judgement:
ivil Appeal No. 1750 of 1974.
642 From the Judgment and Order dated 7.3.74 of the Gauhati High Court in C.R. No. 96 of 1973.
A.R. Barthakur, J.D. Jainand Mrs. Kawaljit Kocher for the Appellant.
P.H. Parekh, Ms. Geetanjali Mathrari, Shishir Sharma for the Respondents.
The Judgment of the Court was delivered by OZA, J.
This appeal on leave has been filed against the judgment of the Gauhati High Court delivered in Civil Revi sion No. 96 of 1973 decided on March 7, 1974.
The short question that arises in this appeal is in respect of the jurisdiction of the civil court to entertain a suit that was filed against the respondent defendant.
The appellant plain tiff was an employee of M/s Empire of India and Ceylone Tea CO.
Pvt. Ltd Calcutta.
The Manager of the COmpany who wag defendant No. 2, on 16.10.1971 served a notice on the appel lant plaintiff asking him to explain certain charges of misconduct.
In the course of domestic enquiry held by the management, the appellant plaintiff was ultimately dismissed from service on 28th November, 1971.
According to the appel lant plaintiff the order of dismissal is contrary to provi sions of the Standing Orders framed under Industrial Employ ment (Standing Orders), Act, 1946 and on this ground he sought the relief of declaration that the dismissal is null and void and inoperative as he was not guilty of any miscon duct as no enquiry was conducted, the dismissal was bad in accordance with the Standing Orders.
He also sought the relief of back wages and injunction not to give effect to the order of dismissal.
This suit was filed by the appellant plaintiff before the Court of Munsiff.
The defendant re spondent in their written statement raised the plea that the suit is not maintainable as the relief which is sought is available to the appellant plaintiff under Section 2A of the .
It was also pleaded that the suit is not maintainable under Section 14(1)(b) of the Specific Relief Act and that the Civil Court has no juris diction to entertain the suit.
The trial Court on the basis of these pleadings framed two preliminary issues which were: (i) Whether the suit is maintainable in the present form? (ii) Whether this Court has jurisdiction to try the suit? The trial court came to the conclusion that the Civil Court has the 643 jurisdiction to try the suit and the suit is not barred because of Section 14(1)(b) of the Specific Relief Act.
Against this order of the trial court a revision petition was taken to the High Court and by the impugned judgment the High Court held that the nature of relief which was sought by the appellant plaintiff was such which could only be granted under the and therefore the civil court had no jurisdiction to try the suit.
Learned counsel for the appellant on the basis of lan guage of Section 9 of the Code of Civil Procedure contended that the civil court will have jurisdiction to try all kind of suits except those which are either expressly or implied ly barred and on this basis it was contended that there is no express bar on the jurisdiction of the Civil Court and the High Court was not right in reaching the conclusion that it was impliedly barred whereas learned counsel for the respondent contended that the relief which was sought by the appellant plaintiff in substance was the relief of rein statement with back wages which relief is not the right of the appellant plaintiff under the contract or under the civil law.
This right is only conferred on him because of the and the relief which is avail able only in the .
The Act itself provides the procedure and remedy and it is not open to the appellant to approach the Civil Court for getting the relief which he could only get under the scheme of the procedure of conciliation, reference to the labour court and ultimately decision of the labour court.
It was in the scheme of the itself that the enforcement of the Standing Orders could be made and an order which is not in accordance with the Standing Orders could be set aside and the relief as was claimed by the appellant plaintiff could be granted.
It is in this view that the jurisdiction of the civil court is impliedly barred.
Learned counsel placed reliance on the decision of this Court in Bombay Union of Journalists & Ors.
vs The State of Bombay & Anr., ; Section 9 of the Code of Civil Procedure reads: "Courts to try all civil suits unless barred The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.
Explanation (1) A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the 644 decision of questions as to religious rites or ceremonies.
Explanation II For the purposes of this Section it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place.
" It is clear that wherever the jurisdiction of the civil court is expressly or impliedly barred, the civil court will have no jurisdiction.
It could not be disputed that a con tract of employment for personal service could not be spe cifically enforced and it is also clear that except the industrial law, under the law of contract and the civil law, an employee whose services are terminated could not seek the relief of reinstatement or backwages At best he could seek the relief of damages for breach of contract.
The manner in which the relief has been framed by the appellant plaintiff in this case, although he seeks a declaration and injunction but in substance it is nothing but the relief of reinstate ment and backwages.
The relief which could only be available to a workman under the .
It is not disputed before us that the Industrial Dis putes Act was applicable to the present case and it is also not disputed that the Industrial Employment (Standing Or ders) Act was also applicable.
It is also not in dispute that the enquiry for misconduct was conducted against the appellant in accordance with the Standing Orders and the main plea which was raised by the appellant plaintiff was that the enquiry was not strictly in accordance with the Standing Orders.
It is in this context that the learned Judge of the High Court came to the conclusion that the civil court will have no jurisdiction to try the present suit.
Learned counsel appearing for the appellant plaintiff mainly contended that in the scheme of the Industrial Dis putes Act, the starting point for an industrial dispute is the conciliation proceedings and if the conciliation pro ceedings fail then the conciliation officer is expected to submit his report to the Govt.
as contemplated under Section 12 and thereafter it is the discretion of the Govt to make a reference to the labour court.
He frankly conceded that if a reference is made then the labour court will have juris diction to determine the dispute as was raised by the appel lant before the civil court but according to the learned counsel as firstly it is the discretion of the conciliation officer to proceed with the conciliation proceedings and even after the report of the conciliation officer, it is the discretion of 645 the State Govt.
to make a reference or not.
Thus it could not be said that there is a remedy available to the appel lant under the scheme of the and thus the jurisdiction of the civil court could not be barred by implication.
Learned counsel placed reliance on the decision in Calcutta Electric Supply Corporation Ltd. and another vs Ramratan Mahato, AIR 1973 Calcutta 258.
Learned counsel for the appellant also contended that the decision in Dhulabhai etc.
vs State of Madhya Pradesh and another; , also helps him to some extent.
On the other hand the learned counsel for the respondent contended that in view of decision in Bombay Union of Journalists case the discretion of the Govt.
to make a reference or not is not arbitrary and in appropriate cases if the Govt.
chooses not to make a reference, a direction could be issued under Article 226 by the High Courts.
It was contended that after this decision of this Court, the contention that remedy under the is merely discretionary is not at all available to the appellant.
Learned counsel also placed reliance on the Dhulabhai 's case and Nanoo Asan Madhavan vs State of Kerala and others, [1970] Vol.
I LLJ Kerala 272.
It is not in dispute that the dispute which was raised by the appellant plaintiff fell within the ambit of the definition of 'industrial dispute ' as defined in Section 2(k) of the .
It is also no in dis pute that the dispute can be taken up by conciliation offi cer under Section 12.
Section 12 of the provides that when the conciliation officer fails he has to make a report as provided in sub clause (4) of Section 12.
Section 12 reads: "Duties 01 ' Conciliation Officers (1) Where any industrial dispute exists or is apprehend ed, the conciliation officer may, or where the dispute relates to a public utility service and a notice under Section 22 has been given, shall, hold conciliation proceedings in the prescribed manner.
(2) The conciliation officer shall, for the purpose of bringing about a settlement of the dispute, without delay, investigate the dispute and all matters affecting the merits and the right settlement thereof and may do all such things as he thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute.
(3) If a settlement of the dispute or any of the matters in dispute is arrived at in the course of the conciliation proceedings the conciliation officer shall send 646 a report thereof to the appropriate Government (or an officer authorised in this behalf by the appropriate Government) together with a memorandum of the settlement signed by the parties to the dispute.
(4) If no such settlement is arrived at, the conciliation officer shall, as soon as practicable after the close of the investiga tion, send to the appropriate Government a full report setting forth the steps taken by him for ascertaining the facts and circum stances relating to the dispute and for bring ing about a settlement thereof, together with a full statement of such facts and circum stances, and the reasons on account of which, in his opinion, a settlement could not be arrived at.
(5) If, on a consideration 1 of the report referred to in sub section (4), the appropriate Government is satisfied that there is a case for reference to a Board (Labour Court, Tribunal or National Tribunal), it may make such reference.
Where the appropriate Government does not make such a reference it shall record and communicate to the parties concerned its reasons therefore.
(6) A report under this Section shall be submitted within fourteen days of the commencement of the conciliation proceedings or within such shorter period as may be fixed by the appropriate Government.
Provided that subject to the approv al of the conciliation officer, the time for the submission of the report may be extended by such period as may be agreed upon m writing by all the parties to the dispute.
" Sub clause (5) provides for making a reference by the State Govt.
to a labour court or an appropriate Tribunal.
In Bombay Union of Journalists case it has been held that the discretion of the Government is a discretion which has been exercised not arbitrarily and therefore it could not be said that the reference to the labour court or tribunal is not available to a worker who raises in industrial dispute.
It was observed.
"This argument must be rejected, because when the appropriate Government considers the question as to 647 whether a reference should be made under section 12(5), it has to act under section 10(1) of the Act and section 10(1) confers discretion on the appro priate Government either to refer the dispute, or not to refer it, for industrial adjudica tion according as it is of the opinion that it is expedient to do so or not.
In other words, in dealing with an industrial dispute in respect of which a failure report has been submitted under section 12(4) the appropriate Government ultimately exercises its power under 'section 10(1), subject to this that section 12(5) imposes an obligation on it to record reasons for not making the reference when the dispute has gone through conciliation and a failure report has been made under section 12(4).
This question has been considered by this Court in the case of the State of Bombay vs K.P. Krish nan & Others, The decision in that case clearly shows that when the appropriate Government considers the question as to whether any industrial dispute should be referred for adjudication or not, it may consider, prima facie, the merits of the dispute and take into account other relevant considerations which would help it to decide whether making a reference would be expedient or not.
It is true that if the dispute in question raise questions of law, the appropri ate Government should not purport to reach a final decision on the said questions of law, because that would normally lie within the jurisdiction of the Industrial Tribunal.
Similarly, on disputed questions of fact, the appropriate Government cannot purport to reach final conclusions, for that again would be the province of the Industrial Tribunal.
But it would not be possible to accept the plea that the appropriate Government is precluded from considering even prima facie the merits of the dispute when it decides the question as to whether its power to make a reference should be exercised under section 10(1) read with section 12(5) or not.
If the claim made is patently frivo lous, or is clearly belated, the appropriate Government may refuse to make a reference.
Likewise, if the impact of the claim on the general relations between the employer and the employees in the region is likely to be ad verse, the appropriate Government may take that into account in deciding whether a refer ence should be made or not.
It must therefore be held that a prima facie examination of the merits cannot be said to be foreign to the enquiry which the appropriate Government is entitled to make in dealing with a dispute under section 10(1), and so, the argument that the 648 appropriate Government exceeded its jurisdic tion in expressing its prima facie view on the nature of the termination of service of appel lants 2 and 3, cannot be accepted.
" It is therefore clear that that in view of language of Section 10 read with Section 12(5) as has been held by this Court an adequate remedy is available to the appellant plaintiff under the scheme of the itself which is the Act which provides for the relief of reinstatement and back wages which in fact the appellant sought before the civil court by filing a suit.
Section 10 of the reads: "Reference of disputes to Boards, Courts or Tribunals (1) Where the appropriate Govern ment is of the opinion that any industrial dispute exists or is apprehended, it may at any time, by order in writing (a) refer the dispute to a Board for promoting a settlement thereof; or (b) refer any matter appearing to be connected with or relevant to the dispute to a Court for inquiry; or (c) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, if it relates to any matter specified in the Second Schedule, to a Labour Court for adjudication; or (d) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a Tribunal for adjudica tion: Provided that where the dispute relates to any matter specified in the Third Schedule and is not likely to affect more than one hundred workmen, the appropriate Gov ernment may, if it so thinks fit, make the reference to a Labour Court under clause (c); Provided further that where the dispute relates to a public utility service and a notice under Section 22 has been given, the appropriate Government shall, unless it con 649 siders that the notice has been frivolously or vexatiously given or that it would be inexpe dient so to do, make a reference under this sub section notwithstanding that any other proceedings under this Act in respect of the dispute may have commenced: Provided also that where the dispute in relation to which the Central Government is the appropriate Government, it shall be compe tent for that Government to refer the dispute to a Labour Court or an Industrial Tribunal, as the case may be, constituted by the State Government.
" It is therefore clear that this Act i.e. not only confers the right on a worker for reinstatement and backwages if the order of termination or dismissal is not in accordance with the Standing Orders but also provides a detailed procedure and machinery for getting this relief.
Under these circumstances therefore there is an apparent implied exclusion of the jurisdiction of the civil court.
In Dhulabhai 's case a five Judges Bench of this Court consid ered the language of Section 9 and the scope thereof in respect of exclusion of jurisdiction and it was observed: "Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the in quiry may be decisive.
In the latter case, it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be deter mined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not.
" It is therefore clear that the scheme of the clearly excludes the jurisdiction of the civil court by implication in respect of remedies which are avail able under this Act and for which a complete procedure and machinery has been provided in this Act.
Under these circumstances therefore so far as the present suit filed by the appellant plaintiff is concerned, there appears to be no doubt that civil court had no juris diction and the High Court was fight in coming to the con clusion.
The appeal is therefore dismissed but as it is an appeal filed by an employee who lost his employment long ago, parties are directed to bear their own costs.
R.S.S. Appeal dis missed.

summary:
The appellant plaintiff, who was an employee of the respondent company, was dismissed from service on the bais of a domestic enquiry held against him in respect of certain charges of misconduct.
Thereupon, he filed a civil suit before the Court of Munsiff and sought the relief of back wages and injunction not to give effect to the order of dismissal The respondents in their written statement raised inter alia the plea that the suit was not maintainable as the relief sought was available to the plaintiff under section 2A of the .
The Trial Court came to the conclusion that the Civil Court had the jurisdiction to try the suit.
The High Court, in revision, held that the nature of the relief which was sought by the appellant plaintiff was such which could only be granted under the , and therefore the civil court had no jurisdiction to try the suit.
Before this Court it was contended on behalf of the appellant (i) on the basis of the language of section 9 of the Code of Civil Procedure the civil court had jurisdiction to try all kinds of suits except those which were either expressly or impliedly barred, and the High Court was not right in reaching the conclusion that it was impliedly barred; (ii) as the remedy under the was discretionary, it could not he said that there was a remedy available to the appellant under the scheme of the Act and thus the jurisdiction of the civil court could not be barred by implication.
On the other hand, it was contend ed on behalf of the respondents that (i) the relief sought by the appellant in substance was the relief of reinstate ment with backwages which relief was available only in the ; (ii) the Act itself provided the procedure and remedy and it was not open to the appellant to approach the civil court for getting the relief which he could get only under the scheme of the Act; and (iii) the discretion of the Government to make a reference or not was not arbitrary.
Dismissing the appeal, this Court.
641 HELD: (1) It is clear that wherever the jurisdiction of the civil court was expressly or impliedly barred, the civil court will have no jurisdiction.
[644B] (2) It is clear that except under the industrial law, under the law of contract and the civil law, an employee whose services are terminated could not seek the relief of reinstatement or backwages.
At best, he could seek the relief of damages for breach of contract.
(3) The manner in which the relief has been framed by the appellant in this case, although he seeks a declaration and injunction but in substance it is nothing but the relief of reinstatement and backwages.
This relief could only be available to a workman under the .
[644C D] (4) The discretion of the State Government for making a reference under section 12(5) of the is not arbitrary and it would not be said that the reference to the labour court or tribunal is not available to a worker who raises an industrial dispute.
[646G] Bombay Union of Journalists & Ors.
vs The State of Bombay & Anr., ; ; Calcutta Electric Supply Corporation Ltd. vs Ramratan Mahato, AIR 1973 Cal 258; Dhulabhai etc.
vs State of Madhya Pradesh; , ; Nanoo Asan Madhavan vs State of Kerala, [1970] Vol.
I LLJ Kerala 272, referred to.
(5) In view of the language of section 10, read with section 12(5) of the , an adequate remedy was available to the appellant under the scheme of the itself which is the Act which provides for the relief of reinstatement and backwages which in fact the appellant sought before the civil court by filing a suit.
[648B] (6) The scheme of the clearly excludes the jurisdiction of the civil court by implication in respect of remedies which are available under the Indus trial Disputes Act and for which a complete procedure and machinery has been provided in this Act.
[649F G]


judgement:
ivil Appeal No. 2941 of 1982.
From the Judgment and Order dated 26.2.82 of the Punjab Haryana High Court in L.P.A. No. 1120 of 1981.
P.A. Choudhary, Mrs. K. Sarada Devi and B. Kanta Rao for the Appellants.
C.M. Nayyar for the Respondents.
The following Order of the Court was delivered ORDER This appeal by special leave is directed against the decision of the 682 High Court of Punjab & Haryana which dismissed the writ petition of the appellant and sustained the order of his compulsory retirement In March 1949, the appellant entered into service as a clerk in the Police Department.
When he was working in the office of Inspector General of Police, he appeared for selection to the posts of Excise Sub Inspector in the Excise Department of the State.
He was selected and appointed as Excise Sub Inspector He continued in the post for a number of years.
In October 1963, he was repatriated to his parent department But it was not a simple repatriation.
The post of Excise Sub Inspector was in the higher scale than his original post in the Police Department So he was reverted and sent back to his parent department.
The appellant challenged the reversion and repatriation in O.S. No. 126 of 1965 before the Court of Subordinate Judge 1st Class, Patiala.
He sought for a declaration that the order of reversion was illegal and void.
It was an infringement of his legal right to continue as Sub Inspector in the Excise Department. 'The learned Subordinate Judge accepted his claim and decreed the suit.
He made some perti nent observation.
"The plaintiff continued to hold the post beyond the prescribed period of probation and his services were not dispensed with at the end of two years and he was not reverted.
The plaintiff, in fact, continued to hold the post for more than 6 years, after the maximum period of probation had expired.
Consequently, the rule laid down in and on the basis there of, it is held that the plaintiff must be taken to have so continued in a substantive capacity.
On this conclusion, that the plain tiff was in October, 1963, holding his post substantively, that termination of his service necessarily amounted to punishment, and must be deemed to be removal from service, which of course was not permissible without a proper enquiry.
The conclusion must, therefore, be that the termination of the plaintiff 's serv ices was illegal.
" It is thus clear from the above observation that the Court expressed the view that the appellant was holding a substantive post in the Excise Department.
After completing his probationary period, he was holding the post of Sub Inspector in a substantive capacity.
So his reversion and repatriation .amounted to penalty which was illegal since made without proper enquiry.
683 Since repatriation of the appellant was set aside by the Civil Court, the appellant was allowed to continue without interruption in the Excise Department itself.
On October 1, 1975, the Excise Commissioner made an order compulsorily retiring him from service.
The order was made under Rule 3(1)(a) and (b) of the Punjab Civil Services (Premature Retirement) Rules, 1975.
The appellant challenged the valid ity of that order before the High Court mainly on the ground that the Excise Commissioner was not competent to make that order since he belonged to Police Department.
He claimed that his lien in the Police Department was not removed and, therefore, the Inspector General of Police was alone compe tent to deal with him.
In support of the contention, he placed reliance on the decision of this Court in T.C. Sharma vs Prithvi Singh & Ors., ; The High Court, however, distinguished that decision and dismissed the writ petition.
It was held that the appellant had not gone to the Excise Department on deputation from the Police Department, but he held a fresh appointment as an Excise Sub Inspector.
Counsel for the appellant placed strong reliance on rule 3.14 of the Punjab Civil Services Rules (Vol.
I) Part I and also on the decision in T.C. Sharma case.
He urged that the appellant was no doubt holding a substantive post in the Excise Department, but he had not acquired a lien against that post, since he was not confirmed in that post.
It was claimed that the lien in the parent department ought to have been suspended so that it could ensure to his benefit as and when he wanted to return back to his parent department.
The contention, in other words, proceeded on the premise that the lien against original post in the Police Department could not vanish even though the appellant was holding a substantive post in the Excise Department.
We do not think that the contention urged for the appel lant as to Rule 3.14 could be accepted.
Rule 3.14 provides that a competent authority shall suspend the lien of a Government servent when he is appointed in a substantive capacity to a permanent post outside the cadre on which he is borne.
It seems to us that this rule cannot be operated to the prejudice of a Government servant who on his own has acquired legal right to an ex cadre post.
Indeed, the rule is for the benefit of a Government servant who intends to return back to his parent department.
That was also the view expressed in T.C. Sharma case.
But then, the appellant never wanted to return back to his parent department.
He was stoutly opposing repatriation and asserting his right to remain in the ex cadre post.
He has thus denied himself of the benefit or ' that rule.
684 The other contention urged for the appellant that he was not confirmed in the Excise Department and unless confirmed, he acquired no lien cannot also be accepted.
Lien is not a word of article It just connotes the right of a civil servant to hold the post substantively to which he is appointed.
Generally when a person with a lien against a post is ap pointed substantively to another post, he acquires a lien against the latter post.
Then the lien against his previous post automatically disappears.
The principle being that no Government servant can have simultaneously two liens against two posts in two different cadres.
It is a well accepted principle of service jurisprudence.
In the instant case, the civil court has already ruled that the appellant had a right to continue in his substan tive appointment as Excise Sub Inspector.
He secured that declaration when the Excise Department repatriated him to his parent department.
After obtaining that decree from a court of competent jurisdiction, he could not turn round and say that he still retained lien against his post in the parent department.
The lien in his parent department must be held to have been cancelled consequent on the decree of the Civil Court.
Therefore, the Excise Commissioner seems to be the only competent authority to pass the order compulsorily retiring him from service.
The appeal, therefore, fails and is dismissed in the circumstances of the case, we make no order as to costs.
Before parting with the case, we may however add a word more.
It was stated that in view of pendency of the proceed ings in this Court and in the High Court, the pension due to the appellant has not been finalised.
We, therefore, direct the respondent to determine the pensionary benefits of the appellant and pay the same to his legal heirs within three months, if not already paid.
G.N. Appeal dismissed.

dataset_name: IN-Abs

summary:
The appellant, while working in the Police Department as a clerk, was selected, and subsequently appointed, as Excise Sub Inspector.
After several years, he was reverted and sent back to his parent department.
He challenged the reversion order before the Sub Judge, who allowed him to continue in the Excise Department, where he was holding a substantive post.
After a decade, he was compulsorily retired by the Excise Commissioner.
The appellant moved the High Court by way of a writ petition challenging the said order and con tending that the Excise Commissioner was not competent to pass the order as the appellant belonged to the Police Department where his lien continued.
The High Court rejected the writ petition.
This appeal by special leave is against the said deci sion of the High Court.
It was contended that the lien against original post in the police Department could not vanish even though the appellant was holding a substantive post in the Excise Department.
Dismissing the appeal, HELD: 1.
Rule 3.14 of the Punjab Service Rules provides that a competent authority shall suspend the lien of a Government servant when he is appointed in a substantive capacity to a permanent post outside the cadre on which he is borne.
This rule cannot be operated to the prejudice of a Government servant who on his own has acquired legal right to an ex cadre post.
Indeed, the rule is for the benefit of a Government servant who intends to return back to his parent department.
But the appellant never wanted to return back to his parent department.
He was stoutly opposing repatriation and asserting his right to remain in the ex cadre post.
He has thus denied himself of the benefit of that rule.
[683F H] 681 T.C. Sharma vs Prithvi Singh & Ors., 16: referred to.
Lien is not a word of article It just connotes the right of a civil servant to hold the post substantively to which he is appointed.
Generally when a person with a lien against a post is appointed substantively to another post, he ac quires a lien against the latter post.
Then the lien against his previous post automatically disappears.
It is a well accepted principle of service jurisprudence that no Govern ment servant can have simultaneously two liens against two posts in two different cadres.
[684A B] 3.
In the instant case, the civil court has already ruled that the appellant had a right to continue in his substantive appointment as Excise Sub Inspector.
He secured that declaration when the Excise Department repatriated him to his parent department.
Alter obtaining that decree from a court of competent jurisdiction, he could not turn round and say that he still retained lien against his post in the parent department.
The lien in his parent department must be held to have been cancelled consequent on the decree of the civil court.
Therefore, the Excise Commissioner seems to be the only competent authority to pass the order compulsorily retiring him from service.
[689C D] This Court directed the respondent to determine the pensionary benefits of the appellant and pay the same to his legal heirs within three months, if not already paid.]


judgement:
1830 32 of 1981.
(Under Article 32 of the Constitution of India).
U.R. Lalit, V.N. Ganpule, A.B. Lal and Ms. Punam Kumari for the Petitioners.
V.C. Mahajan, Ms. A Subhashini, P.H. Parekh, A.S. Bhasme and A.M. Khanwilkar for the Respondents.
The Judgment of the Court was delivered by OJHA, J.
The petitioners in these petitions under Arti cle 32 of the Constitution hold land within the city of Sholapur in the State of Maharashtra.
According to the petitioners development plan has been sanctioned with regard to land situated m the city of Sholapur including the peti tioners ' land under the Maharashtra Regional and Town plan ning Act, 1976 (hereinafter referred to as the Maharashtra Act No. 37 of 1966) and some land of the petitioners was re served for public purpose under that Act.
The Urban Land (Ceiling & Regulation) Act, 1976 (hereinafter referred to as the Act was brought into force on 28th February, 1976 and proceedings for acquisition of vacant land in excess of the ceiling limit placed under the Act were initiated against the petitioners.
These writ petitions have been filed for the following reliefs: (a) It may be declared that the Urban Ceiling Act does not apply to lands reserved for a public purpose under the Maharashtra Regional Town Planning Act, 1966: (b)The proceedings for determination of ceil ing be declared void and quashed so far as the lands are reserved for public purpose; 619 (c) The State Government be restrained from taking any action under Section 10(3) of the Ceiling Act; (d) The final statement under Section 9 of the Ceiling Act be amended suitably; (e) A Writ of Mandamus or in the nature of Mandamus be issued restraining the State Government or its agents from acquiring and/or taking possession of final plots Nos. 26, 22, 42, 28A and 44A/1; (f) Sections 10, 11 and 23 of the Ceiling Act be declared ultra vires of Articles 14 and 31 of the Constitution; (g) Any other order and/or direction as this Hon 'ble Court may deem fit, be passed.
It has been pointed out by the learned counsel for the petitioners that Section 125 of the Maharashtra Act No. 37 of 1966 contemplates, inter alia, that any land required, reserved or designated in a development plan for a public purpose shall be deemed to be land needed for a public purpose within the meaning of the Land Acquisition Act, 1894 whereas Section 126 thereof contains the procedure for acquisition of land required for public purposes.
According to learned counsel if land is acquired as contemplated by Sections 125 and 126 aforesaid, the provisions of the Land Acquisition Act shall apply to the acquisition of the said land with the modification that the market value of the land shall be computed as contemplated by sub section (3) of Section 126 whereas if the land was acquired under the Act, compensation payable would be much less as contemplated by Section 11 of the Act and that too with a ceiling of two lakhs of rupees as provided by sub section (6) thereof.
It has been urged that it is left to the sweet will of the authorities concerned to acquire land either under Sections 125 and 126 of the Maharashtra Act No. 37 of 1966 or under the provisions of Section 10 of the Act and that since in the event of proceedings for acquisition being taken under Section 10 of the Act as is sought to be done in the case of the petitioners the compensation payable would be far less than the compensation payable if the acquisition is made under the Maharashtra Act No. 37 of 1966, discrimination under Article 14 of the Constitution was writ large, and in this view of the matter the petitioners are entitled to the reliefs claimed in these writ petitions.
Having heard learned counsel for the parties, we are of the 620 opinion that none of the reliefs prayed for in the writ petitions can be granted to the petitioners.
At the very outset, it may be pointed out that the Act has been placed in the 9th Schedule to the Constitution at SI.
No. 132 and consequently comes under the protective umbrella of Article 31 B of the Constitution.
In Maharao Sahib Shri Bheem Singh vs Union of India and others, [1985] Suppl.
1 S.C.R. Page 862 it has been held by a Constitution Bench of this Court that the Act is constitutionally valid save and except Section 27(1) to the extent mentioned in the judgment.
With regard to sub section (6) of Section 11, it has specifically been held at page 879 of the Report that this sub section which provides that compensation payable under Section 11 shall in no case exceed two lakhs of rupees is valid.
The amount thus payable is not illusory and the provision is not confiscatory.
Rupees two lakhs are not like a earthing even if the excess land may be a fortune.
In this connection, it may be pointed out that it has not been urged by the learned counsel for the petitioners that the provisions of the Act which have been impugned in the present writ petitions in any way damage or destroy a basic or essential feature of the Constitution or its basic structure.
No statutory provi sion either in the Act or even in the Maharashtra Act No. 37 of 1966 has been brought to our notice excluding the opera tion of the Act with regard to lands reserved for public purpose under the Maharashtra Act No. 37 of 1966.
On the other hand, there is a specific overriding provision in Section 42 of the Act which provides that the provisions of this Act shall have effect notwithstanding anything incon sistent therewith in any other law for the time being in force or any custom usage or agreement or decree or order of a Court, Tribunal or other authority.
It is in this view of the matter that we are of the opinion that none of the relief prayed for in the present writ petitions can be granted.
What has, however, been urged by the learned counsel for the petitioners is that notwithstanding the specific relief (f) referred to above, the petitioners are really not chal lenging the validity of Sections 10, 11 & 23 of the Act but they are challenging the action which is being taken with regard to the petitioners ' land on the ground that it is discriminatory.
We find no substance in this submission either.
In Union of India etc.
vs Valluri Basavaiah Chaucer etc.
, [1979] 3 S.C.R. Page 802 it was pointed out by a Constitution Bench of this Court that the primary object and the purpose of the Act as the long title and preamble show, is to provide for the imposition of a ceiling on vacant land in urban agglomerations, for the acquisition of such land in excess of the ceiling limit to regulate the construction of 621 buildings on such land and for matters connected therewith, with a view to preventing the concentration of urban land in the hands of a few persons and speculation and profiteering therein, and with a view to bringing about an equitable distribution of land in urban agglomerations to subserve the common good, in furtherance of the Directive Principles of Article 39(b) and (c).
That this was the object and the purpose of the Act has been reiterated in a recent decision of this Court in State of Gujarat & others vs Parshottamdas Ramdas Patel & Others, [1988] 1 S.C.R. Page 997.
It is in this background that the submission of learned counsel for the petitioners about discrimination in the matter of implementation or taking action under the Act has to be considered.
While elaborating this argument of dis crimination it was pointed out by learned counsel for the petitioners that if land belonging to 'A ' and 'B ' within an urban agglomeration is reserved for a public purpose under development scheme and 'A ' is holding land within ceiling area whereas 'B ' holds land in excess of such ceiling area, 'A ' will get compensation under the Maharashtra Act No. 37 of 1966 whereas 'B ' will get compensation under the Ceiling Act and the basis and method of compensation will drastical ly vary.
In support of this submission reliance was placed on a decision of this Court in Nagpur Improvement Trust & Another vs Vithal Rao & Others, [1973] 3 S.C.R. Page 39.
In that case land was sought to be acquired under the Nagpur Improvement Trust Act.
In a petition under Articles 226 and 227 of the Constitution the validity of the Nagpur Improvement Trust Act was challenged inter alia on the ground that the said Act was in violation of Article 14 of the Constitution inasmuch as it empowered the acquisition of lands at prices lower than those which could have been payable if they had been acquired under the Land Acquisition Act.
The writ petition was allowed by the High Court and it was held that paragraphs 10(2) and 10(3) in so far as they added a new clause 3(a) to section 23 and a proviso to sub section (2) of section 23 of the Land Acquisition Act, 1894 were ultra vires as violating the guarantee of Article 14 of the Constitution.
Suffice it to say, so far as this submission is con cerned that the land to the extent which falls within the ceiling area stands in a class different from the land which is in excess of the ceiling area and is liable to be de clared surplus to give effect to the purpose and object of the Act. ' What is the purpose and object of the Act has already been noticed earlier.
Further unlike the Nagpur Improvement Trust Act, 1936 the validity whereof was 'chal lenged in the case of Vithal Rao 622 (supra), the Act has been placed in the 9th Schedule.
As a result thereof the Act comes within the protective umbrella of Article 31 B of the Constitution which was not available to the Nagpur Improvement Trust Act.
The decision in the case of Vithal Rao (supra) came up for consideration before a Constitution Bench of this Court with reference to Bombay Town Planning Act, 1954 in Prakash Chand Amichand Shah vs State of Gujarat and others, [1986] 1 S.C.C. Page 581.
It was held: "In order to appreciate the contentions of the appellant it is necessary to look at the object of the legislation in question as a whole.
The object of the Act is not just acquiring a bit of land here or a bit of land there for some public purpose.
It consists of several activities which have as their ulti mate object the orderly development of an urban area.
It envisages the preparation of a development plan, allocation of land for various private and public uses, preparation of a Town Planning Scheme and making provi sions for future development of the area in question.
The various aspects of a Town Plan ning Scheme have already been set out.
On the final Town Planning Scheme coming into force under Section 53F of the Act there is an automatic vesting of all lands required by the local authority.
It is not a case where the provisions of the Land Acquisition Act, 1894 have to be set in motion either by the Collec tor or by the Government.
" It was further held: "The provision under consideration in the above decision corresponds to Section 11 and to Section 84 of the Act, which we are now considering.
Section 59 of the Nagpur Improve ment Trust Act, 1936 provided that the Trust might, with the previous sanction of the State Government acquire land under the provisions of the Land Acquisition Act, 1894 as modified by the provisions of the said Act for carrying out any of the purposes of the said Act.
But the provisions which are questioned before us are of a different pattern altogether.
They deal with the preparation of a scheme for the development of the land.
On the final scheme coming into force the lands affected by the scheme which are needed for the local authori ty for purposes of the scheme automatically vest in the local authority.
There is 623 no need to set in motion the provisions of the Land Acquisition Act, 1894 either as it is or as modified in the case of acquisition under Section 11 or Section 84 of the Act.
Then the Town Planning Officer is authorised to deter mine whether any reconstituted plot can be given to a person whose land is affected by the scheme.
Under Section 51(3) of the Act the final scheme as sanctioned by the Government has the same effect as if it were enacted in the Act.
The scheme has to be read as part of the Act.
Under Section 53 of the Act all rights of the private owners in the original plots would determine and certain consequen tial rights in favour of the owners would arise therefrom.
If in the scheme, reconsti tuted or final plots are allotted to them they become owners of such final plots subject to the rights settled by the Town Planning Offi cer in the final scheme.
In some cases the original plot of an owner might completely be allotted to the local authority for a public purpose.
Such private owner may be paid compensation or a reconstituted plot in some other place.
It may be a smaller or a bigger plot.
It may be that in some cases it may not be possible to allot a final plot at all.
Sections 67 to 71 of the Act provide for cer tain financial adjustments regarding payment of money to the local authority or to the owners of the original plots.
The development and planning carried out under the Act is pri marily for the benefit of public.
The local authority is under an obligation to function according to the Act.
The local authority has to bear a part of the expenses of development.
It is in one sense a package deal.
The pro ceedings relating to the scheme are not like acquisition proceedings under the Land Acqui sition Act, 1894.
Nor are the provisions of the Land Acquisition Act, 1894 made applicable either without or with modifications as in the case of the Nagpur Improvement Trust Act, 1936.
We do not understand the decision in Nagpur Improvement Trust case as laying down generally that wherever land is taken away by the government under a separate statute com pensation should be paid under the Land Acqui sition Act, 1894 only and if there is any difference between the compensation payable under the Land Acquisition Act, 1894 and the compensation payable under the statute con cerned the acquisition under the statute would be discriminatory.
That case is distinguisha ble from the present case.
" 624 In the instant case also the purpose and object of the Act being entirely different from just acquiring a bit of land here or a bit of land there for some public purpose, and the Act being a serf contained Code having an overriding provision in Section 42, the decision in the case of Vithal Rao (supra) is wholly inapplicable in so far as acquisition of surplus land under the Act is concerned.
It was also urged that if one person holds land in excess of ceiling area and the excess therein is reserved for a public purpose under the development scheme there will still be discriminatory results if the land in excess of ceiling is reserved for different purposes.
According to learned counsel if the purpose of reservation is construc tion of buildings the land will be given compensation under the Ceiling Act whereas when the purpose of reservation is parks, gardens etc.
compensation would be given under the Maharashtra Act 37 of 1966.
The result, according to learned counsel, is discriminatory.
This submission again has appar ently no substance inasmuch as the provisions of the Ceiling Act are applicable with regard to vacant land and if for some fortuitous circumstances a particular category of land does not fail within the definition of vacant land the provisions with regard to vacant land can obviously not be applied to such land.
Here again, the lands failing under the two categories constitute separate classes and cannot consequently be treated alike.
Learned counsel for the petitioners also referred .to some other cases wherein a similar view, as in the case of Vithal Rao (supra), was taken but we do no consider it necessary to deal with those cases separately for the rea sons already stated above.
With regard to the submission of learned counsel that the question as to whether a land reserved for public purpose under the Maharashtra Act No. 37 of 1966 should be acquired under that Act or under Section 10 of the Act has been left to the sweet will of the author ity concerned, we are of the opinion that it is not so.
Once the land falls beyond the ceiling limit prescribed by the Act and is capable of being acquired as surplus land under Section 10 of the Act it would be wholly inappropriate to acquire the same very land or a portion thereof under the Maharashtra Act No. 37 of 1966 inasmuch as it would inter alia apparently result in misuse of public funds by granting higher compensation when the purpose of acquisition can be achieved on payment of the lesser amount of compensation prescribed in Section 11 of the Act.
In the case of Parshottamdas Patel (supra), the State Government of Gujarat issued a notification under section 4(1) of the Land 625 Acquisition Act, 1894 stating that the lands of the respond ents were likely to be needed for the public purpose of providing housing accommodation for the employees of the Municipal Corporation.
Subsequently, a notification under Section 6 of the said Act declaring that the aforesaid lands along with the other lands were needed for the said public purpose, was also made.
In the meantime, the Act came into force and the respondents filed writ petitions contending inter alia that the acquisition proceedings under the Land Acquisition Act should be proceeded with and the acquisition proceedings to the extent it related to the surplus land under the ceiling law should be dropped.
The writ petitions were allowed.
Reversing the judgment of the High Court, this Court held: "The declaration made by the High Court in these cases that the land acquisition proceedings did not suffer from an infirmity which indirectly suggests that the proceedings should go on is again erroneous.
It is open to the State Government to drop the land acquisi tion proceedings and to withdraw the lands from acquisition under section 48 of the Land Acquisition Act, 1894.
We are informed that the State Government has in fact subsequently withdrawn these lands from acquisition.
The proceedings under the Land Acquisition Act, 1894 cannot therefore have any beating on the question whether the lands in question are vacant lands or not for purposes of the ceil ing law contained in the Act.
When the lands in question or bulk of them are likely to be acquired under the ceiling law by paying compensation as provided therein, it would not be proper to compel the Government to acquire them under the provisions of the Land Acquisi tion Act, 1894.
As already stated the Act has the overriding effect on all other laws.
" In view of the foregoings discussion, we find no merit in these writ petitions and they are accordingly dismissed.
There shall, however, be no order as to costs.
Petitions dismissed.

summary:
The State Government sanctioned development plan in respect of and situated in Sholapur under the Maharashtra Regional and Town planning Act, 1966.
Though the sanction covered the land of petitioners also, some of their land was reserved for public purpose under the said Act.
Thereafter, the Urban Land (Ceiling & Regulation) Act, 1976 came into force and proceedings for acquisition of land in excess of the ceiling limit were initiated.
Against such proceedings, the petitioners have approached this Court by way of writ petitions.
The petitioners contended that the Urban Ceiling Act would not apply to the lands reserved for a public purpose under the Town Planning Act and that the proceedings should be quashed.
They also challenged the constitutional validity of sections 10, 11 and 23 of the Ceiling Act, as being ultra vires of Articles 14 and 31, and prayed for a Writ of Manda mus restraining the State Government from acquiring the petitioners ' land under the Ceiling Act.
Dismissing the writ petitions, HELD: 1.1.
The Act has been placed in the Ninth Schedule to the Constitution at SI.
No. 132 and consequently comes under the protective umbrella of Article 31 B of the Consti tution.
[620A B] 1.2.
It is not the case of the petitioners that the provisions of the 617 Ceiling Act in any way damage of destroy a basic or essen tial feature of the Constitution or its bask structure.
Also there is no statutory provision either in the Ceiling Act or in the Town Planning Act, which would exclude the operation of the Ceiling Act with regard to lands reserved for public purpose under the Town Planning Act.
[620C E] Maharao Sahib Shri Bheem Singh vs Union of India and others, [1985] Suppl.
1 S.C.R. 862; applied.
The primary object and the purpose of the Ceiling Act is to provide for the imposition of a ceiling an vacant land in urban agglomerations, for the acquisition of such land in excess of the ceiling limit to regulate the con struction of building on such land and for matters connected therewith, with a view to preventing the concentration of urban land in the hands of a few persons and speculation and profiteering therein, to bring about an equitable distribu tion of land is urban agglomerations to subserve the common good, in furtherance of the Directive Principles of Articles 39(b) and (c).
The land to the extent which falls within the ceiling area stands in a class different from the land which is in excess of the ceiling area and is liable to be de clared surplus to give effect to the purpose and object of the Ceiling Act.
[620G H; In the instant case, the purpose and object of the Ceiling Act is entirely different from just acquiring a bit of land here or a bit of land there for some public purpose.
The Ceiling Act is a self contained Code having an overrid ing provision in Section 42.
Once the land fails beyond the ceiling limit prescribed by the Ceiling Act and is capable of being acquired as surplus land under Section 10 thereof it would he wholly inappropriate to acquire the same very Land or a portion thereof under the Town planning Act inas much as it would inter alia apparently result in misuse of public funds by granting higher compensation when the pur pose of acquisition can he achieved on payment of the lesser amount of compensation prescribed in Section 11 of the Ceiling Act.
[624A, B, F & G] Union of India etc.
vs Valluri Basavaiah Chowdhary etc.
; , ; State of Gujarat & Others vs Parshottamdas Ramdas Patel & Others, ; ; relied on.
Nagar Improvement Dust & Another vs Vithal Rao & Oth ers; , , distinguished.
Prakash Chand Amichand Shah vs State of Gujarat and others; , ; referred to.
618 3.
The alleged discrimination that if the purpose of reservation is construction of buildings, the land will be given compensation under the Ceiling Act whereas when the purpose of reservation is parks, gardens etc.
compensation would be given under the Town Planning, Act, does not exist.
The provisions of the Ceiling Act are applicable with regard to vacant land and if for same fortuitous circumstances a particular category of land does not fall within the defini tion of vacant land the provisions with regard to the vacant land can obviously not be applied to such land.
The lands falling under the two categories constitute separate classes and cannot consequently be treated alike.
[624B, C & D]


judgement:
ivil Appeal No. 955 of 1981.
From the Judgment and Order dated 11.5.79 of the Allaha bad High Court in W.P. No. 3048 of 1973.
P.N. Lekhi and M.K. Garg for the Appellant.
K.M. Sinha, Deepak Jaiswal and Pramod Swarup for the Respondents.
The Judgment of the Court was delivered by VERMA, J.
This appeal by special leave under Article 136 of the Constitution of India is against the judgment of a learned Single Judge of the Allahabad High Court in Writ Petition No. 3048 of 1973 decided on May 11, 1979.
The subject matter of the dispute is a holding compris ing of Khata No. 141 in village Khera, Laxmipur, Pargana Kashipur in District Naimtal of which one Chain Sukh was initially the occupancy tenant.
The said Chain Sukh died issueless prior to the date of vesting, that is, 1.7.1952 under the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as "the Zamindari Abolition Act") survived by his widow, Smt.
Sukhia.
The interest of Chain Sukh as the occupancy tenant of the holding devolved upon his widow, Smt.
Sukhia, in accordance with section 35 of the United Provinces Tenancy Act, 1939 (hereinafter referred to as "the Tenancy Act") in the absence of any male lineal descendant of Chain Sukh.
The appellant, Smt.
Mainia, is the sister of deceased Chain Sukh.
Even according to the appellant, Smt.
Mainia, Chain Sukh 's widow, Smt.
Sukhia, remarried Gopal Singh in "Karwa" form according to the caste custom about two years after the death of Chain Sukh and a son, Chander Pal, respondent No. 4, was born to Sukhia during her wedlock with Gopal Singh.
Sukhia continued to remain in possession of this holding till her death in 1965.
A dispute arose between appellant, Smt.
Mainia and respondent No. 4, Chander Pal, during the consolidation proceedings under the U.P. Consolidation of Land Holdings Act in respect of this holding, each of them claiming sole interest therein to the exclusion of the other.
Ultimately, the Consolidation Officer, Afzalgarh, by his order dated 29.1.1972 (Annexure III) passed under section 9 A of the Act 689 dismissed Chander Pal 's claim to the holding.
The Consolida tion Officer held that Smt.
Sukhia on her remarriage with Gopal Singh lost her interest in the holding and by virtue of section 171 of the Zamindari Abolition Act, appellant, Smt.
Mainia, being the sister of Chain Sukh inherited the interest in the holding.
It was held that Chander Pal, not being the son of Smt.
Sukhia from Chain Sukh but the son born to Smt.
Sukhia after her remarriage with Gopal Singh, could not inherit as a heir of Chain Sukh.
The Settlement Officer, Consolidation, Nainital dismissed Chander .Pal 's appeal under Section 11 against the order of the Consolida tion Officer by order dated 14.2.1972 (Annexure IV).
Howev er, the Settlement Officer held that even though Smt.
Sukhia lived in the house of Gopal Singh for several years there is no positive evidence of her remarriage with Gopal Singh and therefore a legal marriage of Smt.
Sukhia with Gopal Singh is not proved.
It was held that Smt.
Sukhia cultivated the land throughout as the widow of Chain Sukh and therefore Chain Sukh 's sister Smt.
Mainia inherited it after the death of Smt.
Sukhia.
A revision by Chander Pal to the Deputy Director Consolidation, Moradabad, Camp Kashipur, under Section 48 was also dismissed by order dated 15.11.1972 (Annexure V).
It was observed that Smt.
Mainia in her reply dated 10.12.1970 had stated that Smt.
Sukhia did "Karwa" with Gopal Singh but Smt.
Sukhia had been shown in the family register as widow of Chain Sukh which shows that Smt.
Sukhia was treated as a widow of Chain Sukh till the time of her death.
It was held that Smt.
Sukhia 's "Karwa" with Gopal Singh not being proved to be a legal marriage, the succes sion would be governed on the basis that she.
was Chain Sukh 's widow at the time of her death.
A writ petition under Article 226 of the Constitution was then filed by Chander Pal in the High Court which has been allowed by the impugned judgment dated May 11, 1979.
The High Court has quashed the orders passed by the Consoli dation Authorities and directed the Deputy Director (Consol idation) to decide the revision of Chander Pal afresh on the basis of the decision given in the writ petition.
The High Court has held that the consolidation authorities erred in deciding the matter on the basis that Smt.
Sukhia 's marriage with Gopal Singh was not proved to be legal and, therefore, Smt.
Sukhia 's possession of the holding till the time of her death was merely as widow of Chain Sukh.
It was pointed out that in view of appellant Smt.
Mainia 's clear admission that Smt.
Sukhia was remarried to Gopal Singh in "Karwa" form, according to caste custom, after Chain Sukh 's death and that they had been living together as husband and wife for sever al years no further proof of legality of the remarriage was necessary.
Reliance was placed 690 by the High Court on a decision of the Supreme Court in Badri Prasad vs Deputy Director Consolidation, ; for reaching its conclusion and it was held that this strong presumption of validity of Smt.
Sukhia 's remar riage with Gopal Singh was not rebutted by the entry in the family register which continued to show Smt.
Sukhia as the widow of Chain Sukh.
Consequently, it was held by the High Court that the finding of the consolidation authorities that Smt.
Sukhia 's interest in the holding continued to be as widow of Chain Sukh was a manifest error of law.
The High Court then proceeded to examine the legal consequences of Smt.
Sukhia remarriage with Gopal Singh prior to the date of vesting i.e., 1.7.1952 under the Zamindari Abolition Act and her continuous possession over the holding after her remar riage.
It was held by the High Court that the effect of the provisions of the Tenancy Act was that her interest in the holding after her remarriage was in her own right and not as widow of Chain Sukh; and therefore, by virtue of section 180(2) of the Tenancy Act she acquired an independent right which did not devolve upon her death to Chain Sukh 's sister, appellant Smt.
Mainia, but to her son Chander Pal born to her after her remarriage with Gopal Singh.
It is on this basis that the High Court has directed the Deputy Director, Consolidation, to decide respondent No. 4, Chander Pal 's revision afresh.
Hence this appeal by special leave.
Shri P.N. Lekhi, learned counsel for the appellant, Smt.
Mainia, has assailed the decision of the High Court substan tially on the ground that Smt.
Sukhia 's interest in the holding continued till her death only as widow of Chain Sukh since her initial interest in the holding was by revolution as widow of Chain Sukh under section 35 of the Tenancy Act.
Learned Counsel for the appellant also contended before us that Smt.
Sukhia 's remarriage with Gopal Singh was not proved and, therefore, the consequences of remarriage, if any, did not arise.
He argued that Smt.
Sukhia 's name was recorded throughout only as the widow of Chain Sukh which negatived the case of her remarriage with Gopal Singh after the death of Chain Sukh.
He argued that since the possession of Smt.
Sukhia till her death in 1965 was as widow of Chain Sukh, there was no occasion for attracting the provisions contained in section 180(2) of the Tenancy Act.
It was urged that on the death of Smt.
Sukhia in 1965 the succession was governed by section 172 read with section 171 of the Zamind ari Abolition Act on account of which by virtue of clause (m) of section 171 appellant Smt.
Mainia being the married sister of Chain Sukh inherited the interest in the holding instead of respondent No. 4, Chander Pal by virtue of sec tion 174 of that Act.
691 In reply, Shri K.M. Sinha, learned counsel for re spondent No. 4 contended that remarriage of Smt.
Sukhia with Gopal Singh after the death of Chain Sukh prior to the date of vesting i.e., 1.7. 1952 under the Zamindari Abolition Act being the admitted case of appellant Smt.
Mainia herself, the appellant cannot now be permitted to take a contrary stand.
It was urged that the conclusion of the High Court is correct and that consequence is obvious from the provisions of the Tenancy Act.
On this basis, it was urged that the possession of Smt.
Sukhia in the holding at the time of her death not being as a widow of Chain Sukh but in her own right the succession is governed not by section 172 but by section 174 of the Zamindari Abolition Act under which respondent No. 4, Chander Pal, inherited Smt.
Sukhia 's interest in the holding as her son.
In our opinion, the contention of learned counsel for the appellant cannot be accepted and on the case set up by Smt.
Mainia herself no fault can be found with the reasoning or conclusion of the High Court.
It is obvious even from the orders of the consolida tion authorities that Smt.
Sukhia 's remarriage in "Karwa" form according to the caste custom with Gopal Singh a couple of years after the death of Chain Sukh was pleaded by Smt.
Mainia herself in her reply dated 10.12.1970 as mentioned in the order dated 15.11.1972 (Annexure V) by the Deputy Direc tor (Consolidation) while deciding Chander Pal 's revision.
The controversy between the parties before the consolidation authorities was at best only about the validity of the remarriage and not its factum.
Moreover, the order of the Consolidation Officer dated 29.1.
1972 (Annexure III) also indicates that before the Consolidation Officer appellant, Smt.
Mainia, did not dispute even the validity of Smt.
Sukhia 's remarriage with Gopal Singh and the case of the appellant before the Consolidation Officer was put on the basis of Smt.
Sukhia being remarried to Gopal Singh and Chander Pal being the son born to Smt.
Sukhia after her remarriage so that Chander Pal could not claim to be a legal heir of Smt.
Sukhia 's first husband Chain Sukh.
The High Court was, therefore, right in taking the view that the matter must be decided on the basis of Smt.
Sukhia being remarried to Gopal Singh a couple of years after the death of her first husband Chain Sukh and the question of factum or validity of Smt.
Sukhia 's remarriage with Gopal Singh did not really arise.
This being so, the mere fact of Smt.
Sukhia 's name being shown in the family register as widow of Chain Sukh till the time of her death in 1965 did not have the effect of continuing Smt.
Sukhia 's status as widow of Chain Sukh even after she 692 had become the wife of Gopal Singh as a result of her remar riage.
The effect of the statutory provisions on the continued possession of Smt.
Sukhia in this altered status has, there fore, to be examined.
The relevant provisions of the Tenancy Act may now be noticed.
Admittedly, succession to the interest of Chain Sukh on his death was governed by section 35 of the Tenancy Act according to which the interest of Chain Sukh in the holding devolved upon Smt.
Sukhia as his widow in the ab sence of any male lineal descendant in the male line of descendant.
Section 36 of the Tenancy Act is as under: "36(1) When a female tenant, other than a tenant mentioned in section 34, who either before or after the commencement of this Act has inherited an interest in a holding as a widow, as a mother, as.a step mother, as a father 's mother, or, as a daughter dies or abandons such holding, or surrenders such holding, or a part of such holding or, in the case of a tenant inheriting as a widow or as a daughter, marries such holding or such part of such holding shall, notwithstanding anything in section 45, devolve in accordance with the order of succession laid down in section 35 on the heir of the last male tenant, other than a tenant who inherited as a father 's father under the provisions of that section . . (emphasis supplied)" The applicability of section 36 in the present case was disputed by the learned counsel for the appellant.
We are unable to agree.
Section 36 clearly provides for succession to a female tenant holding an interest inherited as a widow in the case of her marriage thereafter, or, in other words, remarriage.
The learned counsel for the appellant contends that this is not so.
In our opinion, the argument overlooks the clear words "in the case of a tenant inheriting as a widow . marries" which show that the situation where a female tenant who inherited as a widow marries, or, in other words, remarries is specifically covered by section 36.
The contrary construction placed on section 36 by the learned counsel for the appellant would render these words redun dant.
The word 'marries ' instead of the word 'remarries ' has been used for the obvious reason that it refers both to a widow as well as a daughter.
We have, therefore, no doubt that section 36 was attracted in the 693 present case when Smt.
Sukhia remarried Gopal Singh after the death of Chain Sukh.
Section 36 also overrides section 45 since it clearly says, "notwithstanding anything in section 45" which provides generally for extinguishment of the interest of a tenant in the manner specified therein.
The argument of the learned counsel for the appellant that clause (a) of section 45 deals with the situation of death of a tenant and, therefore, attracted, in the present case, on the death of Smt.
Sukhia in 1965 is untenable in view of the express provision made in section 36.
The result is that according to section 36 on the remar riage of Sukhia with Gopal Singh the interest devolved in accordance with the order of succession laid down in section 35 on the heir of the last male descendant, that is, Chain Sukh but appellant Smt.
Mainia, married sister of Chain Sukh, not being one of the heirs of Chain Sukh according to section 35 of the Tenancy Act, the interest did not devolve on Smt.
Mainia.
The continued possession of Smt.
Sukhia thereafter attracted section 180 of the Tenancy Act, the relevant portion of which is as under: 180(1) A person taking or retaining possession of a plot of land without the consent of the person entitled to admit him to occupy such plot and otherwise than in accord ance with the provisions of the law for the time being in force, shall be liable to eject ment under the section on the suit of the person so entitled, and also to pay damages which may extend to four times the annual rental value calculated in accordance with the sanctioned rates applicable to hereditary tenants: XXX XXX XXX (2) If no suit is brought under this section, or if a decree obtained under this section is not executed, the person in possession shall become a hereditary tenant of such plot, or if such person is a co sharer, he shall become a khudkashtholder, on the expiry of the period of limitation prescribed for such suit or for the execution of such decree, as the case may be: XXX XXX XXX.
" 694 Admittedly, no suit as contemplated by sub section (2) of section 180 of the Tenancy Act was brought at any time against Smt.
Sukhia and the prescribed period of limitation for such a suit expired prior to her death in 1965.
Sub section (2) of section 180 was, therefore, clearly attracted and Smt.
Sukhia had become a hereditary tenant by virtue of section 180(2) of the Tenancy Act with the further conse quences flowing therefrom.
The case of the appellant is based on the applicability of section 172 of the Zamindari Abolition Act which governs succession 'in the case of a woman holding an interest inherited as a widow etc on the ground that Smt.
Sukhia 's interest upto the time of her death was only as the widow of Chain Sukh.
It is by virtue of section 172 that the claim is made by the appellant.
Mainia as the married sister of Chain Sukh under clause (m) of section 171.
We have already indicated that the founda tion of Smt.
Mainia 's claim is non existent.
If such a situation, the appellant 's claim was rightly negatived by the High Court.
The learned counsel for the appellant referred to the decision of this Court in Ram Jivan vs Smt.
Phoola (dead) by Lrs. & Ors.
, In view of the above conclu sion, obviously that decision has no application.
The learned counsel also referred to two Single Bench decisions of the Allahabad High Court, namely, Jaganath and others vs Deputy Director of Consolidation Gorakhpur and others, [1976] AWC 654 and Chhiddoo Singh vs Deputy Director of Consolidation & others, [1976] AWC 809.
The first decision did not involve this point.
The learned single Judge in the other decision under provisions of the Agra Tenancy Act took the view that when a widow initially enters into possession as a limited owner, the character of her subsequent posses sion after remarriage cannot change in the absence of evi dence of a change in her animus.
It was held that in such a case it is for the widow to show that later she had asserted her absolute right and was possessing adversely as an abso lute owner in order to prescribe for absolute ownership.
It is sufficient for us to say that the legal consequence flowing from sections 36 and 180 of the U.P. Tenancy Act is enough to indicate that the character of widow 's possession after her remarriage altered by operation of law and any further animus is not required to bring about the effect of the statutory provisions which ensue on expiry of the limi tation prescribed for a suit to evict her.
That decision does not indicate consideration of the effect of a provision like section 180(2) of the Tenancy Act, assuming there was such a provision in the Agra Tenancy Act and also that section 24 of the Agra Tenancy Act was similar to section 36 of the U.P. Tenancy Act.
These decisions are clearly distin guishable.
However, if the other decision 695 under the Agra Tenancy Act is read as taking a contrary view, we are unable to subscribe to that view.
In the result, the appeal fails and is dismissed.
Howev er, in the circumstances of the case, we make no order as to costs.
R.S.S. Appeal dis missed.

summary:
One Chain Sukh died issueless.
His interest as the occupancy tenant of the land in dispute therefore devolved upon his widow, Smt.
Sukhia, in accordance with section 35 of the United Provinces Tenancy Act, 1939.
A couple of years after the death of Chain Sukh, Sukhia remarried Gopal Singh in "Karwa" form according to the caste custom, prior to the date of vesting, i.e., 1.7.1952, under the U.P. Zamindari Abolition and Land Reforms Act, 1950.
A son Chartder Pal, respondent No. 4, was born to Sukhia.
Sukhia continued to remain in possession of this holding till her death in 1965.
The appellant is the sister of deceased Chain Sukh.
A dispute arose between the appellant and Chander Pal during the consolidation proceedings under the U.P. Consolidation of Land Holdings Act, each of them claiming interest to the exclusion of the other.
The Consolidation Officer held that Smt.
Sukhia on her remarriage lost her interest in the holding and by virtue of section 171 of the Zamindari Aboli tion Act, Smt.
Mainia being the sister of Chain Sukh inher ited the interest in the holding.
The Settlement Officer, Consolidation, dismissed Chander Pal 's appeal.
The Settle ment Officer, however, held that a legal marriage of Smt.
Sukhia with Gopal Singh was not proved; that Smt.
Sukhia cultivated the land throughout as the widow of Chain Sukh, and that, after her death the appellant inherrited it.
In revision, the Deputy Director Consolidation held that Smt.
Sukhia 's "Karva" with Gopal Singh not being proved to he a legal marriage, the succession would he governed on the basis that she was Chain Sukh 's widow at the time of her death.
Chander Pal filed a writ under Article 226, and the High Court 686 while allowing the petition held that the consolidation authorities erred in deciding the matter on the basis that Smt.
Sukhia 's marriage with Gopal Singh was not proved to he legal.
The High Court observed that in view of appellant Smt.
Mainia 's clear admission that Smt.
Sukhia was remarried to Gopal Singh in "Karwa" form, and that they had been living together as husband and wife for several years, no further proof of legality of the remarriage was necessary.
The High Court further held that the effect of the provi sions of the Tenancy Act was that her interest in the hold ing after her remarriage was in her own right and not as widow of Chain Sukh, and therefore, by virtue of section 180(2) of the Tenancy Act she acquired an independent right which did not devolve upon her death to Chain Sukh 's sister, but to her son Chander Pal born to her after her remarriage with Gopal Singh.
Before this Court it was contended on behalf of the appellant that Smt.
Sukhia 's interest in the holding contin ued till her death only as widow of Chain Sukh since her initial interest in the holding was by devolution as widow of Chain Sukh under section 35 of the Tenancy Act; that Smt.
Sukhia 's remarriage with Gopal Singh was not proved; that since the possession of Smt.
Sukhia was recorded throughout as widow of Chain Sukh, there was no occasion for attracting the provisions contained in section 180(2) of the Tenancy Act; and that on her death in 1965 the succession was gov erned by section 172 read with section 171 of the Zamindari Abolition Act.
In reply, it was contended that remarriage of Smt.
Sukhia prior to the date of vesting, i.e., 1.7. 1952, under the U.P. Zamindari Abolition and Land Reforms Act, 1950 being the admitted case of the appellant, Smt.
Mainia, herself, the appellant could not now he permitted to take contrary stand; that the possession of Smt.
Sukhia in the holding at the time .of her death not being as a widow of Chain Sikh but in her own right, the succession was governed not by section 172 but by section 174 of the Zamindari Abolition Act under which Chartder Pal inherited Smt.
Suk hia 's interest in the holding as her son.
Dismissing the appeal, this Court, HELD: (1) The case of the appellant before the Consoli dation Officer was put up on the basis of Smt.
Sukhia being remarried to Gopal Singh and Chander Pal being the son born to Smt.
Sukhia after her remarriage could not claim to be a legal heir of Smt.
Sukhia 's first husband Chain Sukh.
The High Court was, therefore.
right in taking the view that the matter must he decided on that basis.
[691F G] (2) The mere fact of Smt.
Sukhia 's name being shown in the 687 family register as widow of Chain Sukh till the time of her death in 1965 did not have the effect of continuing Smt.
Sukhia 's status as widow of Chain Sukh even after she had become the wife of Gopal Singh as a result of her remar riage.
[691H 692A] BadriPrasad vs Deputy Director Consolidation, A.I.R. 1978S.C. 1557, referred to.
(3) Section 36 of the Tenancy Act, which clearly pro vides for succession to a female tenant holding an interest inherited as a widow in the case of her marriage thereafter, or, in other words, remarriage, was attracted in the present case.
[692F] (4) According to section 36, on the remarriage of Smt.
Sukhia with Gopal Singh the interest devolved in accordance with the order of succession laid down in section 35 on the heirs of the last male descendant, that is, Chain Sukh but appellant Smt.
Mainia, married sister of Chain Sukh, not being one of the heirs of Chain Sukh according to section 35 of the Tenancy Act, the interest did not devolve on Smt.
Mainia.
(5) The continued possession of Smt.
Sukhia after her remarriage attracted section 180 of the Tenancy Act.
[693D] (6) Admittedly, no suit as contemplated by sub section (2) of section 180 of the Tenancy Act was brought at any time against Smt.
Sukhia and the prescribed period of limi tation for such a suit expired prior to her death in 1965.
Sub section (2) of section 180 of the Tenancy Act was, therefore, clearly attracted and Smt.
Sukhia had become a hereditary tenant by virtue of that section with the further consequences flowing therefrom.
[694A B] (7) The legal consequence flowing from sections 36 and 180 of the U.P. Tenancy Act is enough to indicate that the character of widow 's possession after her remarriage altered by operation of law and any further animus is not required to bring about the effect of the statutory provisions which ensue on expiry of the limitation prescribed for a suit to evict her.
[694G] Ram Jivan vs Smt.
Phoola (dead) by Lrs., ; Jagarnath and others vs Deputy Director of Consolida tion Gorakhpur and others, [1976] AWC 654 and Chhiddoo Singh vs Deputy Director of Consolidation & others.
, [1976] AWC 809, distinguished.