judgement:
ivil Appeal No. 4003 of 1989.
From the Judgment and Order dated 17.12.
1986 of the Bombay High Court in Civil Revision A. No. 270 of 1983.
R.S. Hegde and N. Ganpathy for the Appellant.
The Judgment of the Court was delivered by K.N. SAIKIA, J.
Leave granted.
Heard learned counsel for the appellant.
None appears for the respondents.
The appellant as plaintiff instituted suit No. 32 of 1964 in the Court of Civil Judge (Senior Division), Auranga bad for declaration of title, possession and mesne profits of the suit property.
The respondents 1 and 2 as defendants 1 and 2 resisted the suit mainly on the ground that they were inducted as tenants by Sirajuddin who allegedly ac quired title to the suit property by a deed of gift executed by Hasmuddin in favour of his wife Waliunnissa from whom it was inherited by Sirajuddin.
The trial court decreed the suit holding that Sirajuddin had no right or title and the defendants were trespassers.
In the appeal therefrom by the defendants 1 and 2 before a Division Bench of the Bombay High court the same plea of tenancy was raised and rejected; and it was held that the gift of the suit property by Has muddin in favour of Waliunnissa was not proved.
Their appli cation for leave to appeal therefrom to the Supreme Court was also rejected.
The decree holder moved the execution petition being Special Darkhast No. 20 of 1967 for delivery of possession.
The respondent Nos. 1 & 2 (who were judgment debtor Nos. 1 & 2) objected to the execution on the ground that they were tenants and could not, therefore, be dispossessed in execu tion of the decree of the Civil Court.
The Executing Court rejected this objection and directed the Darkhast to pro ceed.
The defendants ' Civil Appeal No. 264 of 1977 therefrom was also rejected by the High Court.
Thereafter when the aforesaid Darkhast No. 20 of 1967 was set down for proceed ing further, once again the same judgment debtor Nos. 1 & 2 raised the plea of tenancy; and this time the Executing Court raised an issue of tenancy and referred the same to the Tenancy Court for determination.
The appellant moved the High Court in Civil Revision Application No. 270 of 1983 and the High Court observed, inter alia, that the Executing Court was not justified in raising an issue of tenancy, as such an issue did not arise 220 at all the Court having found on evidence that Waliunnissa had no title to the suit property and her son Sirajuddin could not have inherited it as an heir of Waliunnissa, and as such there could be no question of creation of tenancy interest by those who themselves had no title; that the judgment debtors ' earlier objection to execution on the ground of their claim of tenancy was also rejected; and it was not open to the judgment debtor Nos. 1 & 2 to once again raise an issue of tenancy before the Executing Court which ought to have rejected the same contention.
Even so, the High Court having noted that judgment debtor No. 2 had already filed an independent proceeding under the Hyderabad Tenancy and Agricultural Lands Act, 1950 (hereinafter re ferred to as 'the Tenancy Act ') for declaration of his tenancy rights in the suit land observed that, if that was so, then the competent authority under the Tenancy Act would have to decide the issue "on its own merits and in accord ance with law irrespective of and regardless of all observa tions, if any, touching upon such a claim of tenancy in the civil proceedings between the parties, viz. Special Suit No. 32 of 1964 and Appeal No. 824 of 1967".
The High Court also observed that the question of tenancy was not directly in issue between the parties in the aforesaid civil proceedings and the judgment debtor No. 2 was not, therefore, debarred from instituting proceedings under the Tenancy Act before the competent authority.
The High Court further observed that as the execution proceedings had been pending since the year 1967 it was expected that the competent authority would decide the proceedings expeditiously.
Accordingly the High Court allowed the revision and set aside the impugned order dated April 28, 1983 passed by the Executing Court in the said Special Darkhast No. 20 of 1967 to the extent it re ferred issue No. 1 to the Tenancy Tahsildar or Mamlatdar under Section 99(a) of the Tenancy Act and the Executing Court was directed to proceed further with the Special Darkhast No. 20 of 1967 in the light of those observations.
In this appeal the appellant assails the Judgment of the High Court on the grounds, inter alia, that the High Court committed a serious error, while setting aside the order of the Executing Court referring the issue of tenancy to the Tahsildar, at the same time allowing the proceedings under the Tenancy Act before the Tahsildar to proceed in the face of the fact that the judgment debtors ' objection on the basis of their tenancy was already rejected by the Executing Court; and in holding that the competent authority should decide the issue of tenancy in accordance with law irrespec tive of and regardless of all observations made in the suit and the appeal.
221 In course of arguments, the learned counsel for the appellant has stated that the competent authority under the Tenancy Act, during the pendency of this special leave petition, has already passed an order in favour of judgment debtor No. 2 and the appellant has also since filed an appeal therefrom before the appellate authority.
In view of this subsequent development we have to examine the legal position qua the Tenancy Act.
The Tenancy Act had amended the law regulating the relations of land holders and tenants of agricultural land and the alienation of such land.
"Tenancy" as defined in section 2(u) of the Tenancy Act, means the relationship of land holder and tenant.
"Tenant" as defined in section 2(v) means an assami shikmi who holde land on lease and includes a person who is deemed to be a tenant under the provisions of the Tenancy Act.
As defined in section 2(r) "protected tenant" means a person who is deemed to be a protected tenant under the provisions of sections 34 to 37.
Under section 31 of the Tenancy Act no interest of a tenant in any land held by him as a tenant shall be liable to be attached or sold in execution of a decree or order of a Civil Court.
Section 32 of the Tenancy Act deals with procedure of taking possession.
Under subsec tion (1) thereof, a tenant or an agricultural labourer or artisan entitled to possession of any land or dwelling house under any of the provisions of this Act may apply to the Tahsildar in writing in the prescribed form for such posses sion.
Under sub section (2) thereof, no land holder shall obtain possession of any land or dwelling house held by a tenant except under an order of the Tahsildar, for which he shall apply in the prescribed form.
Under sub section (3), on receipt of an application under sub section (1) or sub section (2) the Tahsildar shall, after holding an enquiry, pass such order thereon as he deems fit.
Section 33 provides that the Tenancy Act is not to affect the rights, privileges of tenant under any other law.
Save as provided in subsec tion (1) of section 30, nothing contained in this Act shall be construed to limit or abridge the rights or privileges of any tenant under any usage or law for the time being in force or arising 'out of any contract, grant, decree or order of a court or otherwise howsoever.
Chapter IV in sections 34 to 46 deals with rights of protected tenants.
Chapter IX of the Tenancy Act in sections 87 to 95 deals with Constitution of Tribunal; Procedure and Powers of Authorities; Appeals etc.
Chapter XI contains the Miscellaneous provisions.
Section 99, dealing with Bar of Jurisdiction provides: "(1) Save as provided in this Act no Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decid ed or dealt with by the Tahsildar, Tribunal or Collector or by the Board of 222 Revenue or Government.
(2) No order of the Tahsildar, Tribu nal of Collector or of the Board of Revenue or Government made.under this Act, shall be questioned in any Civil or Criminal Court.
" Section 104 enjoins the Act to prevail over other enactments and says: "This Act and any rule, order or notification made or issued thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other enactment with respect to matters enumerated in List II in the Seventh Schedule to the Constitution of India or in any instrument having effect by virtue of any such other enactment.
" The Tenancy Act was inserted in the Ninth Schedule to the Constitution at Entry 36.
Article 3 lB of the Constitution of India gives full protection to the Tenancy Act and its provisions in the Schedule against any challenge on the ground of inconsistency with or abridging of any of the rights conferred by Part III of the Constitu tion and it would be so notwithstanding any judgment, decree or order of any court or Tribunal to the contrary.
Though after the decree of the civil court, on the authority of Latchaiah vs Subrahmanyarn, ; , it could be said that when the person who inducted the tenants on the land was found to be a trespasser on the date of the induction, the tenants could not continue to have a right to be on the land against the will of the true owner, yet, taking into consideration the exclusive nature of jurisdiction of the Tenancy authorities under the Tenancy Act, the above provisions, and the fact that the appellant has already preferred an appeal from the order of the compe tent authority, we are not inclined to interfere with the impugned order, as it will now be open to the appellant to place the decisions rendered in her favour by the Civil Courts before the competent authority hearing the appeal and to proceed in accordance with the provisions of the Tenancy Act.
If ultimately the judgment debtor No. 2 is held to have been or not to have been a tenant, it will be open for the appellant to proceed accordingly further in the Special Darkhast No. 20 of 1967 as directed by the High Court.
This appeal is disposed of as above, with no order as to costs.
R.S.S. Appeal dis posed of.

summary:
The appellant/plaintiff instituted a suit for declara tion of title, possession and mesne profits of the suit property.
The respondents/ defendants 1 and 2 resisted the suit mainly on the ground that they were tenants of one Sirajuddin who had allegedly acquired title to the suit property on the basis of a gift in favour of his wife.
The Trial Court decreed the suit holding that Sirajuddin had no right or title and that the defendants were trespassers.
The High Court rejected the defendants ' appeal and the special leave therefrom was rejected by this Court.
The decree holder moved an Execution Petition for pos session.
The respondents objected to the execution on the ground that they were tenants and could not, therefore, be dispossessed in execution of the decree of the Civil Court.
The objection was rejected and the High Court rejected the appeal therefrom.
Thereafter, when the Execution Petition was set down for proceeding further, once again the respondents raised the plea of tenancy, and this time the Executing Court raised an issue of tenancy and referred the same to the Tenancy Court for determination.
The appellant appealed to the High Court.
The High Court observed that there could be no question of creation of tenancy interest by those who themselves had no title; that the judgment debtors ' earlier objection to execution on the ground of their claim of tenancy was also rejected; and it was not open to the judgment debtors to once again raise an issue of tenancy before the Executing Court which ought to have rejected the same contention.
Even so, the High Court having noted that judgment debtor No. 2 had already filed an independent proceeding under the Hyd erabad Tenancy and Agricultural Lands Act, 1950 for declara tion of his tenancy rights observed that, if that was so, then the Competent 218 Authority under the Tenancy Act would have to decide the issue on its own merits and in accordance with law irrespec tive of and regardless of all observations, if any, touching upon such a claim of tenancy in the civil proceedings be tween the parties.
The High Court also observed that the question of tenancy was not directly in issue between the parties in the civil proceedings and the judgment debtor No. 2 was not debarred from instituting proceedings under the Tenancy Act before the Competent Authority.
The High court allowed the revision petition, set aside the order of the Executing Court referring the issue of tenancy, and directed the Executing Court to proceed further with the Execution Petition.
Before this Court it was contended that the High Court committed a serious error while setting aside the order of the Executing Court referring the issue of tenancy to the Tehsildar, at the same time allowing the proceedings under the Tenancy Act before the Tehsildar proceed in the face of the fact that the judgment debtors ' objection on the basis of their tenancy was already rejected by the Executing Court, and in holding that the competent authority should decide the issue of tenancy in accordance with law irrespec tive of and regardless of all observations made in the suit and the appeal.
Disposing of the appeal, this Court, HELD: (1) The Tenancy Act had amended the law regulating the relations of land holders and tenants of agricultural land and the alienation of such land.
[221B] (2) Though it could he said that when the person who inducted the tenants on the land was found to be a trespass er on the date of the induction, the tenants could not continue to have a right to be on the land against the will of the true owner, yet, taking into consideration the exclu sive nature of jurisdiction of the Tenancy authorities under the Tenancy Act, and the fact that the appellant has already preferred an appeal from the order of the competent authori ty, the Court was not inclined to interfere with the order of the High Court appealed against.
[222D E] Latchaiah vs Subrahmanyam, ; , referred to.
(3) It will now be open to the appellant to place the decisions rendered in her favour by the Civil Courts before the competent authority hearing the appeal and to proceed in accordance with the provisions of the Tenancy Act.
[222F] 219


judgement:
ivil Misc.
Petition No. 20065 of 1988.
In Civil Appeal No. 1702 of 1987.
From the Judgment and Order dated 31.3.1987 of the Allahabad High Court in C.M.W.P. No. 5702 of 1985.
Petitioner in person.
G. Ramaswamy, Additional Solicitor General, C.V.S. Rao and A.K. Srivastava for the Respondents.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
Petitioner, a Lt. Colonel in the Indian Army, has filed this application for taking contempt proceeding against the respondents on the allegation that the directions contained in the judgment of this Court, dated 20th April, 1988, in Civil Appeal No. 1702 of 1987 have not been complied with.
This Court in the Civil Appeal found that the petitioner was entitled to a reconsideration of his claim for promotion on the basis of his medical categorisation continuing as S I and directed: "The appeal is allowed in part and to the extent that the appellant 's medical cate gory shall be taken as being continued to be S I from 1977 and on that basis his promotion al entitlement shall be finalised by the respondents within three months hence." After this Court 's decision, by a letter dated 17th of June, 1988, the respondents informed the petitioner to the following effect: "In this connection, I have been directed to inform you that your case has been reexamined in the light of the judgment of the Supreme Court of India dated 20th April, 1988.
It may kindly be recalled that acting rank of Lt. Col. was granted to you with your original seniority based on the earlier direc tions of the Hon 'ble Court.
Substantive 373 rank of Lt. Col. was also granted to you along with your batch mates.
Consequent to the Supreme Court 's judgment dated th August, 1983, your case for promotion to the rank of A/Colonel was considered on three occasions viz., July 86, April 87, November 87 and rejected on all the three occasions based on your overall performance and merit of your batch.
Your medical category was not taken into consideration as per the laid down proce dure.
Therefore, upgradation of your medical category from Shape 2 to Shape I by the Su preme Court vide their orders dated 20th April, 1988, does not warrant reconsideration of your case for promotion because your medi cal category had not affected your case for promotion to the rank of A/Colonel on any occasion.
You failed to make the grade for promotion not on the basis of your medical category but on the basis of your overall performance and merit of your batch " Upon notice in this miscellaneous proceed ing a counter affidavit was filed on behalf of the respondents stating that the petition was misconceived and he was not entitled to any relief as claimed.
It was stated that the promotional entitlements of the petitioner had been finalised as per the directions of this Court after reexamining the petitioner 's case for promotion within the specified time and as there was no failure to comply with the direc tions, no contempt had been committed.
The counter affidavit proceeded to state: "As per the selection procedure explained in the proceeding paragraphs, the medical category of Lt. Col.
K.D. Gupta was not taken into cognizance.
On receipt of the directions of the Supreme Court dated 20th April, 1988, Lt. Cot.
Gupta 's case for promo tion was reexamined.
Since the Hon 'ble Court had given no such directions to the effect that the case of Lt. Col. Gupta shall be placed before the Selection Board and has only directed that the petitioner 's promotional entitlements be finalised in view of his continued medical category in Shape I since 1977, his case was reexamined and finalised and the same was intimated to him vide our letter dated 17th June, 1988".
The record of consideration for promotion of the petitioner at the various stages by the Board was directed to be produced before the Court.
In a further affidavit on behalf of the respondents, Col. Bharucha stated that: 374 "By letter dated 26.5.
1988, the Military Secretary observed as under: The Officer was considered by No. 3 Selection Board for promotion to the acting rank of Colonel and awarded the following: (a) 'R ' (Unfit) in July 1986 with ACR 84/85 (b) 'R ' (Unfit) in April, 1987 with ACR 6/85 to 2/86.
(c) 'R ' (Unfit) in November, 1987 with ACR 6/86 to 5/87 The Officer has been finally superseded for promotion to the rank of acting Colonel based on his overall profile and his medical catego ry was not taken into account during the above three considerations.
However, the officer has been granted the substantive rank of Lt. Colonel w.e.f. 01 August, 1979 vide Gazette Notification No. 1774/87 dated 19th September, 1987.
Therefore, no further action is required by the department in pursuance of the judgment of this Hon 'ble Court dated 20.4.1988." "I state that the petitioner had addressed a demi official letter dated 02.5.1988 to the Chief of Army Staff in this regard.
The Chief of Army Staff called for the details of the case of the petitioner and the same were placed before the Chief of Army Staff on 03.6.1988.
The Chief of Army Staff after considering the note put up to him, directed the office to intimate the petitioner accordingly.
By letter dated 17.6.1983, the office has informed the petitioner, a copy of which is enclosed herewith.
It is, therefore, humbly submitted that the case of the peti tioner was considered after the judgment of this Hon 'ble Court dated 20th April, 1988 by the Military Secretary of the rank of Lt. General and it was found that it is not neces sary to send him for selection board as he was already found unfit without reference to his medical certificate Shape II".
375 On 24th of January, 1989, this Court made the following order: "After carefully considering the matter, we direct the respondents to reconsid er the case of the appellant for promotion on the basis that his medical category continues to be S I from 1977.
The medical category will be taken into account if the rules for promo tion so require, otherwise not.
The considera tion of promotion will be completed within four weeks from today . " We have been informed that the petitioner 's case was considered on the basis of record and he was not found fit for any promotion.
It is relevant to notice at this stage that the petitioner had come before this Court on an earlier occasion by filing writ petition No. 5302 of 1980 which was disposed of on August 10, 1983 This Court in its judgment indicated: "Shri Abdul Khader, learned counsel for the respondents explained to us that the petition er had been reverted from the rank of Acting Lt. Colonel to Major for three reasons: (i) Reduction in rank had to follow as a matter of course on placement of the petitioner in a lower medical category; (ii) After the latest medical exami nation in 1978, he was not eligible to be considered for promotion for one year; his earlier reduction in rank was, therefore, justified; and (iii) He performed no duty for six months from March 22, 1976 when he was admit ted in the hospital and under the rules, he stood automatically reduced in rank.
We find no substance in any of the reasons mentioned by Shri Abdul Khader.
Shri Khader was unable to draw our attention to any rule, order or circular which prescribed that reduction in rank should inevitably follow on placement of an officer in a lower medical category.
In fact it was conceded by Shri Khader that an officer whose medical classifi cation is downgraded, will not be reduced in rank on that account, but will continue to hold the same rank as 376 before.
We are, therefore, unable to under stand why the petitioner had to be reduced in rank because subsequent to his promotion, his medical classification was downgraded.
The second reason given by Shri Khader that the petitioner would not be eligible to be promot ed for a year after the latest medical exami nation and, therefore, his earlier reduction in rank was justified, is only to be stated as rejected.
When the petitioner was promoted, he satisfied all the requirements including that of medical categorisation, if any.
We find it impossible to agree with the proposition that since he would be ineligible to be promoted today, he could not have been promoted yester day when he satisfied all the requirements.
The reason really pressed before us was the third reason, namely, that the petitioner had not performed any duty for six months and, therefore, he had to be reduced in rank in accordance with paragraph 5 of Special Army Instruction No. 1 dated January 9, 1974.
We do not propose to examine the question whether Special Army Instruction No. 1 authorises a reduction in rank for failure to rejoin duties for more than six months since that appears to be the case of the petitioner also.
" The counter affidavit filed m the writ petition and the submissions of counsel advanced at the hearing thereof clearly indicate that the medical category of the petitioner was connected with his entitlement to promotion.
In fact in the civil appeal itself the petitioner 's claim for promotion to higher ranks, keeping the promotions accorded to his batch mates in view, was challenged on the basis of the petitioner 's lower medical category.
In the affidavits filed in the civil appeal the respondents never took the stand that entitlement to promotion as claimed by the petitioner had nothing to do with the state of his healthphysical and mental.
If that stand had been adopted, this Court would certainly have gone into that question before directing the petitioner 's case to be reexamined by a Special Board of Psychiatrists, on the basis of whose report, the petitioner was allowed to be continued in shape I from 1977 without any break.
It is not disputed that the petitioner had in the second round of the litigation mainly pressed for his promo tion by contending that his medical categorisation was vitiated.
Counsel for the respondents at no stage during the hearing of the appeal advanced the contention that the claim for promotion was not, in any manner, connected with the medical category of the petitioner.
That is why this Court in its judgment stated: 377 " . . on the basis of material available on the record which had been partly dealt with by this Court on the earlier occa sion while disposing of the writ petition, and what we have now found on the basis of the result of examination by the Committee of Experts the appellant has become entitled to limited relief.
Though there was no order reducing him from the rank of acting Lt. Colonel to Major, he was treated to have been so reduced.
Then followed the frequent psychi atric examinations without any real justifica tion.
These have constituted the foundation of the appellant 's grievance.
His recategorisa tion as S II in 1978, in these circumstances, was without justification.
He is, therefore, entitled to a reconsideration of his claim for promotion on the basis of his medical categor isation continuing as S I." "The appellant, inter alia, has asked for entitlement to promotion in view of promo tions earned by his batchmates.
We do not think that would be a safe guide but we do hope and trust that the respondents would consider his case for promotion with an open mind on the basis of his continuity in Shape I." The judgment of this Court did clearly proceed on the foot ing that the lower medical categorisation prejudiced the petitioner in the matter of obtaining appropriate promo tions.
For the first time, the respondents have taken the stand in the contempt proceeding that the lower categorisa tion has nothing to do with the refusal to accord promotion to the petitioner.
In the circumstances indicated above, the plea now advanced cannot be accepted.
In fact, Mr. Ramaswa my, Additional Solicitor General, appearing for the respond ents being cognizant of this situation stated to us during the hearing of this application that the petitioner has justification to feel aggrieved.
The respondents have maintained that the petitioner has not served in the appropriate grades for the requisite period and has not possessed the necessary experience and training and consequential assessment of ability which are a precondition for promotion.
The defence services have their own peculiarities and special requirements.
The considera tions which apply to other government servants in the matter of promotion cannot as a matter of course be.applied to defence personnel of the petitioner 's category and rank.
Requisite experience, consequent exposer and appropriate review are indispensable for 378 according promotion and the petitioner, therefore, cannot be given promotions as claimed by him on the basis that his batch mates have earned such promotions.
Individual capacity and special qualities on the basis of assessment have to be found but in the case of the petitioner these are not avail able.
We find force in the stand of the respondents and do not accept the petitioner 's contention that he can be grant ed promotion to the higher ranks as claimed by him by adopt ing the promotions obtained by his batch mates as the meas ure.
In the appellate judgment, this Court said: "He has also indicated in paragraph 8 of that petition that he is prepared to be released from service after his promotional entitlements are finalised and is given his dues on such basis as may be determined.
The appellant has claimed compensation which we see no basis to grant".
The petitioner also told us in course of the hearing of this case that even if he is not accorded promotions as claimed by him, he should suitably be compensated and thereafter he should be released from the Army on the basis of voluntary retirement.
The respondents have also indicated that his retirement is being processed separately.
The question for consideration now is as to how the petitioner has to be compensated and what should be its measure.
The petitioner has, of course, advanced tall claims by contending that he has suffered physical and mental torture, loss of reputation and of social acceptance and financial loss.
What promotions the petitioner would other wise have earned would be a matter of speculation and cannot be ascertained at this stage.
for lack of appropriate deci sive criteria.
His grievance that he suffered in dignity and humiliation as a result of being looked down upon by his batch mates, friends and relatives has perhaps been suffi ciently met by the appellate judgment which has declared that his lower medical categorisation was unjustified and the petitioner continued to be Shape I without break from 1977.
The defence personnel have peculiar incidence of serv ice.
Life 's course does not run smoothly for everyone.
In the present proceeding which is for contempt, we do not think that we can award compensation under every head of claim.
Some of factors relevant for such purpose are the duration of time for which the petitioner was subjected to various medical checks and hospitalisation, and the conse quent suffering which he underwent, the loss of promotional prospects 379 and the fact that he would now be obliged to request to be released from service pre maturely.
We are of the view that a total compensation of Rs. four lakhs would meet the ends of justice.
This would obviously mean that the petitioner would not be entitled to any other claim on these heads but we make it clear that he would be entitled to all other service benefits which an officer of the Lt. Colonel 's rank, which the petitioner admittedly holds, would be entitled to.
This judgment should serve the petitioner in vindication of his stand and to dispel clouds cast on his physical and mental health by the purported lower medical characterisa tion and obviously in the event of his being considered for reemployment after retirement his suitability would be considered on the basis of his service records and the judgment of this Court.
We direct that the amount of Rs. four lakhs be paid to the petitioner within two months and the petitioner may be released from the defence service m accordance with any decision that may be taken on his request for such release.
The contempt proceeding is disposed of with these direc tions and no order as to costs.
G.N. Petition dis posed of.

dataset_name: IN-Abs

summary:
The appellant has filed a contempt petition against the Respondents, alleging that the directions dated 20.4.1988 of this Court, have not been complied with.
The Respondents were directed to reconsider the case of the appellant for promotion on the basis that his medical category continues to be S I from 1977, and that the medical category would be taken into account if the rules for promo tion so require; otherwise not.
It was also directed that the consideration of promotion would be completed within four weeks; (See 1988(3) SCR 646).
On behalf of the respondents, it was stated that the promotional entitlements of the petitioner had been fina lised as per the directions of the Court, after re examining the petitioner 's case for promotion within the specified time and since there was no failure to comply with the directions, no contempt had been committed.
It was also submitted that the petitioner 's medical categorisation has nothing to do with the refusal to promote him.
Disposing of the petition, HELD: 1.
The judgment of this Court did clearly proceed on the footing that the lower medical categorisation preju diced the petitioner in the matter of obtaining appropriate promotions.
For the first time, the respondents have taken the stand in the contempt proceeding that the lower categor isation has nothing to do with the refusal to accord promo tion to the petitioner.
The plea now advanced cannot there fore be accepted.
[377E F] 371 2.
The .defence services have their own peculiarities and special requirements.
The considerations which apply to other government servants in the matter of promotion cannot as a matter of course be applied to defence personnel of the petitioner 's category and rank.
Requisite experience, conse quent exposer and appropriate review are indispensable for according promotion, and the petitioner, therefore cannot be given promotions as claimed by him on the basis that his batch mates have earned such promotions.
Individual capacity and special qualities on the basis of assessment have to be found but in the case of the petitioner these are not avail able.
[377G H; 378A B] 3.1 As regards compensation, the petitioner advanced tail claims by contending that he has suffered physical and mental torture, loss of reputation and of social acceptance and financial loss.
What promotions the petitioner would otherwise have earned would be a matter of speculation and cannot be ascertained at this stage for lack of appropriate decisive criteria.
His grievance that he suffered in dignity and humiliation as a result of being looked down upon by his batch mates, friends and relatives, has perhaps been suffi ciently met by the appellate judgment which has declared that his lower medical categorisation was unjustified and the petitioner continued to be Shape I without break from 1977.
[368E G] 3.2 The defence personnel have peculiar incidence of service.
Life 's course does not run smoothly for everyone.
Some relevant factors to be considered for award of compen sation are the duration of time for which the petitioner was subjected to various medical checks and hospitalisation, and the consequent suffering which he underwent, the loss of promotional prospects and the fact that he would now be obliged to request to be released from service prematurely.
A total compensation of RS.4 lakhs would meet the ends of justice.
The petitioner would not be entitled to any other claim on these heads, but he would be entitled to all other service benefits which an officer of the Lt. Colonel 's rank would be entitled to hold.
[378G H; 379A B] Major K.D. Gupta vs Union of India, and Lt. Col. K.D. Gupta, vs Union of India, ; referred to.
This Court directed that the amount of Rs.4 lakhs be paid to the petitioner within 2 months and the petitioner may be released from the defence service in accordance with any decision that might be taken on his request for such release.
[379C D] 372


judgement:
ivil Appeal No. 1443 of 1972.
From the Judgment and Order dated 30.11.1971 of the Allahabad High Court in Special Appeal No. 491 of 1963.
213 Uma Dutt for the Appellants.
Ms. Rachna Gupta for Bagga for the Respondents.
The Judgment of the Court was delivered by KANIA, J.
The appellants before us are the heirs and legal representatives of one Wali Mohammad.
Respondents Nos. 1 and 2 are the sons of one Ram Kumar.
Respondent No. 3 is the Board of Revenue, Allahabad.
On May 22, 1928 Wali Mohammad executed a usufructuary mortgage in favour of Ram Kumar and Shiv Kumar in respect of two plots.
According to Wali Mohammad, he redeemed the said mortgage and took possession of the said plots in the begin ning of Fasli Year 1354 (period from 1.7. 1946 to 30.6.1947) and continued to be in possession thereof.
On December 28, 1953 Ram Kumar moved an application under section 232 of the U.P., Zamindari Abolition and Land Reforms Act, 1950 (here inafter referred to as "the said Act"), for getting posses sion of the said two plots from Wali Mohammad On the ground that his name was recorded in the Khasra and Khatauni of 1356 Fasli and, therefore, he was the Adhivasi of the said plots.
This was contested by Wali Mohammad.
The Sub Divi sional Officer found that Wali Mohammad was in possession of the said plots since the redemption of the said mortgage and dismissed the suit of Ram Kumar.
That decision was confirmed by the Additional Commissioner on appeal holding that the entry in the Khasra relied on by Ram Kumar was fictitious.
On second appeal, the Board of Revenue set aside the deci sion of the Sub Divisional Officer and the Additional Com missioner and held that the entry in the Khasra to the effect that Ram Kumar was the occupant of the said plots in Khasra of Fasli Year 1356 was sufficient to confer Adhivasi rights on him and no further inquiry was called for to ascertain whether the said entry was correct or wrong.
Wali Mohammad filed a writ petition in the Allahabad High Court, challenging the aforesaid decision of the Board of Revenue.
The learned Single Judge of the High Court, after hearing the arguments in the said writ petition, allowed the same and quashed the order of the Board of Revenue on the ground that the Board of Revenue had committed an error of juris diction.
Ram Kumar preferred a Letters Patent Appeal against the said decision of the learned Single Judge.
The said appeal was allowed by a Division Bench of the said High Court.
The Division Bench set aside the order of the learned Single Judge, holding that the entry in the revenue records was enough to 214 confer rights of Adhivasi under section 20(b) of the said Act.
That decision is challenged before us in this appeal by Special Leave granted on the application of Wali Mohammad.
Wali Mohammad died during the pendency of the present appeal and his heirs and legal representatives have been brought on record in his place.
The relevant provision which falls for consideration is clause (i) of sub section (b) Of section 20 of the said Act.
The relevant part of section 20 runs as follows: "20.
Every person who (a) x x x x x (b) was recorded as occupant, (i) of any land other than grove land or land to which section 16 applies or land referred to in the proviso to sub section (3) of sec tion 27 of the U.P. Tenancy (Amendment) Act, 1947 in the Khasra or Khatauni of 1356 F. pre pared under sections 28 and 33 respectively of the U.P. Land Revenue Act, 1901 (U.P. Act III of 1901), or who was on the date immediately preceding the date of vesting entitled to retain possession thereof under clause (c) of sub section (1) of section 27 of the United Provinces Tenancy (Amendment) Act, 1947 (U.P. Act X of 1947), or (ii) x x x x x shall, unless he has become a bhumidhar of the land under sub section (2) of section 18 or an assami under clause (h) of section 21, be called Adhivasi of the land and shall, subject to the provisions of this Act, be entitled to take or retain possession thereof.
" The said section deals with the question as to who is entitled to take or retain possession of the land in ques tion.
The plain language of the aforesaid clause (i) of sub section (b) of section 20 of the said Act suggests that this question has to be determined on the basis of the entry in the Khasra or Khatauni of 1356 Fasli Year prepared under sections 28 and 33 respectively of the U.P. Land Revenue Act, 1901.
An analysis of the said section shows that under sub section (b) of section 20 the entry in the Khasra or Khatauni of the Fasli Year 1356 shall determine the question as to the person who is entitled to take or 215 retain possession of the land.
It is, of course, true that if the entry is fictitious or is found to have been made surreptitiously then it can have no legal effect as it can be regarded as no entry in law but merely because an entry is made incorrectly that would not lead to the conclusion that it ceases to be an entry.
It is possible that the said entry may be set aside in appropriate proceedings but once the entry is in existence in the Khasra or Khatauni of Fasli Year 1356, that would govern the question as to who is entitled to take or retain possession of the land to which the entry relates.
It was submitted by learned counsel for the appellants that if the entry was not correct, it could not be regarded as an entry made according to law at all and the right to take or retain possession of the land could not be deter mined on the basis of an incorrect entry.
He placed reliance on the decision of this Court in Bachan and another vs Kankar and others; , In that judgment the nature of the entries in Khasra or Khatauni is discussed and it is also discussed as to how this entry should be made.
This Court held that entries which are not genuine cannot confer Adhivasi rights.
It has been observed that an entry under section 20(b) of the said Act, in order to enable a person to obtain Adhivasi rights, must be an entry under the provisions of law and entries which are not genuine cannot confer Adhivasi rights.
In that judgment it has been stated that the High Court was wrong when it held that though the entry was incorrect, it could not be said to be fictitious.
That observation, however, has to be understood in the context of what follows, namely, that an entry which is incorrectly introduced into t, he records by reason of iII will or hostility is not only shorn of authenticity but also becomes utterly useless without any lawful basis.
This judgment, in our view, does not lay down that all incorrect entries are fictitious but only lays down that a wrong entry or incorrect entry which has been made by reason of iII will or hostility cannot confer any right under section 20(b) of the said Act.
This decision is clarified by a subsequent judgment of this Court in Vishwa Vijai Bharti vs Fakhrul Hasan and others, , where it has been held as follows: "It is true that the entries in the revenue record ought, generally, to be accepted at their face value and courts should not embark upon an appellate inquiry into their correct ness.
But the presumption of correctness can apply only to genuine, not forged or fraudu lent, entries.
The distinction may be fine but it is real.
The distinction is that one cannot challenge the correctness of what the entry in the 216 revenue record states but the entry is open to the attack that it was made fradulently or surreptitiously.
Fraud and forgery rob a document of all its legal effect and cannot found a claim to possessory title.
" Coming to the present case, although the Additional Commissioner has held that the entry was fictitious, that conclusion seems to have arrived at merely on the basis that Wali Mohammad was in possession in Fasli Year in question, with the result that the entry in the Khasra or Khatauni showing Ram Kumar as the occupant could not be correct.
There is nothing to show that the said entry was fictitious or was made fradulently or was incorrectly introduced by reason of iII will or hostility towards Wali Mohammad.
In these circumstances, the entry may not be correct but it could not be said to be fictitious or regarded as non est.
Merely because the entry might be incorrect, that would not make any difference to the determination of the question as to who is entitled to be declared to be the Adhivasi of the land under the provisions of section 20(b) of the said Act.
We agree with the conclusion and reasoning of the High Court.
In the result, the appeal fails and is dismissed with costs.
Y. Lal Appeal dis missed.

summary:
One Wali Mohammad (since deceased) executed on May 22, 1928 an usufructuary mortgage in favour of Ram Kumar and Shiv Kumar in respect of two plots.
According to Wali Moham mad he redeemed the said mortgage and took possession of the plots in the beginning of Fasli year 1354 (period from 1.7.1946 to 30.6.1947) and continued in possession thereof.
On 28th December 1953, Ram Kumar moved an application under Section 232 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 for obtaining possession of the two plots in question from Wali Mohammad on the ground that his name was recorded in the Khasra and Khatauni of 1356 Fasli and therefore he was the Adhivasi of the said plots.
Wali Moham mad contested the application before the Sub Divisional Officer.
The Sub Divisional Officer dismissed the suit finding that Wali Mohammad was in possession of the plots.
This decision was affirmed by the Addl.
Commissioner, who held that the entry in the Khasra relied on by Ram Kumar was a fictitious one.
On second appeal the Board of Revenue set aside the orders of the Sub Divisional Officer as also of the Addl.
Commissioner.
The Board held that the entry in the Khasra to the effect that Ram Kumar was the occupant of the two plots in Fasli year 1356 was sufficient to confer Adhiv asi rights.
Thereupon Wali Mohammad filed a Writ Petition in the High Court challenging the decision of the Board of Revenue.
The Single Judge who heard the Writ Petition al lowed the Writ Petition holding that the Board had committed an error of jurisdiction and consequently quashed the orders of the Board.
Ram Kumar preferred a Letter Patent appeal against the order of the Single Judge.
The Division Bench allowed the appeal and set aside the order passed by the Single Judge.
The Division Bench took the view that the entry in the revenue records was enough to confer rights of Adhivasi under Section 20(b) of the Act.
212 Being aggrieved by the said decision of the High Court the legal representatives of Wali Mohammad who has since died has filed this appeal, after obtaining Special Leave.
Dismissing the appeal, this Court, HELD: Section 20(b) of the Act deals with the question as to who is entitled to take or retain possession of the land in question.
The plain language of clause (1) of Sub Section (b) of Section 20 of the Act, suggests that this question has to be determined on the basis of the entry in the Khasra or Khatauni of the Fasli year 1356.
An analysis of the said section shows that Under sub section (b) of section 20, the entry in the Khasra of Khatauni of the Fasli year 1356 shall determine the question as to the person who is entitled to take or retain possession of the land.
If the entry is fictitious or is found to have been made surrepti tiously then it can have no legal effect as it can be re garded as no entry in law, but merely because the entry is made incorrectly that would not lead to the conclusion that it ceases to be an entry.
It is possible that the said entry may be set aside in appropriate proceedings.
[214G H; 215A] In the present case, although the Addl.
Commissioner has held that the entry was fictitious, the conclusion seems to have been arrived at merely on the basis that Wali Mohammad was in possession in Fasli year 1356, with the result that the entry in the Khasra or Khatauni showing Ram Kumar as the occupant could not be correct.
There is nothing to show that the said entry was fictitious or was made fraudulently or was in correctly introduced by reason of iII will or hostil ity towards Wali Mohammad.
In these circumstances, the entry may not be correct but it could not be said to be fictitious or regarded as non est.
Merely because the entry might be incorrect, that would not make any difference to the deter mination of the question as to who is entitled to be de clared to be the Adhivasi of the land under the provisions of Section 20(b) of the said Act.
[216B D] Bachan & Anr.
vs Kankar & Ors.
, ; and Vishwa Vijai Bharti vs Fakhrul Hasan & Ors., [1976] Suppl.
SCR 519, referred to


judgement:
tion (C) No. 9960 61 of 1985.
163 (Under Article 32 of the Constitution of India).
Gobind Mukhoty and S.K. Verma for the Petitioners.
Dr. Shankar Ghosh and Prabir Choudhary for the Respondents.
The Judgment of the Court was delivered by OZA, J.
This Writ Petition was filed challenging the action taken by the respondent the State Government of Assam under the Asom Rashtrabhasha Prachar Samiti (Taking over management and Control) Act 1984 (Assam Act No. XXIII of 1984) which was an Act enacted by the Legislative Assembly of Assam and received the assent by the Governor of Assam and published in the Assam Gazette Extraordinary dated 15.12.84.
It also challenged the orders contained in Notifi cation Nos.
EPG 57/84/25/A EPG 57/84/30 A and EPG 57/84/ 51 A dated 1.10.84, 10.11.84 and 19.3.85 respectively issued by the Education (Personal) Department of the Government of Assam.
According to the petitioner in 1929 Lahore Congress under the leadership of Mahatma Gandhi adopted a resolution for the spread of Hindi as the common language for the whole of India with a view to promote national integrity and in pursuance of this resolution institutions for the spread and prachar of Hindi in the non Hindi areas were established.
First of this kind was established in Madras City in the name of Dakshin Bharat Hindi Prachar Samiti then in Wardha for the development and spread of Hindi.
in the rest of India.
Late Baba Raghab Das a devoted disciple of Gandhiji undertook the task of spreading Hindi in the North Eastern part of India and in 1934 eminent local leaders of this region Late Tarun Ram Phukan, Late Nabin Chandra Bardaloi, Late Gopinath Bardaloi, Late Krishna Nath Sarma and others joined Baba Raghab Das and the first institution named Asom Hindi Prachar Samiti was formed on 3.11.38 at Gauhati with late Gopinath Bardaloi the first Chief Minister of Assam under the 1935 Act as its President.
In 1948 Asom Hindi Prachar Samiti was renamed as Assam Rashtrabhasha Prachar Samiti with its head Office at Gauhati.
It is this Assam Rashtrabhasha Prachar Samiti, the petitioner No. 1, which is a registered society under the with its registered office at Hedayatpur, Gauhati 3 District Kamrup.
The registration No. of the Samiti which is 18th of 1951 and according to the petitioner this Society has a membership of about 164 22,000 persons scattered all over the States and Union Territories of North Eastern part of India.
The Samiti has district committees under its control.
The Samiti also has two affiliated bodies namely Manipur Hindi Prachar Sabha, Imphal and the Asom Rashtrabhasha Sewak Sangh.
This Samiti has a sole constitution known as Bidhan which is also regis tered with the Registrar of Societies Assam at Gauhati.
This Samiti is a literary body and under Section 4 of the Bidban the objects of the Samiti have been stated thus: (a) To propogate and promote Hindi as a na tional language in Assam, Meghalaya, Mizoram, Nagaland, Manipur, Tripura and Arunachal Pradesh as provided in Article 351 of the Constitution of India.
(b) to promote efficient, educated, qualified workers of good character to hold out the Indian ideal before the future generations (c) to serve the State languages and litera tures together with the promotion of Hindi.
(d) to serve the tribal language and culture through the medium of Hindi language and to create kindness with the tribal brethren.
(e) to undertake a programme of literacy amongst the illiterate.
This Samiti according to the petitioners discharge its functions including the holding of examinations in Hindi in the State of Assam, Meghalaya and the Union Territory (as they were then) of Mizoram and also production and publica tion of prescribed text books in Hindi for Primary Schools, High School, Higher Secondary schools and the Colleges upto the degree standard.
The Samiti holds different examinations twice in a year in which about 60,000 candidates at the time of the filing of this petition on an average used to appear.
The successful candidates are issued certificates which are recognised by the Government of India and the Government of Assam and various All India Organisation.
The Samiti also imparts training and teaching in Hindi through a large number of Vidyalayas numbering about 400 and through Prama nita Pracharaks i.e. authorised propagators numbering about 5000 scattered all over in the North Eastern part of India.
It is also alleged that the Samiti from the very inception had acquired assets 165 and properties and the assets and properties at the time of the filing of the petition were stated to be: 1.
Buildings Rs.70,64,000.00 2.
Printing Press with Machines Rs.15,00,000.00 and accessories 3.
Furniture Fixture Rs. 3,00,000.00 4.
Two portraits Rs. 10,000.00 5.
Vehicle Rs. 35,000.00 6.
Typewriting Schools including Rs. 60,000.00 machines and furnitures 7.
Iron Safe Rs. 30,000.00 8.
Compound fixing (leasedias) Rs. 30,000.00 9.
Bank Deposits Rs. 3,43,000.00 10.
Security Deposit with Ashok Rs. 30,000.00 Paper Mill Ltd. 11.
Shares of Assam Coop apex Rs. 5,000.00 Bank Ltd. 12.
Stock of printing papers Rs. 50,000.00 and stationaries 13.
Stock of text books Rs.22,00,000.00 14.
articles including Rs.50,00,000.00 utensils 15.
Building Materials Rs.25,00,000.00 16.
Central Library Rs.10,00,000.00 17.
Value of the old books Rs. 3,00,000.00 TOTAL Rs. 124,42,000.00 According to the Bidhan of the Samiti the management and administration of the Samiti is run by elected bodies namely Byabasthapika Sabha (meaning the General Council) and the Karyapalika (meaning the Executive Committee), the term of each body is 5 years from the date of holding of their first meeting.
Accordingly the term of 166 the Byabasthapika Sabha was to expire on 9.8.87 (five years from the date of holding the first meeting) which was held on 10.8.82 and the term of Karyapalika was to expire on 18.8.87 (five years from the date of the first meeting which was 19.8.82).
That under Section 10 of the Bidhan the Karyapalika of the Samiti consisted of 17 members with the following of fice bearers: (i) Adhyakasha (President) (ii) Karyadhakshya (Working President) (iii) Upadhakshya (Vice President) (iv) Mantri (General Secretary) (v) Koshadhyaksha (Treasurer) (vi) Six members elected by the Byabasthapika Sabha (vii) The Education Secretary to the Government of Assam or a member nominated by him.
(viii) Five members of the Byabasthapika Sabha nominated by the Adhyaksha, and (ix) Pradhan Sachib (Chief Secretary) and other departmental secretaries of the Samiti.
According to the petitioner the first meeting of this last Byabasthapika Sabha was held on 10.8.82 wherein peti tioner No. 2 was elected unanimously as its Mantri (General Secretary) besides other office bearers.
According to the Bidhan of the Samiti as it stood in 1982, the Chief Minister of Assam was the Ex Officio Adhyaksha of the Samiti but as at the time of holding of the first meeting the State of Assam was under President 's rule, consequently the ' office of Adhyaksha of the Samiti remained vacant as then there was no Chief Minister of Assam.
Petitioner No. 2 and other office bearers of the Karyapalika of the Samiti held the first meeting of the Karyapalika on 19.8.82 and the Karyapa lika was running the day to day administration and was managing the affairs of the Samiti according to the Peti tioner very efficiently and diligently.
It is alleged that in early part of 1983 President 's rule was lifted from Assam and a Ministry headed by Shri Hiteswar Saikia was installed in power in Assam.
But in the meantime the Samiti in its meeting of the Byabasthapika Sabha held on 17.7.83 passed a resolution for 167 amendment of the provisions of the Bidhan in the following manner: "That the words contained in Section 16 at page 21 of the Bidhan to the effect that the Chief Minister of Assam shall be the Ex offi cio Adhyaksha of the Samiti be deleted.
All other such references contained in the Bidhan be also accordingly amended.
This amendment shall come into force from today the 17.7.83.
" That the said resolution was adopted in full compliance of Section 30 of the Bidhan and all members present in the meeting except one supported the resolution.
This resolution amending Section 16 of the Bidhan was passed considering the difficulties that arose in the working of the Samiti by keeping Chief Minister as the Adhyaksha of the Samiti.
According to the petitioner this amendment was sought neces sary to keep the Samiti away from politics.
According to the petitioner this amendment was introduced in accordance with Section 30 of the Constitution (Bidban) of the Samiti which provided: "The Constitution of the Samiti may be amended as follows: (Ka) The proposal for amendment must reach the head office within the month of January every year.
(Kha) The amendment proposals will be sent for information to all the members of the Byabas thapika Sabha from the Office.
(Ga) The amendment will be carried out by the 2/3rd members present." According to the petitioner the procedure stated in this Section of the Constitution was followed and as only one person opposed the Constitution amendment was passed.
It is further alleged by the petitioner that as this amendment was passed on 17.7.83 from this date the Chief Minister ceased to be the Ex officio President and since then according to the petitioner he had nothing to do with the Samiti.
The post of Ex officio President was abolished.
According to the petitioner that Respondent No. 4 after passing of this amendment of the Bidhan on political consid eration passed an order dated 7.7.84 contained in the noti fication No. CMS 202/79/319 168 dated 7.7.84 whereby respondent No. 4 purportedly to act as the Ex Officio Adhyaksha of the Samiti declared as a state of emergency in the Samiti in exercise of his powers con ferred under section 16 (Gha) of the Bidban and dissolved the existing Karyapalika of the Samiti with immediate effect and also constituted an ad hoc body with himself as Chairman and five others as members to manage the affairs of the Samiti.
The petitioner has also filed a copy of this order.
It is alleged by the petitioner that under this order peti tioners Nos. 1 and 2 were asked to hand over the charges of the management of the Samiti to the Ad hoc Committee.
There upon the petitioner filed a suit being a Title Suit No. 110 of 1984 in the Court of the Assistant District Judge No. 1, Gauhati for a declaration that the order dated 7.7.84 passed by Respondent No. 4 declaring a state of emergency and by which he dissolved the existing Karyapalika of the Samiti and constituted an Ad hoc Committee, as void, illegal and without jurisdiction and unenforceable against the petition er Society.
As on the day on which he passed the Order he was no longer the Adhyaksha as the Constitution has been amended before that day.
Petitioner also prayed for perma nent injunction restraining the respondent No. 4 and other members of the Ad hoc committee, their agents and servants from giving effect to the order.
The petitioners also filed an application under Order 39 Rule 1 and 2 of the Code of Civil Procedure for the issuance of a temporary injunction.
It is alleged that the Assistant District Judge No. 1, Gauhati by his order dated 19.7.84 issued a notice to the defendants of that suit to show cause as to why a temporary injunction as prayed for by the petitioners should not be granted and fixed 13.8.84 as the date for showing cause.
The defendants filed their objection on 21.8.84 and the case was fixed on 25.10.84 for consideration of the question of issuing a temporary injunction.
When the matter was pending in the Court for considera tion of the question of temporary injunction the Governor of Assam purported to act under Clause 1 of Article 230 of the Constitution of India promulgated an Ordinance called the Asom Rashtrabhasha Prachar Samiti (taking over of Management and Control) Ordinance, 1984 and Section 1 sub clause (ii) of this Ordinance provided that the Ordinance shall extend to all areas over which the Asom Rashtrabhasha Prachar Samiti had its jurisdiction immediately before the commence ment of the Ordinance by a Notification No. EPG 57/84/16 issued under the signatures of Respondent No. 3 the Governor of Assam fixed Ist of October, 1984 as the appointed day on which the aforesaid Ordinance 169 came into force and Section 3 of the said Ordinance provided that the Government may constitute a Board for the purposes of taking over the management and control of the Samiti consisting of not more than 9 members.
According to the petitioners this Ordinance was issued at the instance of the Chief Minister which was unnecessary, unwarranted and un called for and was against the law laid down by the Consti tution Bench of this Court.
Notification was issued on 7.7.84, Preamble of which reads as under: "Whereas the Chief Minister of Assam in his capacity as Ex officio Adhyakasha of the Asom R.B.P. Samiti is satisfied that deterioration of the financial condition of the Samiti has resulted in financial deadlock and the group rivalry among the members, confrontation between the management and the employees culminating in institution of law suits, hunger strikes by employees and chaos in administration matters have resulted in admin istration deadlock.
" The petitioners contended that what is stated in the Pream ble is incorrect and misconceived.
The financial condition of the Samiti had never deteriorated nor there were any adverse remark by any auditor in the regular auditing of the accounts of the Samiti.
It is alleged that even other facts leading to the taking over are wholly incorrect and mala cious.
Thereafter in 1984 Assam Legislative Assembly passed an Act i.e. Act No. XXIII of 1984 replacing the Ordinance and this Act received the assent of the Governor of Assam on 12.8.84 and was published in the Gazette Extraordinary dated 15.12.84.
Under Section 3 of this Act the Assam Rashtrabha sha Prachar Samiti (taking over of Management and Control) Act, 1984, the number of members constituting the Board was raised to 13.
By the provisions of this Act virtually the Samiti which was a public body constituted by its members having elected Byabasthapika Sabha and Karyapalika were substituted by Board appointed by the Government and all the functions, properties and affairs of the Samiti were taken over by this Board and it is this action taken under the Ordinance and the Act and ultimately the Act which is the subject matter of challenge in this Writ Petition.
As this infringes the fundamental rights of the members who consti tute the Samiti their rights under Article 19(1)(c) and by this process of taking over the Samiti has been deprived of its assets and properties and even as alleged by the peti tioners Government has gone to the 170 extent of changing the name of the institution also.
It is alleged that after the passing of this Act the notification under section 3 was issued which was EPG 57/34/75 dated 1.10.84 by which the Rashtrabhasha Prachar Board was consti tuted with respondents 11, 12 and 13 as members and by this order all persons except respondent No. 12 who was not even the member of the Rashtrabhasha Prachar Samiti were nominat ed.
The petitioners also alleged that in fact all this happened because when the then Chief Minister of Assam learnt about the amendment of the Constitution carried out by Byabasthapika Sabha learnt that under the unamended Bidhan was the Ex officio Adhyaksha has been dropped by the amendment of the Constitution that with mala fide intention he started taking action in a manner in which he could retain the control of the institution.
First,he invoked the Constitution itself by superseding the body by invoking emergency provisions but when that was challenged by a suit, an ordinance was brought taking over the Samiti as a whole specially replacing the Byabasthapika Sabha and the Karyapa lika and later the ordinance was replaced by the Act and it was contended that this all was the mala fide action of the then Chief Minister of Assam and it is further contended that unfortunately even after the new elections and a new Government comes in power in Assam the Act which as its title discloses was a temporary measure was continued at perpetuity, and the Samiti is being run by nominated members and the rights of the members of the Samiti under Article 19 has not only been restricted but has been taken away.
It was also contended that the history of the Samiti and the manner in which it was formed and the persons who initially consti tuted the Samiti is of significance because its history and historical background touches the ideological and sentimen tal aspirations of the people of Assam and the infringement of this right to form an association under Article 19(1)(c) is challenged as mala fide action motivated with selfish political motivation.
It is also contended that by the operation of this Act those who have nothing to do with the Samiti or its ideals and who were not even the members of the Samiti have been nominated as the members of the Board and they are supposed to run the affairs of the Samiti whereas those who have contributed their heart and soul for the ideals of the Samiti and who have put in long years of hard labour to build up are deprived of their right to manage the affairs of the Samiti.
It is also contended that even the assets and the properties of the Rashtrabhasha Prachar Samiti is being mismanaged by nominated board as it has no moral attachment to the ideals nor aptitude with the work of the Samiti and the assets are being neutralized.
171 It was also contended that the heading of the Act as it disclosed "An Act to provide for temporary transfer of the management and control of the affairs of A.R.B.P.S. from the Byabasthapika Sabha, Karyapalika and other holders of office of the Assam Rashtrabhasha Prachar Samiti to a Board".
This heading of the Act, according to the learned counsel, is just an eye wash as this heading shows that a temporary arrangement was made because the management of the Samiti was not in proper hands and the temporary arrangement was only to improve the functioning of the society and ultimate ly it has to be handed over back to the elected body consti tuted under the Bidhan (constitution of the society regis tered under the ) but in fact after the passing of this Act in 1984 till today the re spondent State had no point of time, even thought of restor ing the body to the normal functioning after holding elec tion in accordance with the constitution of the Society.
In fact even during the hearing of this Writ Petition the counsel appearing for the State was asked to intimate the Court if even now the State knowing that this was a tempo rary measure is intending to restore the society back with elected functionaries under the constitution.
It was indi cated that the Government of Assam has no intentions even now to end this temporary arrangement of the Samiti.
It is plain that although the Act talks of a temporary measure but it is only an eye wash and by this process the State Govern ment intends to deprive the members of the society their rights under Article 19(1)(c) for all times to come.
In the Act there is no provision providing for restoration of the elected bodies which shows that the use of phrase 'tempo rary ' was just an eye wash.
Learned counsel appearing for the State attempted to justify the action however denying that it was not because the constitution was amended and therefore the Chief Minis ter was annoyed but attempted to suggest that there was some mismanagement of the society but in any event there was no logic which could be suggested for such a permanent taking over of the society registered discharging functions which could not be said to be not ideal and which had started working on some ideals which could not be said 'not for public good '.
It is clear that now as the Act of 1984 and a Board nominated or appointed under Section 3 of the Act is con trolling the affairs of the Society it is not necessary to go into the orders passed by the Chief Minister invoking the emergency powers although the facts which were alleged clearly go to show that except that constitution was amended and the Chief Minister was dropped from the place which he used to enjoy before the amendment of the Bidhan (Constitu tion).
There was 172 nothing serious and the Chief Minister who in fact had ceased to be an Adhyaksha because of the constitutional amendment took that action only to stick to the position and the subsequent acts even if mala fide action is not clearly established, as was alleged, we have no hesitation in ob serving that there appears to be no .justification as it is clear that if the Act was enacted to meet a temporary con tingency for taking over of the management temporarily it could have provided for the restoration of the elected body in due course.
It is significant that this Act is silent and although as quoted above it talks of being temporary act, it continues and even as stated above there appears to be no intention of the State Government to restore the body back to the elected bodies under the constitution of the society itself.
In these circumstances therefore there appears to be no justification for all these actions starting from invok ing the emergency provisions till enacting the present Act i.e. Asom Rashtrabhasha Prachar Samiti (taking over of the Management and Control) Act, 1984.
Except the allegations of mala fide which are not admit ted, rest of the facts are not in dispute.
The only sugges tion made in the counter is that there was mismanagement, delay in examinations and results and it was because of that that management only under this Act was taken over.
But neither in the counter nor during the course of arguments anything could be said on behalf of the State for a perma nent justification of taking over of the management of the Samiti depriving its members the right under Article 19(1)(c) of the Constitution of India.
In the counter it was contended that the Legislature of the State was competent under Entry 25 of the List Ill (concurrent list) Schedule 7 of the Constitution to enact this law.
Entry 25 List III reads: "25.
Education, including technical education, medical education and universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I; vocational and technical training of labour." The mere perusal of Entry 25 will reveal as to how difficult it will be to stretch Entry 25 to mean the authority to deprive an association of its right under Article 19(1)(c) of the Constitution of India.
It would have been different situation, if the state felt that it wanted to do the same thing what this Samiti was doing and further the acts of education and for that purpose if it had taken steps to start similar functions at the 173 state level probably the things would have been different.
But here we are simply concerned with the taking over of the management of a registered society having large membership and assets and properties following programme and policies living to the ideals which could not be in any way chal lenged or adversely commented.
Article 19(1)(c) of the Constitution provides: "19.
Protection of certain rights regarding freedom of speech, etc. (1) All citizens shall have the right (a) xx xx xx (b) xx xx xx (c) to form associations or unions; (d) xx xx xx (e) xx xx xx (f) xx xx xx (g) xx xx xx" The Constitution Bench of this Court had an occasion to consider exactly a similar situation when a Hindi Sahitya Sammelan was taken over first by a State law and later by an Act of Parliament and this Court considering the question in Damyanti Naranga vs The Union of India and Others, ; , observed: "Further, under Section 7(2) of the Act, the Governing Body of the new Sammelan is to consist of such number of persons, not exceed ing 55, as the Central Government may from time to time determine; and out of these, a number not exceeding 7 are to be nominated by the Central Government from among education ists of repute and eminent Hindi scholars.
These 7 nominees are to be chosen by the Central Government.
" In the present case the Government has taken the power under Section 3 to appoint a Board and the Government can appoint any one not connected with the Society at all to be in the Board.
In the Act which was being examined by the Constitution Bench there were some restrictions on the nominations of persons although the persons were to be nominated by the Central Government but in the present Act it is left to the discretion of the Government to appoint the whole of the Board which will take place of not only 'the Managing Committee i.e. the Karyapalika but also the place of Byabasthapika Sabha which normally used to be an elected body.
In this view the observation of 174 the Constitution Bench in Damyanti Naranga 's case goes a long way.
It is observed in this judgment: "This is clear interference with the right to form an association which had been exercised by the members of the Society by informing the Society with its Constitution, under which they were members and future members could only come in as a result of their choice by being elected by their working Committee.
" It is therefore clear that so far as the present case is concerned it is not only that the new members are intro duced, not only that the complete control is left to the Board to be nominated by the Government, about the persons no norms have been laid down, the person so nominated could be anyone and no control is kept to those who formed the Society, those who had a right to form an association will be kept away and the Society shall be run by group of per sons nominated by the Government in accordance with Section 3.
It is therefore clear that what was done in the Sammelan Acts which were under examination in the Constitution Bench judgment referred to above, much more has been done in this case.
In this case virtually the right of association has been taken away and not only that it is a sort of depriva tion for all times as it is not even provided that this Board may be an interim Board and thereafter a proper Board will be elected but here this Board will continue to control and manage the affairs of the Society.
In the Constitution Bench case their Lordships considered the scope of Article 19(1)(c) in the context of what was contemplated in that Act and observed: "The right to form an association, in our opinion, necessarily implies that the persons forming the Association have also the right to continue to be associated with only those whom they voluntarily admit in the Association.
Any law, by which members are introduced in the voluntary Association without any option being given to the members to keep them out, or any law which takes away the membership of those who have voluntarily joined it, will be a law violating the right to form an association.
If we were to accept the submission that the right guaranteed by article 19(1)(c) is confined to the initial stage of forming an Association and does not protect the right to continue the Association with the membership either chosen by the founders or regulated by rules made by the Association 175 itself, the right would be meaningless be cause, as soon as an Association is formed, a law may be passed interfering with its compo sition, so that the Association formed may not be able to function at all.
The right can be effective only if it is held to include within it the right to continue the Association with its composition as voluntarily agreed upon by the persons forming the association.
" It is therefore clear that even on the basis of the pro nouncement of the Constitution Bench, the Act and the noti fication issued under this Act taking over the management of the Rashtrabhasha Prachar Samiti could not be accepted to be in accordance with the Constitution.
Apart from this it is also clear that although when the Act talks of a temporary measure in fact, the Act does not provide for as to how when the temporary measures comes to an end the elected Byabasthapika Sabha and Karyapalika would be restored.
It is not only that but it is also apparent that since 1984 when this Act was passed and a notification appointing a Board was issued, the Government has not chosen to take any steps to restore the Society back to its elected authorities and office bearers, inspite of the fact that we indicated and asked the counsel appearing for the State to let us know even if now the State is intending to restore it back to the Society but unfortunately it appears that with out considering the question and its constitutional aspects the reply came that the State has no desire to restore the Samiti and therefore we are left with no option but to decide and decide upholding the Constitution and the right of association conferred under Article 19(1)(c) of the Constitution.
We therefore allow these writ petitions, set aside the notification issued under the Act enacted by the Assam Legislature holding that the Act itself is ultra vires of the Constitution.
We therefore also quash the notifica tion issued under Section 3 of the Act as ultra vires by which a Board was nominated to replace the Karyapalika and Byabasthapika Sabha.
At the time when this Board was constituted under Sec tion 3 the Karyapalika and Byabasthapika Sabha duly elected were functioning and they had sufficient time to go on and in this view of the matter we further direct that the Karya palika and Byabasthapika Sabha which were in existence in 1984 when initially the action under the emergency provi sions was taken followed by the notification under the Ordinance and the Act shall be restored back and they shall take over the management of the Samiti from the Board imme diately but it is made clear that the Karyapalika and Bya basthapika Sabha which were 176 functioning in 1984 and which we are restoring will within six months from the date of this Order will hold proper elections in accordance with the Constitution to elect a Byabasthapika and Karyapalika.
This is necessary because the period of the Karyapalika and Byabasthapika Sabha which was functioning in 1984 has come to an end although from 1984 till today they were not allowed to function.
It is further directed that the authorities, officers appointed by the Board or the State Government shall restore back all assets and properties of the Samiti to the Karyapalika which will be restored immediately after the passing of this Order.
The petitioners shall also be entitled to costs of this peti tion.
Costs quantified at Rs. 10,000.
R.N.J. Petition allowed.

summary:
For the spread of Hindi in North Eastern part of India an institution named Asom Hindi Prachar Samiti was formed on 3.11.38 at Gauhati.
In 1948 this Samiti was renamed as Assam Rashtrabhasha Prachar Samiti.
The Petitioner No. 1 herein is a registered body which claims to have a membership of about 22000 persons scattered all over the North Eastern part of India.
This Samity has a sole constitution known as Bidhan which is also a duly registered body.
The Samiti holds different examinations in Hindi twice a year, publishes text books in Hindi for Primary Schools, High Schools, Higher Secondary Schools and Colleges upto the degree standard.
Certificates issued by the Samity are recognised by the Government of India, the Government of Assam and various other organisations.
The Samiti also imparts training and teaching in Hindi through a number of Vidyalayas and Prama nita Pracharaks.
The assets and properties of the Samiti at the time of filing this Petition are stated to be worth Rs. 1,24,42,000.00.
According to the Bidhart, the management and administra tion of the Samiti is run by elected bodies namely Byabas thapika Sabha and Karyapalika, each having 5 years term from the date of holding of its first meeting.
The Karyapalika consisted of 17 members.
The Chief Minister of Assam was the Ex officio Adhyaksa of the Samiti but at the time of holding of the first meeting, the State of Assam was under Presi dent 's rule and consequently the office of Adhyaksha re mained vacant.
Petitioner No. 2 was unanimously elected Mantri.
Petitioner No. 2 and other office bearers of the Karyapalika held the first meeting on 19.8.1982 and the Karyapalika was running and managing the day 161 to day affairs of the Samiti efficiently and diligently.
The Samiti in its meeting held on 17.7.83 passed a resolution amending the Bidhan deleting the provision that the Chief Minister of Assam shall be the ex officio Adhyak sha of the Samiti.
This resolution was adopted in full compliance of Section 30 of the Bidhan and all members present in the meeting except one supported the resolution.
After the passing of this amendment, the Respondent No. 4 as alleged by the petitioners, passed an order dated 7.7.84 on political considerations purportedly to act as the Ex offi cio Adhyaksha of the Samiti declared a state of emergency in the Samiti in exercise of the powers conferred under section 16(Gha) of the Bidhan, dissolved the existing Karyapalika and constituted an ad hoc body with himself as Chairman and five others as members to manage the affairs of the Samiti and asked the Petitioners to hand over the charge of the Samiti to this Ad hoc committee.
Thereupon, the petitioners filed a suit for a declaration that the order dated 7.7.84 passed by Respondent No. 4 was void, illegal, without juris diction and unenforceable against the petitioner society.
The Petitioners also prayed for a permanent injunction restraining the respondents from giving effect to the order and also moved an application for issuance of a temporary injunction upon which a show cause notice was issued to the defendants who filed their objections.
While the matter was pending consideration of the question of issuing of a tempo rary injunction the Governor of Assam purporting to act under clause I of Article 230 of the Constitution of India promulgated an ordinance called the Asom Rashtrabhasha Prachar Samiti (taking over of management and control) Ordinance, 1984.
In due course the Ordinance was replaced by an Act passed by the Assam Legislative Assembly.
Under the Ordinance and the Act virtually the Samity which was a public body was substituted by a Board appointed by the Government and all the functions, properties and affairs of the Samiti were taken over by the Board.
It is this action taken under the Ordinance and ultimately the Act which is the subject matter of challenge in this Writ Petition.
It is contended that although the Act as its title discloses, was a temporary measure, was continued at perpetuity and the Samiti is being run by nominated members and the rights of the members of the Samiti under Article 19 of the Constitu tion of India have not only been restricted but taken away.
Even during the hearing it was indicated that the Government of Assam has no intention to end the temporary arrangement of the Samiti and by this process the State Government intends to deprive the members of the society their rights under Article 19(1)(C) for all times to 162 come.
In the Act there is no provision providing for resto ration of the elected bodies which shows that the use of phrase 'temporary ' was just an eye wash.
Accepting the contentions of the Petitioners, this Court while allowing the Writ Petition.
HELD: As the Act of 1984 and the Board nominated or appointed under Section 3 of the Act is controlling the affairs of the Society it is not necessary to go into the orders passed by the Chief Minister invoking the emergency powers although the facts alleged clearly go to show that except that the Constitution (Bidhan) was amended and the Chief Minister was dropped from the place which he used to enjoy before the amendment of the Bidhan, there was nothing serious justifying all these actions starting from invoking the emergency provisions till enacting the present Act.
[171G H; 172A] It is also apparent that since 1984 when this Act was passed and a notification appointing a Board was issued, the Government has not chosen to take any steps to restore the Society back to its elected authorities and office bearers and nor does it intend to do so even now.
Thus this Court is left with no option but to decide and decide upholding the Constitution and the right of association conferred under Article 19(1)(C) of the Constitution.
[175D E] The Complete Control has been taken away from the Peti tioner Society and is given to Board nominated by the Gov ernment.
The Board is not as an interim measure.
But will continue to control and manage the affairs of the society.
This amounts to taking away the fundamental right of the Petitioner Society to form an Association guaranteed under Article 19(1)(C) of the Constitution of India.
[170E] The Notification under the Act enacted by the Assam Legislature is set aside holding that the Act itself is ultra vires of the Constitution.
The Notification issued under Section 3 of the Act by which a Board was nominated to replace the Karyapalika and Byabasthapika Sabha is also quashed.
[175E] Damyanti Narang vs The Union of India and others, , referred to.