effected by it as kutcha arhatiya held that the assessee was not a dealer, observing: "If the assessee is a Kutcha Arhatiya then he is not liable to sales tax.
The change in the definition of the word 'dealer ' in 1961 upon which the Judge (Revisions) has relied does not change the situation.
A person can be liable to tax as a dealer only if he acts as an agent having the authority to pass title in the goods sold.
A kutcha arhatiya merely brings together the seller and the purchaser and helps in settling the price and weighing the goods etc.
The fact that he sometimes advances money to cultivators who bring their produce for sale or sometimes pays the entire sale price to the cultivator from his own pocket is not inconsistent with his being a kutcha arhatiya.
" It was rightly contended on behalf of the Commissioner that the High Court was wrong in holding that the assessee was not a dealer within section 2(c) of the Act and that the Sales Tax Officer was not justified in making an assessment to the best of his judgment under section 7(3).
It is pointed out that the High Court has completely overlooked Explanation to section 2(c) of the Act which was inserted by the U.P. Sales Tax (Amendment) Act, 1959, particularly the words 'through whom the goods are sold or purchased ' appearing therein.
with regard to the applicability of section 7(3), it is urged that the question was not referred.
552 The finding arrived at by the High Court that the assessee as a kutcha arhatiya merely brought together the seller and the buyer charging an additional sum by way of commission and, therefore, could not be regarded as a dealer, i.e., a person engaged in the business of buying and selling goods, is contrary to the admitted facts of the case.
The facts stated in the agreed statement of the case clearly show that the assessee is not a kutcha arhatiya, in the usual sense of the term, but his business brings into existence the relation of vendor and purchaser.
The nature of the business carried on by the assessee is described thus: "Cultivators bring their produce to the assessee for sale.
The goods are weighed at his shop and then supplied to the pucca arhatiyas or to other persons.
Price of the commodity in full or part is paid by the assessee to the cultivators directly.
The price from the purchasers is readied afterwards.
In any case it is not the responsibility of the cultivators to realise the price from the purchasers.
On the contrary, it is the assessee who is responsible for the payment of the price to the cultivators.
Some times the cultivators are also paid advances and these are adjusted when the price of the produce is paid to the cultivators." (Emphasis supplied) The decision on the question whether the assessee is a dealer must turn on the construction of section 2(c), which insofar as material, reads: "2(c) "dealer" means any person or association of persons carrying on the business of buying or selling goods in Uttar Pradesh, whether for commission, remuneration or otherwise, Explanation: A factor, a broker, a commission agent or arhati, a del credere agent, an auctioneer, or any other mercantile agent by whatever name called, and whether of the same description as hereinbefore mentioned or not, who carries on the business of buying or selling goods on behalf of his principals, or through whom the goods are sold or purchased shall be deemed to be a dealer for the purposes of this Act.
" There can be no doubt that a pucca arhatiya comes within the substantive part of the definition of 'dealer ' contained in section 2(c) of the Act, but the question still remains whether a kutcha arhatiya is covered by the definition, by reason of the Explanation thereto.
The basic distinction between a kutcha and a pucca arhatiya is that a kutcha arhatiya acts as an agent on behalf of his constituent and never acts as a principal to him.
The person with whom he enters into a transaction on behalf of his constituent is either brought into contact with the constituent or at least the constituent is informed of 553 the fact that the transaction has been entered into on his behalf with a particular person.
But in the case of a pucca arhatiya, the agent makes himself liable upon the contract not only to third parties but also to his constituent.
He does not inform his constituent as to the third party with whom he has entered into a contract on his behalf.
Thus, a pucca arhatiya acts as a principal as regards his constituent and not as a disinterested middleman who brings about two principals together, there being no privity of contract between the constituent and the third party, and may substitute his own goods towards the contract made for the principal and buy the principals goods on his personal account.
On the other hand a kutcha arhatiya usually denotes a person who merely 'brings together the buyer and the seller ' charging his commission, who has no dominion or control over the goods, unlike a pucca arhatiya who deals as a principal in relation to both his constituent and to the third party.
The crucial test is whether the agent has any personal interest of his own when he enters into the transaction or whether that interest is limited to his commission agency charges and certain out of pocket expenses, and in the event of any loss his right to be indemnified by the principal.
This principle was applied in the case of pakki arhat by Sir Lawrence Jenkins C.J. in Bhagwandas Narotmdas vs Kanji Deoji and approved of by the Judicial Committee in Bhagwandas Parasram vs Burjorji Ruttonji Bomanji and by this Court in Shivnarayan Kabra vs State of Madras.
As to the incidents of pakkiarhat, Sir Lawrence Jenkins in Bhagwandas Narotamdas 's case succinctly states the legal position, in his own terse language: "A pakka adatia is not, in the proper sense of the word, an agent or even a del credere agent.
The relation between him and his up country constituent is substantially one of principal and principal." In a commercial sense, a kutcha arhatiya acts as an agent on behalf of his constituent.
The main characteristic of a kutcha arhatiya has been described by the Judicial Committee in Sobhagmal Gianmal vs Mukundchand Balia(4) in these terms: "When a katcha adatia enters into transactions under instructions from and on behalf of his up country constituent with a third party in Bombay, he makes privity of contract between the third party and the constituent, so that each becomes liable 554 to the other, but also he renders himself responsible on the contract to the third party.
" Vivian Bose J. in Kalyanji Kuwarji vs Tirkaram Sheolal(1) puts the matter thus: "The test to my mind is this: does the commission agent when he sells have authority to sell in his own name? Has he authority in his own right to pass a valid title? If he has then he is acting as a principal vis a vis the purchasers and not merely as an agent and therefore from that point or he is a debtor of his erstwhile principal and not merely an agent.
Whether this is so or not must of course depend upon the facts in each particular case.
" It is plain, on an examination of the language as it stood at the material time, from the definition of 'dealer ' in section 2(c) that even a selling or purchasing agent is within that definition.
A person to be a 'dealer ' under that definition must be engaged in the business of buying and selling goods in Uttar Pradesh whether for commission, remuneration or otherwise.
Explanation to section 2(c) brought within the definition of 'dealer ' not only a commission agent, a factor, a del credere agent or any other mercantile agent by whatever name called, and whether of such description or not, but also a broker, an auctioneer as well as an arhatiya.
The use of the words "through whom the goods are sold or purchased" in the Explanation is significant, and they must be given their due meaning.
Thus, the definition of 'dealer ' in section 2(c) is wide enough to include a selling or purchasing agent of whatever name or description.
The term 'arhatiya ' is wide enough to include a kutcha arhatiya.
If the Explanation to section 2(c) of the Act were not there, perhaps it could be said that a kutcha arhatiya is merely an agent who helps cultivators who bring their produce to the market for sale, to find buyers, assist them in weighment and secure to them payment of price, but the assessee here certainly does not answer that description.
That apart, the Explanation clearly brings within the definition of 'dealer ' in section 2(c) a kutcha arhatiya.
It was not suggested at any time that the Explanation was ultra vires the State Legislature being beyond the ambit of Entry 54 of List II of the Seventh Schedule.
The constitutional validity of a similar Explanation to section 2(c) of the Bengal Finance (Sales Tax) Act, 1941 which brought an auctioneer within the purview of the definition of 'dealer ' in that section.
was upheld by this Court in Chowringhee Sales Bureau (P) Ltd. vs C.I.T., West Bengal.(2) The whole object is to tax a transaction of sale in the 555 hands of a person who carries on the business of selling goods and who has the legal or customary authority to sell goods belonging to the principal.
It is evident from the statement of the case that the business carried on by the assessee was more or less similar to that of a pucca arhatiya and it is a misnomer to call it a kutcha arhatiya.
It actually purchased the goods from the sellers, i.e., the cultivators, and then sold them in the market to the other buyers, as if they were its own, obviously at a profit.
It paid to the cultivators the price of the goods it purchased and received from the buyers the price at which is sold.
Selling of goods was not simultaneous with receiving them.
These facts can lead to no other conclusion except that it bought and then sold goods and not merely brought buyers into contact with sellers and arranged transactions between them.
In these circumstances, the High Court should have held the assessee to be a dealer under section 2(c) of the Act, read with the Explanation thereto.
There remains the question whether the High Court was justified in holding that there was no basis for making a best judgment assessment.
The Addl.
Judge (Revisions) had remanded the case for a reassessment on the basis of best judgment, on his finding that there was no material whatever on record to enable him to come to a conclusion one way or the other, on the disputed question of fact, i.e., whether the best judgment assessment of the taxable turnover at Rs. 3,80,000 could be sustained.
Though the question of the applicability of section 7(3) of the Act was not, in terms, referred to the High Court under section 11(4), the Addl.
Judge (Revisions) in stating the case mentioned that the assessee had contended before him that his account books had been wrongly rejected.
The statement of the case sets out the details of the various surveys made and the nature of the deficiencies found.
The High Court treating the question referred to be a composite one, embarked upon an enquiry as to whether the Sales Tax Authorities were justified in rejecting the account books and in making the best judgment assessment under section 7(3).
It has referred to the four surveys carried out on August 11, 1967, December 13, 1967, January 7, 1968 and March 8, 1968.
In the first survey held on August 11, 1967 it was found that the Nagal Bahi had not been written for eleven days.
The High Court observes that 'no adverse inference could be drawn on this account because the assessee 's explanation was that there were no cash transactions for this period, and, therefore, the Nagal Bahi had not been written '.
With regard to the second survey carried out on December 13, 1967 it was discovered that there was 556 a loose parcha containing several entries.
One of the entries of Rs. 371.17 in the name of Sakh Chand Udit Mohan alone was entered in the account books.
That too on December 13, 1967 after inspection while the payment was actually made on December 11, 1967, i.e., it was not contemporaneous with the transaction.
The High Court observes that 'it has not been found that any other entry contained in the loose parcha had not been entered in the account books ', With regard to the third survey carried out on January 7, 1968 when twelve bags of wheat were found in stock, the stock register was not shown to the surveying officer.
The High Court has again accepted the explanation of the assessee saying that 'there was no duty cast on the assessee to produce the stock register and it was not shown since there was no demand for it '.
It observes that 'there is nothing in section 13 or in any other provisions of the Act or the rules framed thereunder which requires a dealer to produce his books of accounts and other documents, before the surveying officer '.
As regards the last survey held on March 8, 1968 the Mondhi Bahi was found to be posted upto February 29, 1968.
Thus there were no entries for eight days.
The explanation of the assessee was that it had not entered into any contract during the eight days in question.
The High Court observes that 'as there was no material whatever for rejecting his explanation, no adverse inference could be drawn with regard to the veracity of the accounts, since Mondhi Bahi is not a necessary account book '.
We are not inclined to agree with this line of reasoning.
While we refrain from expressing any opinion on the requirements of section 13(2) of the Act, we are satisfied that the finding of the High Court that there was nothing wrong with the method of accounting adopted by the assessee cannot be upheld.
In our opinion, the High Court should have declined to go into the question of the applicability of section 7(3) of the Act.
When a question of law was neither raised before the Addl.
Judge (Revisions) nor considered by him nor did it arise on the findings given by him, it will not be a question arising out of his order.
The question as to whether the Sales Tax officer was justified in making a best judgment assessment under section 7(3) of the Act was not referred to the High Court.
It was, therefore, not open to the High Court to go into the question.
It could not allow the new point to be raised for the first time in reference.
Nor was the High Court entitled on a reference under section 11(4) of the Act to set aside the finding of the Addl.
Judge (Revisions) merely because on a reappraisal of the evidence it would have come to a contrary conclusion.
It was also not entitled to examine whether the explanation of the assessee in regard to the deficiencies found in the account books 557 should or should not be accepted.
It may be that the Sales Tax Authorities should have accepted the explanation of the assessee with regard to the aforesaid deficiencies, but it may as well be that there are various other deficiencies which the assessee will have still to explain.
For all these reasons, the judgment of the High Court is set aside and that of the Addl.
Judge (Revisions), Sales Tax Meerut remanding the case for a fresh judgment assessment under section 7(3) of the Act is restored.
There shall be no order as to costs.
N.V.K. Appeal allowed.

summary:
Section 2(c) of the U.P. Sales Tax Act, 1948 defines "dealer" to mean any person or association of persons carrying on the business of buying or selling goods in Uttar Pradesh whether for commission, remuneration or otherwise.
By the U.P. Sales Tax (Amendment) Act, 1949 an Explanation was inserted in this section to provide that a factor, a broker, a commission agent or arhatiya, a del credere agent, an auctioneer, or any other mercantile agent by whatever name called, and whether of the same description as hereinbefore mentioned or not, who carries on the business of buying or selling goods on behalf of his principles, or through whom the goods are sold or purchased shall be deemed to be a dealer for the purposes of the Act.
The respondent (assessee) who was registered as a dealer under section 8A was carrying on business in jaggery, amchur, khandsari etc.
on its own account and as kutcha arhatiya.
The nature of the business carried on by the assessee was that cultivators brought their produce to the assessee for sale.
The goods were weighed at his shop and then supplied to the pucca arhatiyas or to other persons.
Price of the commodity in full or part was paid by the assessee to the cultivators directly, and the price from the purchaser were realised after wards.
During the assessment year 1967 68 the Sales Tax Officer by his assessment order rejected the account books of the assessee on the basis of some discrepancy found during the four surveys carried out at the shop and made a best judgment assessment under sub section (3) of section 7 of the Act, determining the taxable turnover of purchases effected by the assessee as a kutcha arhatiya at Rs. 5.3 lacs and taxed it.
On appeal the Assistant Commissioner (Judicial), Sales Tax reduced the taxable turnover of purchase by Rs. 1.5 lacs.
Cross revisions by the appellant as well as by the respondent were allowed by the Additional Judge (Revisions), Sales Tax who by his order negatived the plea of the assessee that he was not a dealer but held from the material on record that the taxable turnover of the assessee could not reasonably be determined at Rs. 3.8 lacs.
The orders of the Assistant Commissioner (Judicial) and Sales Tax officer were set aside and a fresh best judgment assessment was directed to be made.
549 The High Court upon reference, as to the liability of the assessee to tax on the transactions effected by it as kutcha arhatiya held that the assessee was not a dealer.
It further held that a person can be liable to tax as a dealer only if he acts as an agent having the authority to pass title in the goods sold, and that a kutcha arhatiya merely brought together the seller and the purchaser and helped in settling the price and weighment of the goods etc.
In the appeal to this Court it was contended on behalf of the appellant, that the High Court was wrong in holding that the assessee was not a dealer within section 2(c) of the Act and that the High Court had completely overlooked the Explanation to section 2(c) which was inserted by the U.P. Sales Tax (Amendment) Act, 1959 particularly the words "through whom the goods are sold or purchased", and that the Sales Tax Officer was not justified in making an assessment to the best of his judgment under section 7(3).
Allowing the appeal ^ HELD: 1(i) The finding arrived at by the High Court that the assessee as a kutcha arhatiya merely brought together the seller and the buyer charging an additional sum by way of commission and, therefore, could not be regarded as a dealer i.e. a person engaged in the business of buying and selling goods, is contrary to the admitted facts of the case.
[551 H] (ii) Explanation to section 2(c) brought within the definition of 'dealer ' not only a commission agent, a factor, a del credere agent or any other mercantile agent by whatever name called, and whether of such description or not, but also a broker, an auctioneer as well as an arhatiya.
[554 D] (iii) The definition of 'dealer ' in section 2(c) is wide enough to include selling or purchasing agent of whatever name or description.
The term 'arhatiya ' is wide enough to include kutcha arhatiya.
[554 E] (iv) The basic distinction between a kutcha and a pucca arhatiya is that a kutcha arhatiya acts as an agent on behalf of his constituent and never acts as a principal to him.
A pucca arhatiya acts as a principal as regards his constituent and not as disinterested middleman who brings principals together, there being no privity of contract between the constituent and the third party.
On the other hand a kutcha arhatiya usually denotes a person who merely 'brings together the buyer and seller ' charging his commission, who has no dominion or control over the goods unlike a pucca arhatiya who deals as a principal in relation to both his constituent and to the third party.
In a commercial sense, a kutcha arhatiya acts as an agent on behalf of his constituent.
[552 G 553 B, F] Bhagwandas Parasram vs Burjorji Ruttonji Bomanji, LR (1917 18) 45 IA 29, Shivnarayan Kabra vs State of Madras.
; , Sobhagmal Gianmal vs Mukundchand Balia, L.R. (1926) 53 I.A. 241, Chowringhee Sales Bureau (P) Ltd. vs C.I.T. West Bengal; , , referred to.
2(i) The High Court should have declined to go into the question of the applicability of section 7(3) of the Act.
When a question of law was neither raised before the Addl.
Judge (Revisions) nor considered by him nor did it arise on findings given by him, it will not be a question arising out of his order.
[556 F] (ii) The question as to whether the Sales Tax Officer was justified in making a best judgment assessment under section 7(3) of the Act was not referred to the High Court.
It was, therefore, not open to the High Court to go into the question.
It could not allow the new point to be raised for the first time in reference.
[556 G] 550 (iii) The High Court was also not entitled on a reference under section 11(4) of the Act to set aside the findings of the Addl.
Judge (Revisions) merely because on a reappraisal of the evidence it would have come to a contrary conclusion.
It was also not entitled to examine whether the explanation of the assessee in regard to the deficiencies found in the account books should or should not be accepted.
[556 H]


judgement:
Civil Appeal No. 840 of 1978.
Appeal by Special Leave from the Judgment and order dated 14th December 1977 of the Punjab and Haryana High Court in Civil Revision No 613/74.
Govind Das, Mrs. Urmila Kapoor and Mrs. Shobha Dixit for the Appellant.
M.N. Phadke, N.C. Jain, S.K. Dhingra and S.L. Sethia for the Respondent.
The Judgment of the Court was delivered by PATHAK, J.
This appeal by special leave is directed against a judgment of the High Court of Punjab & Haryana dismissing a tenants ' revision petition.
under section 15(5), East Punjab Urban Rent Restriction Act, 1949 arising out of eviction proceedings.
The respondent, as landlord, applied under section 13(2) (ii) (a) of the East Punjab Urban Rent Restriction Act, 1949 for the possession of a shop forming part of the premises No. 6283, Nicholson Road.
Ambala Cantonment occupied by the appellants.
He claimed that the shop had been let out to the first appellant, Gurcharan Singh but that he had without the written consent of the respondent, sublet the shop to his father, Gurdayal Singh and his brothers, Anoop Singh and Jagjit Singh.
The appellants denied that the shop had been sub let and pleaded that they, along with their father constituted a joint Hindu family, and that the joint Hindu family was the tenant of the shop.
The Rent Controller found in favour of the respondent and passed an order of eviction, which was subsequently affirmed by the Appellate Authority.
The appellants applied in revision, and the High Court has, by its judgment and order dated 14th December, 1977 dismissed the revision application.
The first contention of the appellant is that there is no evidence that the shop was sub let, and the finding is misconceived in ' point of law.
493 It is sufficient to point out that the Rent Control Authorities and the High Court have concurrently found that the shop was let out to Gurcharan Singh and not to the joint Hindu family, and that Gurcharan Singh sub let it in 1967 to a partnership firm consisting of his father and brother.
The finding is supported by ample evidence on the record.
The material shows that the shop was let out to Gurcharan Singh alone, and the business carried on by him was later taken over by a partnership consisting of his father and brothers.
He was no longer proprietor of the business, and merely extended his assistance under a power of attorney enabling him to, act for the partnership.
The execution of the power of attorney establishes that he was not a partner.
It appears that Gurcharan Singh individually carried on some other business, but there is no evidence to show that business was lodged in the shop under consideration.
The material before us demonstrates that the shop was occupied exclusively by the partnership firm and that Gurcharan Singh was left with no right to possession therein.
The evidence is incompatible with the case, now set up before us, that the partnership was merely a licensee of Gurcharan Singh.
Learned counsel for the appellants relies on Hira Singh & Ors.
vs Banarsi Dass.
That case.
however, was one of a joint tenancy, and it was held that the mere circumstance that one of the co tenants had ceased living in the premises for some time could not lead to the inference that he had sub let it to the other co tenants.
The evidence Showed that all the co tenants were carrying or business in partnership, although one of them was not disclosed was a partner.
Some reliance was placed on the circumstance that the licence for carrying on the business stood in the name of Gurcharan Singh.
As the evidence plainly shows, the licence was issued to him when he was carrying on the business, and subsequently, although it continued to stand in his name, it was.
used by the partnership firm, and no inquiry was ever made by the licensing authority, when renewing it, to determine whether the original holder of the licence was still carrying on the business.
We are of opinion that the finding of the High Court and the Rent Control authorities that Gurcharan Singh had sub let the shop is unassailable.
Learned counsel for the appellants contends next that the ground sub letting taken under the East Punjab Urban Rent Restriction Act, 1949 is not available to the respondent because on the date when the sub letting took place that Act was not in force in the Ambala Cantonment.
Now, it appears that section 3 of the Cantonments (Extension 494 of Rent Control Laws) Act, 1957 empowered the Central Government to extend, by notification, to any cantonment with such restrictions and modifications as it thought fit, any enactment relating to the t control of rent and regulation of house accommodation which was in force on the date of the notification in the State in which the cantonment was situated.
In exercise of that power, the Central Government issued Notification No. SRO 7.
dated 21st November, 1969 extending the East Punjab Urban Rent Restriction Act, 1949 to cantonments in the States of Haryana & Punjab.
Consequently, with effect from 21st November.
1969 the East Punjab Urban Rent Restriction Act became a law operating in the cantonment.
Section 13 (2) (ii) (a) of the Act provides for an order of eviction if the Controller is satisfied "that the tenant has, after commencement of this Act, without the written consent of the landlord (a) transferred his right under the lease or sub let the entire building or rented land or any portion thereof.
" It is clear that the tenant falls within the mischief of this sub clause only if he has effected the transfer or sub letting after the commencement of the Act.
The Act commenced to operate in the Ambala Cantonment on 21st November, 1969.
In regard to that territory, it was not law before that date, but only on and from that date.
It is clear that the sub letting in the present case having been effected in 1967, was not made after the commencement of the Act.
Learned counsel for the respondent urges that section 13(2)(ii)(a) of the Act uses the words "has sub let", and submits that sub letting is a continuous process and that even though in the present case it may be said to have commenced before the Act came into force it continued in operation after the Act was brought into force.
Now, when section 13(2)(ii)(a) speaks of a tenant who "has sub let", it refers to a tenant who has entered into a transaction of sub letting.
And the transaction of sub letting is referable to a single point of time.
It is the moment when the act effecting the sub letting is completed.
That transaction is located at a fixed point.
What happens then is that a flowing stream of rights and obligations issues from the sub letting.
Those rights continue as long as the sub lease subsists.
but they have their source in the definitive transaction of sub letting located in a single fixed point of time.
We may add that in the context of section 13(2)(ii)(a) of the Act.
the words "has sub let" imply that the sub letting must subsist on the date when the Act comes into force.
The reason is apparent from the object of the Act, which is to protect the personal occupation of the tenant.
The protection is not extended to a tenant who has abandoned occupation of the premises and has passed possession to another, even though by way of a sub tenancy.
495 The protection against eviction is not available for permitting a tenant to make a profit out of his tenancy rights by sub letting the premises.
Therefore, the words "has sub let" unqualified by any reference to the commencement of the Act.
refer to a transaction of sub letting entered into before or after the commencement of the Act, and in the case where sub letting has been effected before the commencement of the Act the sub lease must subsist, and the rights under it continue to flow, on the date of the commencement of the Act.
In the present case, however, section 13(2)(ii)(a) of the Act confines its scope to sub leases effected after the commencement of the Act, that is to say, transactions of sub letting effected after the date when the Act came into force.
For that reason, a sub letting effected before the commencement of the Act cannot be brought within the mischief of section 13(2)(ii)(a) even though it continues to subsist on or after the commencement of the Act.
In Goppulal vs Thakurji Shriji Shriji Dwarkadheeshji & Anr.
on which learned counsel for the respondent relies, the relevant provision did not include the words "after the commencement of this Act".
and, therefore, took within its scope a sub letting transacted before the coming into force of the relevant Act.
In our opinion, the respondent cannot avail of section 13(2)(ii)(a) of the East Punjab Urban Rent Restriction Act on the basis that it was brought into operation in the Ambala Cantonment by the Notification of 1969.
We find, however, that the Cantonment (Extension of Rent Control Laws) Act, 1957 was amended by Act No. XXII of 1972.
Upon amendment, section 1(2) of the principal Act declared that the principal Act would be deemed to have come into force on 26th January, 1950.
The words "on the date of the Notification" were omitted in section 3(1) of the principal Act, and were deemed always to have been omitted, so that under section 3 the Central Government must be deemed to have been empowered always to extend to a cantonment any enactment relating to the control of rent and regulation of house accommodation in force in the State even as it stood before the date of the Notification.
This amendment was made in order to accord with the further amendment made by inserting sub section (3) in section 3 of the principal Act, which provided that where an enactment in force in any State relating to the control of rent and regulations of house accommodation was extended to a cantonment from a date earlier than the date of such extension was made, such enactment, as in force on such earlier date, would apply to such cantonment.
Section 3(2) was added in the principal Act, and it provided: 496 "2.
The extension of any enactment under sub section
(1) may be made from such earlier or future date as the Central Government may think fit: Provided that no such extension shall be made from a date earlier than (a) the commencement of such enactment, or (b) the establishment of the cantonment, or (c) the commencement of this Act, whichever is later.
" Subject to the proviso, the Central Government now enjoyed power to extend an enactment from a date earlier than the date of the notification or from a future date.
Subsequently, the Central Government issued Notification No. SRO 55, dated 24th January, 1974 superseding the earlier Notification No. SRO 7, dated 21st November, 1969 and extending the East Punjab Urban Rent Restriction Act afresh to cantonments in the States of Haryana and Punjab.
Section 1(3) of that Act was modified to read that, except for section 19, it would be deemed to have come into force on 26th January.
The result is that the East Punjab Urban Rent Restriction Act will be deemed to have come into force in the Ambala Cantonment on 26th January, 1950.
And if that be so, the sub letting effected in 1967 must plainly be regarded as having been made after the commencement of that Act.
Two points are raised on behalf of the appellants against that conclusion.
The first is that the power under section 3 of the having been exercised once, that is to say, by the Notification dated 21st November, 1969, the power of extension stood exhausted and could not be availed of again, and therefore the Notification dated 24th January, 1974 was without statutory sanction and invalid.
We are referred to Lachmi Narain etc., etc.
vs Union of India & Ors.
That was a case where this Court held that a Notification under section 2 Part States (Laws) Act, 1950 having been issued in 1951 by the Central Government extending the Bengal Finance (Sales Tax) Act, 1941 to the State of Delhi, the power given by section 2 exhausted itself on the extension of the enactment and could not be exercised again to enable the issue of a fresh Notification modifying the terms in which the Bengal Act was extended.
The case is clearly distinguishable.
The power under which the Notification dated 24th January, 1974 has been issued is a separate and distinct power from that under which the Notification dated 21st November, 1969 was made.
The power now exercised passed into the , 497 1957 when it was amended in 1972.
In its nature and quality it is not identifiable with the power vested under the unamended Act.
A power conferred by statute is distinguished by the character and content of its essential components.
If one or more material components characterising the power cannot be identified with the material components of another, they are two different and distinct powers.
Although broadly the power envisaged in section 3 of the amended is a power of extension even as it was under the unamended Act, there is a vital qualitative difference between the two.
The power under the unamended Act was a limited power.
It could operate prospectively only.
There was no choice in the matter.
After amendment, the Act provided for a power which could be exercised retrospectively.
The power extended to giving retrospective effect to an enactment in force in the State in the form in which that enactment was in force on the date on which the extension was made.
It was a power whose reach and cover extended far beyond what the power under the unamended Act could achieve.
We are of the view that in issuing the Notification dated 24th January, 1974 and thereby extending the East Punjab Urban Rent Restriction Act to the Ambala Cantonment retrospectively with effect from 26th January, 1950, the Central Government exercised a power not available to it when it issued the Notification dated 21st November, 1969.
The contention that the issue of the Notification of 24th January, 1974 amounted to a further exercise of power conferred by section 3 of the , under which the earlier Notification was issued is without force and must be rejected.
The second point raised is that in clause (c) of the proviso to section 3(2) of the , which speaks of "the commencement of this Act", the words "this Act" refer to the Cantonments (Extension of Rent Control Laws) Amendment Act, 1972, which commenced to operate from 2nd June, 1972.
The argument is founded in fallacy.
The words "this Act" refer to the principal Act in which sub section 3(2) is inserted by virtue of the amendment, and that Act, by virtue of section 2(2) as amended, must be deemed to have come into force on 26th January, 1950.
In the result, the appeal fails and is dismissed with costs.
Appeal dismissed.

dataset_name: IN-Abs

summary:
Section 3 of the empowers the Central Government to extend by notification to any cantonment any enactment relating to the control of rent and regulation of house accommodation which was in force on the date of notification in the State in which the cantonment was situated.
In exercise of this power the Central Government by a notification dated November 21, 1969 extended the East Punjab Urban Rent Restriction Act, 1949 to the cantonments in the States of Haryana and Punjab.
By virtue of section 3(2) which was added in the 1957 Act in 1972, the Central Government enjoyed power to extend an enactment from a date earlier than the date of notification or from a future date.
In January, 1974 the Central Government issued a notification superseding tho earlier notification dated November 21, 1969 and extended afresh the 1949 Act to cantonments in Haryana and Punjab.
Section 13(2)(ii)(a) of the 1949 Act provides for an order of eviction if the Controller is satisfied that the tenant has, after the commencement of this Act without the written consent of the landlord has sublet the entire building or a portion thereof.
The respondent landlord in the instant case applied for possession of his premises in Ambala Cantonment under the occupation of the appellant tenant on the ground that without his written consent the tenant had sub let the shop.
The appellant claimed that it was the joint Hindu family of which he was a member that was the tenant and therefore there was no question of the premises being sub let by him to the joint family.
The Rent Controller ordered eviction.
His order was affirmed by the appellate authority.
The High Court dismissed the tenant 's revision application.
Before this Court it was contended that (1) there was no evidence that the shop was sub let; (2) since the 1949 Act was not in force in the Ambala Cantonment in 1967 when the sub letting was alleged to have taken place, the landlord could not avail of the provisions of that Act and (3) the notification issued in 1974 was without statutory sanction and was invalid because once the Central Government had exercised the power in 1969 that power stood exhausted and the Government could not invoke it again in 1974.
491 Dismissing the appeal, ^ HELD: 1 The finding of the High Court and the Rent Controller that the tenant had sub let the shop is unassailable.
The shop, to begin with, was let out to the appellant alone and not to the joint Hindu family.
The business carried on by him was later taken over by a partnership consisting of the father and brothers and he was no longer the proprietor of the business.
[493 G & B] 2(a) The 1949 Act became law operating in the Ambala Cantonment with affect from November 21, 1969 when the Central Government extended that Act to the cantonments in Haryana and Punjab.
The sub letting having taken place in 1967 when the 1949 Act was not in force the landlord could not avail of the provisions of that Act.
[494B D] (b) In the context of section 13(2)(ii)(a) of the 1949 Act the words "has sub let" imply that the sub letting must subsist on the date when the Act came into force.
Tho words "has sub let", if they are unqualified by any reference to the commencement of the Act, refer to a transaction of sub letting entered into before or after commencement of tho Act and in a case where sub letting has been effected before the commencement of the Act the sub lease must subsist, and the rights under it continue to now, on the date of the commencement of the Act.
In the present case, section 13(2)(ii)(a) confines its scope to sub leases effected after the commencement of the Act, that is to say, transactions of sub letting effected after the date when the Act came into force.
For that reason, a sub letting effected before the commencement of the Act cannot be brought within the mischief of the section even though it continues to subsist on or after the commencement of the Act.
[494H; 495A B] Goppulal vs Thakurji Shriji Shriji Dwarkadheeshji & Anr.
; held inapplicable.
3(a) By virtue of tho amendments made to tho 1957 Act in 1972 the 1949 Act will be deemed to have come into force in the Ambala cantonment on January 26, 1950.
Therefore, the sub letting effected in 1967 must plainly be regarded as having been made after the commencement of that Act.
[496D E] (b) In issuing the notification dated January 24, 1974 and thereby extending the 1949 Act to the Ambala Cantonment retrospectively with effect from January 26, 1950 tho Central Government exercised a power not available to it when it issued tho earlier notification of November 21, 1969.
The contention that the notification of January, 1974 amounted to a further exercise of the same power conferred by section 3 of the 1957 Act is without force.
[497 D E] The power under which the notification of January, 1974 had been issued is a separate and distinct power from that under which the earlier notification was made.
The power now exercised passed into tho 1957 Act when it was amended in 1972.
In its nature and quality it is not identifiable with the power vested under the unamended Act.
A power conferred by statute is distinguished by the character and content of its essential components.
If one or more material components characterising the power cannot be identified with the material components of another, they are two different and distinct powers.
The power under the unamended Act was a limited Dower 492 which could operate prospectively only while the power after amendment was retrospective.
It was a power whose reach and cover extended far beyond what the power under the unamended Act could achieve.
[497 A C] (c) The words "this Act" occurring in the commencement of this Act" in clause (c) of the proviso to section 3(2) of the 1957 Act refer to the principal Act in which sub section (2) was inserted in section 3 and not to the Amendment Act of 1972.
By virtue of section 2(2) as amended it is the principal Act which must be deemed to have come into force on January 26, 1950 [497 G]


judgement:
ivil Appeal Nos.
143 147 of 1970.
From the Judgment and Order dated 17 2 1967 of the Calcutta High Court in Appeal from Original Order Nos.
123 127 of 1966.
D. N. Mukherjee and G. section Chatterjee for the Appellants.
section Balakrishnan and M. K. D. Namboodry for the Respondent.
B. Sen and D. N. Mukherjee for the Intervener.
The Judgment of the Court was delivered by KOSHAL, J.
By this judgment we shall dispose of Civil Appeals Nos.
143 to 147 of 1970, all five of which have been filed by certificates granted under article 133(1)(a) of the Constitution by the High Court of Calcutta and are directed against its common judgment dated the 17th February, 1967 accepting five Letters Patent Appeals and, in reversal of the judgment of a learned Single Judge, issuing a writ of mandamus directing the Land Acquisition Collector, Burdwan and the State of West Bengal to cancel or withdraw a notification dated November 3, 1961 and another containing a declaration dated June 20, 1963 issued under sections 4 and 6 of the Land Acquisition Act (hereinafter referred to as the Act) respectively.
575 2.
The facts leading to the litigation covered by the appeals before us may be briefly stated.
On February 12, 1960 a notification (later in this judgment called the first notification) was issued by the Government of West Bengal under section 4 of the Act stating that a piece of land delineated in the plan available in the Office of the Special Land Acquisition Officer, Burdwan, as well as in that of the Director of M/s Sen Raleigh Industries India Ltd. (hereinafter referred to as the Company) at Kanyapur in District Burdwan was likely to be needed for a public purpose (not being a purpose of the Union) namely, for expansion of the factory of the Company and "for construction of quarters for its workers and staff and for providing other amenities directly connected therewith, such as school, play grounds, hospitals, markets, police out posts, etc., in the villages of Sarakdih, Nadiha, Garui, Hatgaruy and Panchgachhia, jurisdiction lists Nos. 1, 2, 3, 42/3 and 34 respectively, Police Stations Asansol and Barabani, Pargana Shergarh, District Burdwan. " at the expense of the Company.
An area totalling 17.20 acres and belonging to the respondents was included in the land covered by the notification.
The respondents preferred objections to the proposed acquisition under section 5A of the Act to the effect that the land was not acquired for any public purpose, that the real purpose was to benefit the Company and that the first notification was a fraudulent exercise of the power conferred by the Act on the State Government.
A fresh notification (second notification for short) under section 4 of the Act was issued on November 3, 1961 in respect of land measuring 146.90 acres which was the same land as was covered by the first notification, except for a small area.
The second notification stated that the land was likely "to be needed for a public purpose, not being a purpose of the Union, namely, for industrial development at Asansol in the villages of Sarakdih, Nadiha, Garui, Hatgaruy and Panchgachhia, jurisdiction list Nos. 1, 2, 3, 78 and 34 respectively, Police Stations Asansol and Barabani, Pargana Shergarh, District Burdwan. at public expense." The area of 17.20 acres mentioned above was included in the land covered by the second notification also and the respondents filed objections under section 5A of the Act over again contending that although the ostensible purpose of the acquisition was a public purpose, the land was really sought to be acquired for a private purpose, i.e., for the benefit of the Company.
The first notification was cancelled by an order dated the 26th April 1962 and, on the 20th June, 1963, the impugned notification 576 containing the declaration under section 6 of the Act (the third notification for brevity) was made.
About three months later the respondents were served with notices under section 9 of the Act informing them that the State Government was taking steps to secure possession of the acquired lands and that they could submit their claims for compensation.
Further representations were made by the respondents in an effort to have the acquisition proceedings dropped but without success and it was then that each one of them filed a petition under Article 226 of the Constitution asking for the issuance of a writ which was ultimately granted to them by the impugned judgment.
The grounds of challenge taken in all the petitions were identical and were to the following effect: (a) Full particulars of the public purpose for which the land was sought to be acquired were not stated in the second and third notifications.
(b) Both those notifications were issued in colourable or malafide exercise of the power conferred by the Act.
Before the learned Single Judge ground (b) was not pressed at the hearing.
In relation to ground (a) he held that the industrial development of a particular area was in itself a public purpose and no further details of such purpose need be given in the notifications issued under the Act.
Reliance in this connection was placed on Barkya Thakur vs State of Bombay(1).
It was further observed by the learned Single Judge that the proceedings under section 5A of the Act in relation to the impugned notifications had not been completed, that it would be open to the respondents might possibly have another cause of action in case the supply of information was refused and that the petitions under Article 226 of the Constitution were, therefore, pre mature.
All the five petitions were in the result dismissed by the learned Single Judge.
In the Letters Patent Appeals decided by the impugned order the argument advanced on behalf of the respondents before us that the purpose of the acquisition as stated in the impugned notifications suffered from vagueness and that they had in consequence been deprived of the right to make effective objections under section 5A of the Act was held to be untenable.
The Division Bench noticed that the learned Single Judge had erred in assuming that the objections filed by the respondents under the section last mentioned had not been decided by the time of his judgment.
The ground that the real purpose of the proposed acquisition was not a public purpose at all but 577 was to benefit the Company and that the impugned notifications were, therefore, issued in colourable exercise of the powers conferred on the State Government by the Act was strongly put forward before the Division Bench and was considered by it at length.
Relying upon Somawanti vs State of Punjab(1), it held that although a declaration made under section 6 of the Act was final and conclusive not only in regard to the need for acquisition but also in regard to the purpose being a public purpose if it was so stated therein, it was open to a person whose land was acquired to challenge it on the ground of colourable exercise of power.
The Division Bench referred to the pleadings of the parties and took note of the fact that although the respondents had clearly taken up the position that the real purpose of the acquisition was not a public purpose but was to benefit the Company, the Land Acquisition Collector had not in his affidavit taken any specific stand on the point but had only made an evasive denial of the plea put forward by the respondents and that while it was open to the State Government to produce documentary evidence showing that the purpose for which the land was acquired was a public purpose and not merely to benefit the Company it had failed to adopt that course.
Refusing to hold, however, that there had been a colourable exercise of power on the part of the State Government the Division Bench held that the presumption that if such evidence had been produced it would be unfavourable to the State Government was available to the respondents in the present case.
In this connection it further observed: "After all, when the proposed acquisition is impugned as acquisition in colourable exercise of power and there is a specific allegation of the real purpose of the acquisition, it is for the respondents to disclose, except for good reasons, the relevant material or information, to enable the Court to pronounce on the matter and not to maintain a meaningful silence or indulge in equivocations and double standards, rely on the doctrine of onus of proof and defect the course of justice.
For the Court to permit this to be done with success, will be to stultify itself, abdicate its functions and abjure its duties.
" and on this finding accepted all the five Letters Patent Appeals.
After hearing learned counsel for the parties we find that the learned Judges of the Division Bench seriously erred in accepting the Letters Patent Appeals in view of the finding arrived at by them that malafides or a colourable exercise of power on the part of the State Government could not be held established.
Not only had their attention been drawn to the dictum in Somawanti 's case (supra) but they 578 had in the impugned judgment extracted certain observations made therein by Mudholkar, J., to the effect that a declaration made under section 6 of the Act and published in the Official Gazette shall be conclusive evidence that the land is needed for a public purpose and that to this rule there was only one exception, namely, that the declaration could be challenged on the ground of malafide or colourable exercise of power.
It was thus clear that the third notification had to be taken at its face value in so far as the purpose was concerned unless the exception was established.
It further goes without saying that the onus of proving that the declaration contained in the third notification fell within the exception would be on the party claiming the benefit of the exception, namely, the respondents.
While criticizing the attitude of the State Government for not having produced the documentary evidence from which the purpose of the acquisition could be ascertained, section K. Mukherjee, J., who delivered the judgment on behalf of the Division Bench, repeatedly stated that he did not intend to say that the land of the respondents was not sought to be acquired for a purpose which was a public purpose as declared in the third notification or that that notification was necessarily vitiated by any malafides or colourable exercise of power.
He further observed that according to the rules of evidence it was for the respondents to satisfy the Court that there had been a colourable exercise of power because the onus of proof in that behalf was on them.
In this situation we do not see how the respondents could be given any relief whatsoever.
The acquisition could be struck down only if the declaration contained in the third notification was proved to be vitiated by malafides or colourable exercise of the power.
On the other hand.
if it was not established that such exercise of power was so vitiated, the declaration had to be taken at its word.
On the findings of fact arrived at by the Division Bench, therefore, the Letters Patent Appeals merited nothing but dismissal.
Learned counsel for the respondents urged that they were really entitled to a finding of malafides on the part of the State Government but we find ourselves wholly unable to agree with him.
The burden, as he concedes, was squarely on the respondents to prove colourable exercise of power.
In the face of the conclusive presumption which the Court has to raise under sub section (3) of section 6 of the Act about the nature of the purpose stated in the declaration being true.
the onus on the respondents to displace the presumption was very heavy indeed and we do not think that the same could be said to have been discharged by a mere allegation in that behalf which has been denied by the State.
If we accept the argument that it is for the State to satisfy the Court about the nature of the purpose for which the land is sought to be acquired, the whole object of the provi 579 sion under which the conclusive presumption has to be raised in regard to the nature of the purpose would be defeated.
We cannot, therefore, hold merely on the strength of the absence of production of documentary evidence by the State that the onus (which rested heavily on the respondents) to prove malafides or colourable exercise of power on the part of the State Government, has been discharged.
Even so the respondents have produced no material to show that the assertion about the public purpose as stated in the third notification was incorrect for the reason that the acquired land was not suitable for any industry or that no industrial activity except that by the Company had been undertaken in the neighbourhood of the acquired area.
On the other hand, there is a clear averment to the contrary by the State in paragraph 1 of each of the applications dated August 26, 1967, for the grant of certificates under Article 133 of the Constitution.
That averment reads: "That the Asansol Sub Division within the District of Burdwan is a highly developed industrial area having a number of big industrial concerns, viz.
The Indian Iron & Steel Co., Indian Aluminium Corporation and several collieries, etc., etc.
It is within the industrial belt of Durgapur Asansol area where besides the above mentioned industries, there are Hindustan Steel, Durgapur Projects Graphite Company and a number of other very big industries." This averment which was supported by affidavit was never controverted by the respondents and cuts at the root of their plea of malafides or colourable exercise of power.
Mr. Balakrishnan, learned counsel for the respondents raised a preliminary point to the effect that the second notification was void inasmuch as it had been issued while the first notification was still in force.
We do not see any reason for entertaining the point when it was not raised on behalf of the respondents at any stage before the High Court.
In the result all the five appeals succeed and are accepted.
The impugned judgment is set aside and the petitions made by the respondents to the High Court are dismissed.
There will, however, be no order as to costs in any of the appeals.
P.B.R. Appeals allowed.

summary:
The State Government issued a notification under Section 4 of the Land Acquisition Act stating that the land referred to therein was needed for a public purpose, namely, for expansion of the factory of a Company at the expense of the company.
On the respondents ' objections that the purported purpose was not a public purpose in that the land was being acquired for the benefit of a company, the State Government issued another notification in respect of the same land as also some more land stating that the land was needed for industrial development at public expense.
Objections were again raised by the land owners that though ostensibly the purpose was a public purpose in truth it was a private purpose, namely, for the benefit of a company.
In cancellation of the first notification the Government issued another notification under section 6.
Dismissing the respondents ' writ petitions under Article 226 a single Judge of the High Court held that the industrial development of a particular area was in itself a public purpose and no further details need be given in the notifications.
On appeal, a Division Bench of the High Court held that although a declaration under section 6 was final and conclusive as to the need for acquisition and as to the purpose being a public purpose, the aggrieved party could challenge a declaration only on the ground of mala fides and colourable exercise of power and that in the instant case no such allegation had been made out.
The appeals were, however, allowed on the ground that the State Government failed to produce evidence that the land was being acquired for a public purpose and not for the benefit of a company.
Allowing the appeals.
^ HELD: The High Court erred in accepting the appeals in view of its finding that mala fides or colourable exercise of power on the part of the State Government had not been established.
It is well settled law that a declaration under section 6 of the Act shall be conclusive evidence that the land is needed for a public purpose, the only exception to this being that the declaration was issued mala fide or in colourable exercise of power.
The third notification 574 in this case had to be taken at its face value in so far as the purpose was concerned.
[577B; 578B] 2.
The burden of proving mala fides or colourable exercise of power is on the party claiming the benefit of the exception, namely the respondents.
This burden could not be held to have been discharged by a mere allegation in that behalf.
[578H] 3.
If the argument that it is for the State to satisfy the Court about the nature of the purpose for which the land is sought to be acquired is accepted the whole object of the provision under which the conclusive presumption has to be raised in regard to the nature of the purpose would be defeated.
It cannot, therefore, be held merely on the strength of the absence of production of documentary evidence by the State that the onus (which rested heavily on the respondents) to prove mala fides or colourable exercise of power on the part of the State Government has been discharged.
[578 H, 579 A B] 4.
The respondents have produced no material to show that the assertion about the public purpose as stated in the third notification was in correct for the reason that the acquired land was not suitable for any industry or that no industrial activity, except that by a company, had been undertaken in the neighbourhood of the acquired area.
There is a clear averment to the contrary by the State which was not controverted by the respondents and that cuts at the root of their plea of mala fides or colourable exercise of power.
[579 B C; E]


judgement:
ition No. 4659 of 1979 (Under Article 32 of the Constitution.) G. section Mann for the Petitioner.
Har Dev Singh for the Respondents.
The Judgment of the Court was delivered by PATHAK, J.
The petitioner applies for relief under Article 32 of the Constitution against the orders of the High Court of Punjab and Haryana withdrawing judicial work assigned to him and thereafter prematurely retiring him from service.
The petitioner, after holding a number of minor posts in the Punjab Government, was appointed to the Punjab Civil Service (Executive Branch) and subsequently in April, 1965 migrated to the Punjab Civil Service (Judicial Branch).
He remained a Judicial officer thereafter.
The petitioner claims that he was entitled to promotion to a Selection Grade post in the Punjab Civil Service (Judicial Branch) and subsequently to a post in the Punjab Superior Judicial Service.
The claim was based in both cases on the footing that a post had been reserved in the two services for a member of the Scheduled Castes.
It was also asserted that the petitioner was entitled to the posts even 509 without reference to such reservation.
The petitioner 's case is that his service record was uniformly good, but as the High Court was actuated by mala fides it refused him promotion.
He cites some instances to support the allegation of mala fides, including the circumstance that having been appointed to the post of Senior Subordinate Judge he was "reverted" as Subordinate Judge.
On 4th November, 1978 the High Court ordered withdrawal of all judicial work from the petitioner and on 8th November, 1978 a Judicial officer was posted in his place.
The petitioner then filed the present writ petition for the quashing of the orders dated 4th November, 1978 and 8th November, 1978, for his reappointment as Senior Subordinate Judge and, thereafter, his promotion to the Selection Grade post of the Punjab Civil Service (Judicial Branch) with effect from 1st November, 1966 and his promotion to the Punjab Superior Judicial Service with effect from 1st November, 1967.
He also claimed an injunction against his premature retirement from service.
This Court entertained the writ petition but declined to grant interim relief.
On 29th December.
1978 the Punjab Government, accepting the recommendation of the High Court, sanctioned the premature retirement of the petitioner from the Punjab Civil Service (Judicial Branch) with effect from 30th December, 1978 on which date the petitioner completed twenty five years qualifying service for the purposes of the Punjab Civil Service (Premature Retirement) Rules, 1965.
In regard to the petitioner 's claim for promotion to the Selection Grade post in the Punjab Civil Service (Judicial Branch) with effect from 1st November, 1966, and to a post in the Punjab Superior Judicial Service with effect from 1st May, 1967 on the basis that a post had been reserved in each of the services for a member of the Scheduled Castes, it seems to us that the claim is grossly belated.
The writ petition was filed in this Court in 1978, about eleven years after the dates from which the promotions are claimed.
There is no valid explanation for the delay.
That the petitioner was making successive representations during this period can hardly justify our overlooking the inordinate delay.
Relief must be refused on that ground.
It is not necessary, in the circumstances, to consider the further submission of the respondents that the provision on which the petitioner relies as the basis of his claim is concerned with the appointment only of members of the Scheduled Castes to posts in the Punjab Superior Judicial Service and not to recruitment by promotion to that service.
The petitioner has also claimed that even without the advantage of reservation he is entitled to promotion to a Selection Grade post in the Punjab Civil Service (Judicial Branch) and to a post in the Punjab 510 Superior Judicial Service, and that the High Court should have promoted him accordingly.
The position taken in reply by the High Court is that the character and quality of the petitioner 's work and conduct, as evidenced by confidential reports pertaining to him, did not justify his promotion having regard to the guidelines laid down by the High Court.
We have personally examined the records in respect of the petitioner, and we are unable to say that the view taken by the High Court is unreasonable or arbitrary.
We may now examine the contention of the petitioner that the order of premature retirement is invalid.
He has assailed the application of the Punjab Civil Service (Premature Retirement) Rules, 1975.
He urges that as a Judicial officer in the Punjab Civil Service (Judicial Branch) he is not governed by these rules.
It is true that originally rule 7 of those Rules provided that they would not apply to persons belonging to any judicial service of the State.
But by notification dated 18th August, 1975, * * * in exercise of the powers under Article 234 of the Constitution besides other provisions, Rule 7 was substituted by another rule which did not exempt members of the judicial service from the operation of the Premature Retirement Rules.
The Premature Retirement Rules were finalised after consultation with the High Court and, therefore, must be regarded as complying with Article 234 of the Constitution.
There is nothing in the Punjab Civil Service (Judicial Branch) Rules which excludes the operation of the Retirement Rules.
We are therefore, not satisfied that the Premature Retirement Rules cannot be applied to the case of the petitioner.
It is urged by the petitioner that the High Court, when it applied the Premature Retirement Rules, did not consider the case of the petitioner on its facts.
We have, however, the affidavit of the Registrar of the High Court which states that the case of the petitioner was considered by the High Court on 26th October, 1978, and having regard to the policy laid down by the High Court it was decided to recommend to the Government that the petitioner should be retired from service in the public interest with effect from 30th December, 1978, the date on which he completed twenty five years of qualifying service.
At the same time it was decided as a matter of policy by the High Court that all the work pending in the court of a Judicial officer, in respect of whom a recommendation for premature retirement had been made to the Government, should be withdrawn immediately pending a decision by the Government on such recommendation.
It was in implementation of that policy that the order directing withdrawal of judicial work from the petitioner was made.
511 It is next contended by the petitioner that the expression "public interest" in the Premature Retirement Rules is vague and the rule is for that reason ultra vires.
In our opinion, the expression in the context of premature retirement has a well settled meaning.
It refers to cases where the interests of public administration require the retirement of a government servant who with the passage of years has prematurely ceased to possess the standard of efficiency, competence and utility called for by the government service to which he belongs.
No stigma or implication of misbehaviour is intended, and punishment is not the objective.
It appears to us to be beyond dispute that the decision of the High Court to recommend the premature retirement of the petitioner in the light of his record of service must be regarded as falling within the scope of the expression "public interest".
The petitioner also asserted that Judicial officers whose record of service was inferior or equivalent to that of the petitioner have not been prematurely retired, and have been retained in service.
The High Court, however, has stated that no such Subordinate Judge has been retained in service.
We see no reason why the High Court should not be believed.
Another point raised by the petitioner is that Article 311 of the Constitution has been violated by the Premature Retirement Rules.
We think that the concept of premature retirement which has found expression in the Rules does not fall within the scope of Article 311.
As we have observed, no element of punishment is involved in premature retirement and it is not possible to say that Article 311 is attracted.
The petitioner has justified the filing of this writ petition under Article 32 of the Constitution on the plea that his fundamental rights under Articles 14, 16, 17 and 46 are violated.
We find no substance at all in that plea.
The petitioner alleges mala fides on the part of the High Court.
It is a reckless allegation, and impossible to countenance.
There is nothing whatever to indicate that the High Court, as a body, was motivated by mala fides against the petitioner.
The instances alleged by the petitioner in support of his allegation of mala fides fail to prove his case.
The High Court has offered a perfectly valid explanation in respect of each instance.
The petitioner points out that the High Court has refused to permit encashment of unutilised earned leave.
On 512 the material before us, we are not satisfied that a case of mala fides has been made out.
These are the only points raised by the petitioner which deserve consideration.
There is no force in them.
The petition fails and is dismissed, but in the circumstances there is no order as to costs.
V.D.K. Petition dismissed.

summary:
The petitioner after holding a number of minor posts in the Punjab Government, was appointed to the Punjab Civil Service (Executive Branch) and subsequently in April 1965 to the Punjab Civil Service (Judicial Branch).
From the post of Senior Subordinate Judge he was reverted as Subordinate Judge.
Later, on 4th November, 1978, the High Court ordered withdrawal of all judicial work from the petitioner and on 8th November, 1978 a Judicial officer was posted in his place.
Subsequently he was prematurely retired with effect from 30th December, 1978 on which date he completed 25 years qualifying service for the purposes of Punjab Civil Service (Premature Retirement) Rules, 1975.
The petitioner then filed a writ petition under Article 32 of the Constitution in the Supreme Court for the quashing of the orders dated 4th November, 1978 and 8th November, 1978, for his reappointment as Senior Subordinate Judge and, thereafter, his promotion to the Selection Grade post of the Punjab Civil Service (Judicial Branch) with effect from 1st November, 1966 and his promotion to the Punjab Superior Judicial Service with effect from 1st November, 1967.
He also claimed an injunction against his premature retirement from service, which relief was refused.
Dismissing the petition, the Court. ^ HELD: (1) Inordinate delay without valid explanation therefor to the claim for promotion itself is a valid ground for refusal of relief to a petitioner.
Successive representations made by the petitioner during the period can hardly justify the delay.
[509F] (2) The High Court was justified, as borne out by the records, not promoting the petitioner to a post in the Punjab Superior Judicial Service.
The view of the High Court was neither unreasonable nor arbitrary.
[510A B] (3) The Punjab Civil Service (Premature Retirement) Rules, 1975 are applicable to judicial officers as well.
These rules were finalised after consultation with the High Court and therefore, must be regarded as complying with Article 234 of the Constitution.
Further, there is nothing in the Punjab Civil Service (Judicial Branch) which excludes the operation of the Retirement Rules.
[510 E] 508 (4) As a policy decision was taken by the High Court that all the work pending in the court of the Judicial officers, in respect of whom a recommendation for premature retirement had been made to the Governor, should be withdrawn immediately pending a decision by the Government on such recommendation, it cannot be said that the withdrawal of judicial powers in the case of the petitioner was wrong.
Even his premature retirement had been properly recommended as a policy matter under the Premature Retirement Rules.
[510G H] (5) The expression "public interest" in the context of premature retirement has a well settled meaning.
It refers to cases where the interest of public administration requires the retirement of a Government servant, who with the passage of years, has prematurely ceased to possess the standard of efficiency, competence and utility called for by the Government service to which he belongs.
No stigma or implication of misbehavior is intended and punishment is not the objective.
[511A B] (6) There is no discrimination or violation of Articles 14, 16, 17 and 46 of the Constitution in view of the fact, as borne out by the records, that no other judicial officer whose record of service was inferior or equivalent to that of the petitioner had not been prematurely retired.
[511 F, D] (7) The concept of premature retirement which has found expression in the Punjab Civil Service (Premature Retirement) Rules, 1975, does not fall within the scope of Article 311.
No element of punishment is involved in premature retirement and Article 311 therefore is not attracted.
[511 E]