judgement:
ivil Appeal No. 2311 of 1978.
From the Judgment and Order dated 27.3.1978 of the Allahabad High Court in Second Appeal No. 130 of 1975.
Awadh Behari and N.N. Sharma for the Appellants.
Yogeshwar Prasad and Mrs. Rani Chhabra for the Respondent.
The Judgment of the Court was delivered by K.N. SAIKIA, J.
This appeal by special leave is from the judgment and order dated 27.3.1978 of the High Court of judicature at Allahabad (Lucknow Bench), in second appeal No. 130 of 1975, dismissing the appeal and upholding the decree of the plaintiff respondent 's suit.
The plaintiff respondent Prem Behari Khare instituted suit No. 42 of 197 1 in the court of Civil Judge, Mohanlal Gun j, Lucknow praying for the reliefs, inter alia, that he be declared to be the sole and real owner of the suit house, and that the defendant appellant be permanently restrained from transferring the suit house.
The learned Civil Judge, Lucknow, by his judgment dated 133.1974 decreed the suit declaring the plaintiff to be the sole and real owner of the suit house and permanently restraining the defendant from transferring the suit house to any other person.
On first appeal by the defendant appellant the learned Additional District Judge; Lucknow by his judg 627 ment dated 23.12.1974 dismissed the appeal agreeing with the findings of the trial court that it was the plaintiff re spondent who paid the consideration and purchased the suit house benami in the name of tile defendant appellant who, therefore, had no right to create any equitable mortgage or to transfer the suit house.
The defendant appellant 's second appeal thereafter was also dismissed by the High Court of Judicature at Allahabad by the impugned judgment dated 27.3.1978.
Hence this appeal by special leave.
Mr. A.B. Rohtagi learned counsel for the appellant submitS, inter alia, that the learned courts below erred in holding that the suit house was not gifted by the plaintiff to the defendant but was held benami in her name; and that even if it was so held benami, the subsequent legislation, namely, the Benami Transactions (Prohibition) Act 1988, has put a complete bar to the plaintiff 's suit against the defendant in respect of the suit house.
Mr. Yogeshwar Prasad learned counsel for the respondent refutes submitting that the issues on gift and benami have been concluded by concurrent findings of fact of the learned courts below; and that the plaintiff 's right to the benami suit house having already become final, it will not be affected by the subsequent Act.
The first question, therefore, is whether or not to interfere with the concurrent findings of fact of the learned courts below.
It has been said in a series of deci sions that ordinarily this court in an appeal will not interfere with a finding of fact which is not shown to be perverse or based on no evidence, (Babu vs Dy.
Director, A.I.R. 1982 S.C. 756), but will interfere if material cir cumstances are ignored by the High Court.
Prasad vs Govin daswaray; , In Dhanjibhai vs State of Gujarat, ; it was observed that where a finding of fact has been rendered by a learned Single Judge of the High Court as a court of first instance and thereaf ter affirmed in appeal by an Appellate Bench of that High Court, this Court should be reluctant to interfere with the finding unless there is very strong reason to do so.
There is no reason why this should not apply to cases where the first appellate court was the district court.
It was noted in Ganga Bishan vs Jay Narayan, A.I.R. 1986 S.C. 441 that ordinarily this Court, under Article 136 of the Constitu tion, would be averse to interfere with concurrent findings of fact recorded by the High Court and the Trial Court.
But where there are material irregularities affecting the said findings or where the court feels that justice has failed and the findings are likely to result in unduly excessive hardship this court could not 628 decline to interfere merely on the ground that findings in question are findings on fact.
So also in Uday Chand Dutt vs Saibal Sen, A.I.R. 1988 S.C. 367 it was said that in an appeal by special leave under Article 136 of the Constitu tion of India where there are concurrent findings of the courts below this court is not called upon to reconsider the entire evidence in detail to ascertain whether the findings are justified.
In Ram Singh vs Ajay Chawla, A.I.R. 1988 S.C. 514 where the concurrent finding was that the appellants were in unauthorised occupation of premises of which the respondents were the owners this court did not interfere with the concurrent findings of fact.
Mr. Rohtagi lays emphasis on the facts, namely, that the plaintiff Prem Behari Khare 's wife having died in 1955 leaving behind two sons aged about 2 and 3 years respective ly, he faced great difficulties in managing the household, looking after his sons and carrying on his duties as employ ee of the Allahabad Bank; that under these circumstances he agreed to take in the defendant Mithilesh Kumari whose relation with her husband Ram Swarup was then estranged; that the relation between the plaintiff and the defendant come to be such that she bore two children to him; that there were efforts to legalise their de facto living as man and wife by obtaining defendant 's divorce from her husband, and in fact there was a decree for judicial separation in 1958; that the plaintiff had full confidence in, and affec tion towards the defendant; and that in the court he could give no reason why he purchased the house in the name of the defendant.
Under those circumstances, counsel submits, the purchase of the suit house in the name of the defendant was made for Rs.8,000 out of which Rs.2,000 contributed by the defendant, and the learned courts below ought, therefore, to have held the transaction of purchase in the name of defend ant to have been a genuine gift out of love and affection and not a benami purchase in her name.
Perusing the judgment of the Trial Court we find that whether the transaction was a benami or it was a genuine gift by the plaintiff to the defendant were main issues on which parties led evidence.
The averment that the defendant contributed Rs.2,000 towards purchase price was disbelieved by both the courts below.
The plaintiff respondent proved from the statement of his Savings Bank account of Allahabad Bank, Exts.
6, 7 and 8, that he withdrew Rs.8,250 on 8.11.1962 and stated in witness box that he purchased the suit house in the name of the defendant by sale deed execut ed on 8.11.1962 which was registered on 9.11.1962.
The plaintiff respondent has since been staying in the suit house.
As the two were living as man and wife the 629 custody of the sale deed was not very material.
We thus find that the concurrent findings are based on reasonable appre ciation of evidence on record and, therefore, can in no way be said to be perverse or unreasonable.
Counsel criticises the observation of the High Court that the relation between the two was of a rather objectionable nature.
We do not think that this observation was unwarranted or it had in any way prejudiced the defendant 's case.
The High Court has analysed the facts and correctly applied the tests to deter mine whether the transaction was benami or not discussing the case law.
We do not find any justification in the appeal under Article 136 of the Constitution of India to interfere with the concurrent findings of fact.
The next question is whether despite the decree in favour of the plaintiff respondent his suit or action will be affected by the subsequent legislation, namely, the Benami Transactions (Prohibition) Act, 1988 and its prede cessor Ordinance.
In other words, whether the effectuation of the decree has been barred.
For this it is relevant to note that the impugned High Court judgment was dated 27.3.1978.
The first appellate court 's judgment was dated 23.12.1974, the trial court judgment dated 13.3.1974 and the suit was filed in 1971.
The special leave to appeal was granted by this Court on 15.11.1978.
The Benami Transactions (Prohibition of the Right to Recover Property) Ordinance, 1988, hereinafter referred to as 'the Ordinance ', was pro mulgated on May 19, 1988 to come into force at once.
The Benami Transactions (Prohibition) Act, 1988 (Act No. 45 of 1988), hereinafter referred to as 'the Act ', received the asset of the President of India on September 5, 1988.
The provisions of Sections 3, 5 and 8 of the Act came into force at once on that date and the remaining provisions were to be deemed to have come into force on 19th day of May 1988.
It is an Act to prohibit benami transactions and the right to recover property held benami and matters connected therewith or incidental thereto.
Mr. Rohtagi submits that provisions of the Act cover past benami transactions also and that to hold so it would be permissible for this Court to refer to the 57th Report of the Law Commission of India wherein it was suggested that the legislation should not be applied to past transactions but the Parliament did not accept that suggestion, and made the law applicable to past transactions also.
Learned counsel for the respondent Submits that the provisions of the Act are prospective and not retrospective, and as such would not affect the respondent 's established right to the benami property.
He has not controverted that this Court can refer to Law Commission 's Report.
630 To decide the controversy the relevant provisions of the Act may be referred to.
As defined in section 2(a) of the Act "Benami Transaction" means any transaction in which property is transferred to one person for a consideration paid or provided by another person.
As defined in section 2(c) of the Act "property" means property of any kind, whether movable or immovable, tangible or intangible and includes any right or interest in such property.
There can, therefore, be no doubt that the transaction by which the suit house was transferred to the defendant appellant for Rs.8,000 paid or provided by the plaintiff respondent would be a benami transaction if this law is applicable to it.
There is also no doubt that the suit house being a tangible immovable would be included within this definition of 'property '.
Section 3 of the Act prohibits benami transactions by pro viding: "(1) No person shall enter into any benami transaction.
(2) Nothing in sub section (1) shall apply to the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed, unless the contrary is proved that the said property had been purchased for the benefit of the wife or the unmarried daughter.
(3) Whoever enters into any benami transaction shall be punishable with imprison ment for a term which may extend to three years or with fine or with both.
(4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence under this section shall be non cognisable and bailable.
" The appellant having not been wife or unmarried daughter of the respondent the exception in (2) will not be applica ble.
Section 4 prohibits the right to recover property held benami by providing: "(1) No suit, claim or action to enforce any right in resspect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property.
631 (2) No defence based on any right in respect of any property held benami, whether against the person m whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property.
" Having upheld the finding that the suit house has been held benami by the respondent in the name of the appellant, the question is whether to this transaction the Act shall be applicable.
The Act has not been made retrospective by any specific provision.
Is it permissible to refer to the Law Commission 's Report to ascertain the legislative intent behind the provision? We are of the view that where a par ticular enactment or amendment is the result of recommenda tion of the Law Commission of India, it may be permissible to refer to the relevant report as in this case.
What impor tance can be given to it will depend on the facts and cir cumstances of each case.
In Santa Singh vs State of Punjab, [1977] 1 S.C.R. 229 Fazal Ali, J. in order to answer the question whether the non compliance with the provisions of section 235(2) of the Criminal Procedure Code, 1973 vitiated the sentence passed by the court considered it necessary to trace the historical background and social setting under which section 235(2) was inserted for the first time in the 1973 Code and referred to the research done by the Law Commission which made several recommendations in its 48th Report for revolutionary changes in the provision.
The Statement of Objects and Reasons were also referred to in that context.
In the instance case we find that way back in 1972 the Government of India consid ered it necessary to request the Law Commission of India to examine the problem of benami held property with a view to determining whether benami transactions should be prohibit ed.
The Law Commission accordingly submitted its 57th Report on benami transactions on 7.8.1973 after studying benami system as operating in India and in England.
It also exam ined implications of the provisions of the Indian Trust Act, 1882 and other statutory modifications of the Benami Law as contained in the Code of Civil Procedure, the Transfer of Property Act, the Indian Penal Code and the Income tax Act.
It also suggested in its Report the following draft of proposed legislation: 6.33 Recommendation: In the light of the above discussion, we recommend the enactment of a separate law containing the following legislative provisions: 632 "(1) No suit to enforce any right in respect of any property held benami against the person in whose name the, property is held or against any other person shall be institut ed in any court by or on behalf of a person claiming to be the real owner of such proper ty.
(2) In any suit, no defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any court by or on behalf of a person claiming to be the real owner of such property.
(3) Nothing in this section shall apply: (a) whether the person in whose name the property is held is a manager of, or a co parcener in, a Hindu undivided family, and the property is held for)he benefit of the co parceners in the family, or (b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity." On 19th May 1988, the President of India promulgated the Benami Transactions (Prohibition of the Right to Recover Property) Ordinance, 1988 (No. 2 of 1988) "to prohibit the right to recover property held benami and for matters con nected therewith and incidental thereto" based on the sug gestion of the Law Commission of India made as far back as in 1973.
With this Ordinance the judicial acceptance of benami transactions was being removed with a view to help people to keep property they were holding for others.
It remedied the age old doctrine of benami and made a benamidar the real owner in law, of course with few exceptions.
The Ordinance was referred by the Government on July 22, 1988 to the Law Commission of India requesting the latter to take up the question of benami transactions for detail examination and to give its considered views as early as possible so that a Bill to replace the Ordinance could be drafted on the basis of its recommendations and got passed before the close of the Monsoon Session of the Parliament.
633 The 130th Report of the Law Commission was submitted to the Government on August 14, 1988.
The Benami Transactions (Prohibition) Bill, 1988, drafted after getting the report, was introduced in the Rajya Sabha on 31st August, 1988 and the Bill was passed.
The Law Commission devoted several pages to justify retrospective legislation and its view was that the legislation replacing the Ordinance should be retroactive in operation and that no locus penitentia need be given to the person who had entered in the benami trans actions in the past.
It reported at para 3.18 as follows: "3.18.
Therefore, viewed from either angle, the Law Commission is of the firm opinion that the legislation replacing the ordinance should be retroactive in operation and that no locus penitentia need be given to the persons who had entered into benami transactions in the past.
They had notice of one and a half dec ades to set their house in order.
No more indulgence is called for.
" However, the court has to interpret the language used in the Act, and when the language is clear and unambiguous it must.
be given effect to.
Law Commission 's Reports may be referred to as external aid to construction of the provi sions.
It may be noted that the Act is a piece of prohibito ry legislation and it prohibits benami transactions subject to stated exceptions and makes such transactions punishable and also prohibits the right to defences against recovery of benami transactions as defined in section 2(a) of the Act.
The Parliament has jurisdiction to pass a declaratory legis lation.
As a result of the provisions of the Act all proper ties held benami at the moment of the Act coming into force may be affected irrespective of their beginning, duration and origin.
This will be so even if the legislation is not retrospective but only retroactive.
The learned counsel for the respondent rightly submits that the Act contains no specific provision making its operation retrospective.
The Law Commission itself observed that democratic culture abhors ex post facto legislation and that it was necessary .to curb unlawful nefarious uses of property.
We read in Maxwell that it is a fundamental rule of English Law that no statute shall be construed to have retrOspective operation Unless such a construction appears very clearly at the time of the Act, or arises by necessary and distinct implication.
A retrospective operation is, therefore, not to be given to a statute so as to impair existing right 634 or obligation, otherwise than as regards matter of procedure .unless that effect cannot be avoided without doing violence to the language of the enactment.
Before applying a statute retrospectively the Court has to be satisfied that the statute is in fact retrospective.
The presumption against retrospective operation is strong in .cases in which the statute, if operated retrospectively, would prejudicially affect vested rights or the illegality of the past transactions, or impair contracts, or impose new duty or attach new disability in respect of past transac tions or consideration already passed.
However, a statute is not properly called a retrospective statute because a part of the requisites for its action is drawn from a time an tecedent to its passing.
We must look at the general scope and purview of the statute and at the remedy sought to be applied, and consider what was the former State of Law and what the legislation contemplated.
Every law that takes away or impairs rights vested agreeably to existing laws is retrospective, and is generally unjust and may be oppres sive But laws made justly and for the benefit of individu als and the community as a whole, as in this case, may relate to a time antecedent to their commencement.
The presumption against retrospectivity may in such cases be rebutted by necessary implications from the language em ployed in the statute.
It cannot be said to be an invariable rule that a statute could not be retrospective unless so expressed in the very terms of the section which had to be construed.
The question is whether on a proper construction the legislature may be said to have so expressed its inten tion.
Craise on Statute Law, 7th Ed. writes that the general rule of law that statutes are not operated retrospectively may be departed from (a) by express enactment and (b) by necessary implication from the language employed, and the author goes on to say: "If it is a necessary implication from the language employed that the legislature intend ed a particular section to have a retrospec tive operation, the courts will give it such an operation.
"Baron Parke," said Lord Hather ley in Pardo vs Bingham, did not consider it an invariable rule that a statute could not be retrospective unless so expressed in the very terms of the section which had to be con strued, and said that the question in each case was whether the legislature had suffi ciently expressed that intention.
In fact, we must look to the general scope and purview of the statute, and at the remedy sought to be applied, and consider what was the former state of the law, what it was that the legis lature contemplated.
" But a statute is not to be read retrospectively except of necessity .
In Main vs 635 Stark, Lord Selborne said: "Their lordships, of course do not say that there might not be something in the context of an Act of Parlia ment, or to be collected from its language, which might give towards prima facie prospec tive a larger operation, but they ought not to receive a larger operation unless you find some reason for giving it .
In all cases it is desirable to ascertain the intention of the legislature." He went on: "Words not requiring a retrospec tive operation, so as to affect an existing statute preudicially, ought not to be so construed", but in Renold vs Att.
for Novo Scotia it was held that this rule did not extend to protect from the effect of a repeal a privilege which did not amount to an accrued right.
" (pp. 392 393) As defined in Section 2(a) of the Act "benami transac tion" means any transaction in which property is transferred to one person for a consideration paid or provided by any other person.
" A transaction must, therefore, be benami irrespective of its date or duration.
Section 3, subject to the exceptions, states that no person shall enter into any benami transaction.
This section obviously cannot have retrospective operation.
However, section 4 clearly provides that no suit, claim or action to enforce any right in re spect of any property held benami against the person in whose name the property is held or against any other person shall lie, by or on behalf of a person claiming to be real owner of such property.
This naturally relates to past transactions as well.
The expression "any property held benami" is not limited to any particular time, date or duration.
Once the property is found to have been held benami, no suit, claim or action to enforce any right in respect thereof Shall lie.
Similarly, sub section (2) of section 4 nullifies the defences based on any right in respect of any property held benami whether against the person in whose name the property is held or against any other person in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property.
It means that once a property is found to have been held bena mi, the real owner is bereft of any defence against the person in whose name the property is held or any other person.
In other words in its sweep section 4 envisages past benami transactions also within its retroactivity.
In this sense the Act is both a penal and a disqualifying statute.
In case of a qualifying or disqualifying statute it may be necessarily retroactive.
For example when a Law of Represen tation declares that all who have attained 18 years shall be eligible to vote, those who attained 18 yearS in the past would be as much eligible as those who 636 attained that age at the moment of the law coming into force.
When an Act is declaratory in nature .the presumption against retrospectivity is not applicable.
Acts of this kind only declare.
A statute in effect declaring the benami transactions to be unenforceable belongs to this type.
The presumption against taking away vested right will not apply in this case inasmuch as under law it is the benamidar in whose name the property stands, and law only enabled the real owner to recover the property from him which right has now been ceased by the Act.
In one sense there was a right to recover or resist in the real owner against the benami dar.
Ubi jus ibi remedium.
Where there is a right, there is a remedy.
Where the remedy is barred, the right is rendered unenforceable.
In this sense it is a disabling statute.
All the real owners are equally affected by the disability provision irrespective of the time of creation of the fight.
A right is a legally protected interest.
The real owner 's fight was hitherto protected and the Act has resulted in removal of that protection.
When the law nullifies the defences available to the real owner in recovering the benami property from the benam idar the law must apply irrespective of the time of the benami transactions.
The expression "shall lie" in section 4(1) and "shall be allowed" in section 4(2) are prospective and shall apply to present (future stages) and future suits, claims or actions only.
This leads us to the question wheth er there was a present suit between the plaintiff respondent and the defendant appellant on the date of the law coming into force.
We have noted the dates of filing the suit and judgments of the courts below.
On the date of the section 4 of the Act coming into force, that is, 19th May 1988 this appeal was pending and, of course, is still pending.
Can the suit itself be said to be pending? Lachmeshwar vs Keshwar Lal, A.I.R. 1941 F.C. 5 is an authority for holding that the hearing of appeal under the procedural law of India is.in the nature of re hearing and therefore in moulding the relief to be granted in a case on appeal, the appellate court is entitled to take into account even facts and events which have come into existence after the decree appealed against.
Consequently, the appellate court is competent to take into account legislative changes since the decision under appeal was given and its powers are not confined only to see whether the lower court 's decision was correct according to the law as it stood at the time when its decision was given.
Once the decree of the High Court has been appealed against, the matter became sub judice again and thereafter this court had seisin of the whole case, though for certain purposes e.g., execution, the decree was regarded as final and the courts below retained jurisdiction in that regard.
This was followed 637 in Shyabuddinsab vs The Gadag Betgeri Municipal Borough, ; where after the judgment of the High Court and after grant of special leave by this court the legislation was passed, and it was applied by this Court.
Their lordships, referring to The King vs The General Com missioner of Income Tax, and Mukharjee Official Receiver vs Ramratan Kaur, [1935] L.R. 63 I.A. 47 rejected the contention that unless there are express words in the amending statute to the effect that the amendment shall apply to pending proceedings, it cannot affect the proceedings.
In Dayawati vs Inderjit, ; it has been held that the word 'suit ' includes an appeal from the judgment in the suit.
The only difference between a suit and an appeal is that an appeal only reviews and corrects and proceedings in a cause already constituted but does not create the cause.
1n Mohanlal Jain vs His Highness Maharaja Shri Man Singh, [1962] 1 S.C.R. 702 it was observed that "A person is "sued" not only when the plaint is filed against him, but is "sued" also when the suit remained pending against him.
The word "sued" covers the entire proceeding, in an action." In Amerjit Kaur vs Pritam Singh, it has been held that an appeal is a reheating and in moulding relief to be granted in a case on appeal, the appellate court is entitled to take into account even facts and events which have come into existence after the passing of the decree appealed against.
For the respondent it is submitted that right of the parties to a suit would be determined on the basis of rights available to them on the date of filing of the suit.
Reli ance is placed on Nand Kishore Marwah vs Samundri Devi, ; That however was a case of eviction where the rights of the parties on the date of suit were material unlike in this case where subsequent legislation has nullified the defences of benami holders.
That case is, therefore, distinguishable.
Counsel for the respondent lastly submits that nobody should be allowed to suffer for fault of the court.
As the maxim goes, actus curiae neminem gravabit.
Nobody should suffer for an act of the court.
However, the delay in dis posal of an appeal cannot be termed an action of the court.
The consequence is that the plaintiff respondent 's suit or action cannot be decreed under the law; and hence the decree passed by the lower courts is annihiliated and the suit dismissed.
In .the result, this appeal is allowed in the manner indicated above.
Under the peculiar facts and circumstances of the case, we make no order as to costs.
N.P.V. Appeal allowed.

summary:
The respondent filed a suit in the Court of Civil Judge, praying that he be declared the sole and real owner of the suit house and that the appellant be permanently restrained from transferring the suit house.
The trial court decreed the suit accordingly.
The appellant filed an appeal before the Additional District Judge, who dismissed the same, agreeing with the findings of the trial court that the respondent had paid the price and purchased the house benami in the name of the appellant and therefore, the appellant had no right to create an equitable mortgage or to transfer the suit house.
The appellant 's second appeal was also dismissed by the High Court.
Hence, the appeal by special leave, by the appellant.
During the pendency of the appeal, the 622 Benami Transactions (Prohibition) Act, 1988 came into force.
It was contended on behalf of the appellant that the respondent and the appellant had been living as man and wife and out of affection for the appellant, the respondent had purchased the suit house in the appellant 's name for Rs.8,000, for which the appellant had contributed Rs.2,000 and, therefore, the courts below had erred in holding that the suit house was not gifted by the respondent to the appellant but was held benami in her name, and that even if it was so held benami, the subsequent legislation, namely, the Benami Transactions (Prohibition Act, 1988 had put a complete bar to the respondent 's suit against the appellants in respect of the suit house.
On behalf of the respondent, it was submitted that the issues on gift and benami have been concluded by concurrent findings of fact of the courts below and that the respond ent 's right to the benami suit house having already become final it would not be affected by the subsequent Act.
On the questions: (a) whether the concurrent findings of fact of the courts below should be interfered with or not, (b) whether despite the decree in favour of the respondent, the suit or action would be affected by the subsequent legislation, namely, the Benami Transactions (Prohibition) Act, 1988 and its predecessor Ordinance, (c) whether, on a proper construction, the legislature may be said to have expressed its intention of retrospective applicability of the legislation, and (d) whether there was a suit present between the respondent and the appellant on the date of the law coming into force, Allowing the appeal, this Court, HELD: 1.1 A retrospective operation is not to be given to a statute, so as the impair existing right or obligation otherwise than as regards matter of procedure unless that effect cannot be avoided without doing violence to the language of the enactment.
The presumption against retro spective operation is strong in cases in which the statute, if operated retrospectively, would prejudicially affect vested rights or the illegality of the past transactions, or impair contracts or impose new duty or attach new disability in respect of past transactions or consideration already passed.
However, a statute is not properly called a retro spective statute because a part of the requisites for its action is drawn from a time antecedent to its passing.
[633H; 634A C] 623 1.2 Every law that takes away or impairs rights vested agreeably to existing laws is retrospective, and is general ly unjust and may be oppressive.
But laws made justly and for the benefit of individuals and the community as a whole may relate to time antecedent to their commencement.
The presumption against retrospectivity may in such cases be rebutted by necessary implication from the language employed in the statute.
It cannot be said to be an invariable rule that a statute could not be retrospective unless so ex pressed in the very terms of the section which has to be construed.
The question is whether on a proper construction, the legislature may be said to have so expressed its inten tion.
[634C E] 1.3 Before applying a statute retrospectively, the court has to be satisfied that the statute is in fact retrospec tive.
The Courts must also look at the general scope and purview of the statute and at the remedy sought to be ap plied and consider what was the former state of law and what the legislation contemplated.
[634A B] Craise on Statute Law, 7th ed.
referred to.
1.4 Where a particular enactment or amendment is the result of the recommendation of the Law Commission of India, it may be permissible to refer to the relevant report.
What importance can be given to it will depend on the facts and circumstances of the case.
However, the court has to inter pret the language used in the Act and when the language is clear and unambiguous, it must be given effect to.
Law Commission 's Report may be referred to as external aid to construction of the provisions.
[631C; 633D] Santa Singh vs State of Punjab, [1977] 1 S.C.R. 229referred to.
In the instant case, the Law Commission was of the view that the legislation replacing the Benanti Transactions (Prohibition of Right to Recover Property Ordinance, 1988) should be retroactive in operation and that no locus peni tentia need be given to the persons who had entered in the benami transactions in the past.
[633B] 2.1 When an Act is declaratory in nature, the presump tion against retrospectivity is not applicable.
Acts of this kind only declare.
A statute in effect declaring the benami transactions to be unenforceable belongs to this type.
[636A B] 2.2 The Parliament has jurisdiction to pass a declaratory legisla 624 tion.
As a result of the provisions of the Benami Transac tions (Prohibition) Act, 1988, all properties held benami at the moment of the Act coming into force may be affected irrespective of their beginning, duration and origin.
This will be so even if the legislation is not retrospective, but only retroactive.
[633E F] 2.3 The expression "any property held benami" in section 4 of the Act is not limited to any particular time, date or duration.
Once the property iS found to have been held benami, no suit, claim or action to enforce any right in respect thereof shall lie, and the real owner is bereft of any defence against the person in whose name the property is held or any other person.
In its sweep, section 4 envisages past benami transactions also within its retroactivity.
In this sense, the Act is both a penal and a disqualifying statute.
In Case of a qualifying or disqualifying statute, it may be necessarily retroactive.
[635E H] 2.4 The presumption against taking away vested right will not apply in this case inasmuch as under law it is the benamidar in whose name the property stands, and law only enabled the real owner to recover the property from him which right has now been ceased by the Act.
In one sense there was a right to recover or resist in the real owner against the benamidar.
Ubi jus ibi remedium.
When there is a right, there is a remedy.
Where the remedy is barred, the right is rendered unenforceable.
In this sense it is a disabling statute.
All the real owners are equally affected by the disability provision irrespective of the time of creation of the right.
A right is a legally protected inter est.
The real owner 's right was hitherto protected and the Act has resulted in removal of that protection.
[636B C] 2.5 When the law nullifies the defences available to the real owner in recovering the benami property from the benam idar, the law must apply irrespective of the time of the benami transactions.
The expression "shall lie" in section 4(1) and "shall be allowed" in section 4(2) are prospective and shall apply to present (future stages) and future suits, claims or actions only.
[636D] 3.
The hearing of appeal under the procedural law of India is in the nature of re hearing and, therefore, in moulding the relief to be granted in a case on appeal, the appellate court is entitled to take into account even facts and events which have come into existence after the decree appealed against.
Consequently, the appellate court is competent to take into account legislative changes since the decision under appeal was given and its powers are not confined only to see whether the 625 lower court 's decision was correct according to the law as it stood at the time when its decision was given.
[636F G] Once the decree of the High Court has been appealed against, the matter became sub judice again and, therefore, the Supreme Court had seisin of the whole case, though for certain purposes, e.g. execution, the decree was regarded as final and the courts below retained jurisdiction in that regard.
[636G H] Lachmeshwar vs Keshwar Lal A.I.R. 1941 F.C. 5; Shyabud dinsab vs The Gadag Betgeri Municipal Borough; , ; The King vs The General Commissioner of income Tax, ; Mukharjee Official Receiver vs Ramratan Kaur.
[1935] L.R. 63 I.A. 47; Dayawati vs Inderjit, ; ; Mohanlal Jain vs
His Highness Maharaja Shri Man Singh, [1962] 1 S.C.R. 702 and Amerjit Kaur vs Pritam Singh, relied upon.
Nand Kishore Marwah vs Samundri Devi, [1987] 4 S.C.C. 382 distinguished.
Ordinarily, this Court in an appeal will not inter fere with a finding of fact which is not shown to be per verse or based on no evidence.
But where there are material irregularities affecting the said finding or where the court feels that justice had failed and the finding is likely to result in unduly excessive hardship, this Court cannot decline to interfere merely on the ground that the finding in question is finding of fact.
[627E, H; 628A] Babu vs Dy.
Director, A.I.R. 1982 S.C. 756; Prasad vs Govindaswamy; , ; Dhanlibhai vs State of Gujarat, ; ; Ganga Bishan vs Jay Narayan, AIR 1986 SC.
441; Udaychand Disst vs Saihal Sen, A.I.R. 1988 S.C. 367 and Ram Singh vs Ajay Chawla AIR 1988 S.C. 514 relied upon.
In the instant case, the concurrent findings of the courts below are based on reasonable appreciation of evi dence on record and, therefore, can in no way be said to be perverse or unreasonable.
The High Court has analysed the facts and correctly applied the tests to determine whether the transaction was benami or not.
Therefore, there is no justification in tile appeal under article 136 of the Constitu tion for interference with the concurrent findings of fact.
[629A C] However, in view of the pendency of the appeal before the Supreme Court, and consequently, the suit filed by the respondent, on 626 the date of coming into force of section 4 of the Benami Transac tions (Prohibition) Act, 1988, which nullified the defences available to the real owner in recovering the benami proper ty from the benamidar, and since the law was applicable irrespective of the time of the benami transactions, the respondent 's suit or action for recovering the suit house held benami by the appellant cannot be decreed.
[636D E] No doubt, nobody should suffer for an act of the Court, but delay in disposal of an appeal cannot be termed an action of the court.
Hence the maxim actus curiae nemenim gravabit is not applicable in this case.
[637F G] The decree passed by the lower courts is, therefore, annihilated and the suit filed by the respondent is dis missed.
[637G]


judgement:
Criminal Appeal No. 205 of 1989.
From the judgment and Order dated 24.2.1987 of the Bombay High Court in Crl.
W.P.No. 67 of 1986.
A.M. Khanwilkar for the Appellant.
Syed Ali Ahmad, Tanweer Ahmad, Mohan Pandey and Ms. J. Ahmed for the Respondent.
The Judgment of the Court was delivered by SHARMA, J.
1.
Special leave granted.
The respondent was served with an externment order passed under Section 56 of the Bombay Police Act (hereinaf ter referred to as the Act) directing him to leave the districts of Aurangabad and Jalna for a period of two years.
The order stated that from 11.5.1980 the respondent was found to be frequently engaged in illegal business of nar cotics and since he was involved in several cases of riot and criminal intimidation causing physical hurts to the residents of the locality on account of his suspicion that they were supplying information to the police about his illegal activities, witnesses were not willing to come forward and depose against him.
He filed an appeal under Section 60 of the Act and while the appeal was pending he moved the Bombay High Court with a writ application under Article 226 of the Constitution.
During the pendency of the writ application the State Government dismissed, the re spondent 's appeal by a short order.
The writ petitioner thereafter challenged the appellate order also in the pend ing writ case.
At the time of the final hearing of the writ case before the High Court, four points were raised on behalf of the petitioner.
As the 972 first point, it was urged that since the State Government omitted to give reasons in support of the order of dismissal of the appeal, the same was vitiated in law.
The High Court agreed with the petitioner and allowed the writ application quashing the appellate order as well as the initial extern ment order on this ground alone without going to the other questions.
The State Government has challenged the High Court judgment in the present appeal.
On behalf of the appellant reliance has been placed on the decision of this Court in Pandarinath Sridhar Rangne kar vs Deputy Commissioner of Police, where in a similar plea was taken by the appellant before this Court.
It was contended that the failure on the part of the State Government indicated non application of mind.
The appellant had also urged that the allegations contained in the show cause notice were too vague in absence of details to afford him reasonable opportunity to defend himself.
Rejecting the argument, this Court held that a full and complete disclosure of particulars, as is requisite in an open prosecution, will frustrate the very purpose of an externment proceeding.
There is a brand of lawless elements in society which it is impossible to bring to book by estab lished methods of judicial trial because in such trials there can be no conviction without legal evidence.
And legal evidence is impossible to obtain, because out of fear of reprisal witnesses are unwilling to depose in public.
While dealing with the contention that the State Government was under a duty to give reasons in support of its order dis missing the appeal, the point was rejected in the following terms: "Precisely for the reason for which the pro posed externee is only entitled to be informed of the general nature of the material allega tions, neither the externing authority nor the State Government in appeal can be asked to write a reasoned order in the nature of a judgment.
" As observed, if the authorities were to discuss the evidence in the case, it would be easy to fix the identity of the witnesses who were unwilling to depose in public against the proposed externee.
A reasoned order containing a discussion would probably spark off another round of harassment.
We are, therefore, of the view that the High Court was in error in quashing the order as confirmed by the state Government in appeal.
The externment order was made several years back and the learned counsel for the appellant rightly stated that although the 973 impugned order need not be revived now, it was necessary to correct the error in the High Court 's judgment as it is likely to prejudice ' other similar cases.
Accordingly in the circumstances we set aside the impugned judgment but make it clear that the externment order shall not be enforced against the respondent any further, the appeal is according ly allowed to this extent.
R.S.S. Appeal al lowed.

dataset_name: IN-Abs

summary:
An externment order was passed against the respondent under section 56 of the Bombay Police Act on the ground that he was found to be frequently engaged in illegal business of narcotics and was also involved in several cases of riot and criminal intimidation.
The respondent filed an appeal under section 60 of the Act and while the appeal was pending moved the High Court with a writ application.
The State Government dismissed the appeal by a short order.
Before the High Court it was urged that since the State Government omitted to give reasons in support of the order of dismissal of the appeal, the same was vitiated in Law.
The High Court agreed with the petitioner and allowed the writ application quasing the appellate order as well the initial externment order.
Allowing the appeal by the State to the extent of cor recting the error of law only, it was, HELD: (1) The High Court was in error in quashing the order of externment as confirmed by the State Government in appeal, on the ground that the State Government omitted to give reasons.
(2) A full and complete disclosure of particulars, as is requisite in an open prosecution, will frustrate the very purpose of an externment proceeding.
There is a brand of lawless elements in society which it is impossible to bring to book by established methods of judicial trial because in such trials there can be no conviction without legal evi dence.
And legal evidence is impossible to obtain, because out of fear of reprisal witnesses are unwilling to depose in public.
[972C E, G] 971 (3) If the authorities were to discuss the evidence in the case, it would be easy to fix the identity of the wit nesses who were unwilling to depose in public against the proposed externee.
A reasoned order containing a discussion would probably spark off another round of harassment.
[972G] Pandarinath Sridhar Rangnekar vs Deputy Commissioner of Police, , followed.


judgement:
ivil Appeal Nos.
1909 10 of 1989.
From the Judgment and Order dated 2.4.1987 of the Del hi High Court in C.C.P. Nos. 82 and 176 of 1986.
WITH CIVIL APPEAL NO.
19 11 OF 1989.
From the Judgment and Order dated 2.4.1987 of the Del hi High Court in C.C.P. No. 82 of 1986 in C.W. No. 44 of 1975 .
K. Parasaran, Attorney General, K.K. Venugopal, F. section Nariman, Gopal Subramaniam, C.V.S. Rao, P. Parmeshwara n, C.S. Vaidyanathan, S.R. Bhat, S.R. Setia, G.D. Gupta, Ash ok K. Mahajan and section Ravinder Bhat for the appearing parties.
The Judgment of the Court was delivered by DUTT, J.
Special leave granted in all these matter section Heard learned Counsel for the parties.
The dispute between the direct recruits and the Emergency 16 Commissioned Officers (ECOs) in the Central Reserve Poli ce Force (CRPF) over the question of seniority has been goi ng on for a long time.
The Delhi High Court has, ultimatel y, held in favour of the ECOs and by the impugned judgment, t he High Court has directed the implementation of its decisi on regarding seniority and grant of consequential benefits to the ECOs.
As per the judgment of the High Court, the 37 dire ct recruits, who are now holding the posts of Commandants, th at is to say, 22 as Commandants (Selection Grade) and 15 as Commandants (NonSelection Grade), by virtue of the upgrad a tion of 88 posts of Commandants (Non Selection Grade), wi ll have to be reverted.
The direct recruits feel aggrieved by the impugned judgment of the High Court and it is contend ed on their behalf that as they were not parties in the co n tempt proceedings in which the impugned judgment of the Hi gh Court has been passed, it is not binding on them, and th at the matter should be remanded to the High Court so as to give them an opportunity of being heard.
If these conte n tions of the direct recruits are accepted, there will be further delay.
It may be mentioned that this is the second time th at the matter has come to this Court.
It is the desire of t he parties that the dispute should be amicably settled an d, pursuant to that desire, the parties including the Union of India had, from time to time, given their respective sugge s tions regarding the terms of settlement.
Unfortunately, t he suggestions or the proposed terms of settlement were n ot accepted by one party or the other.
The terms that we re suggested by the Union of India were not acceptable to t he ECOs and those of the ECOs were not acceptable to the dire ct recruits.
It is gratifying to state that at the last heating, bo th the direct recruits and the ECOs came with an agreed ter ms of settlement.
The hearing was adjourned so as to enable t he Union of India to consider the terms of settlement as agre ed to by the direct recruits and the ECOs.
Mr. Gopal Subramaniam, the learned Counsel appearing on behalf of the Union of India, states that although the Uni on of India is also of the view that the dispute between t he parties should be resolved amicably, yet the said agre ed terms of settlement were not acceptable to it and it has, in lieu of the same made two alternative suggestions for se t tlement.
Copies of the alternative suggestions have be en produced before us by Mr. Subramaniam.
Neither of the alte r na 17 tive suggestions is, however, acceptable to the ECOs.
We have considered the respective terms of settlement as put forward by the parties including the said two altern a tive suggestions.
CRPF is a sensitive police force and the re should not be any dispute and differences among the membe rs of such force.
It is the duty of the Government to mainta in peace and harmony in the force by trying to resolve a ny dispute among the members of the force in public interest.
After considering the facts and circumstances of t he case including the impugned judgment of the High Court a nd the terms of settlement, as agreed to by the direct recrui ts and the ECOs, and also the alternative suggestions of t he Union of India, we are of the view that the terms of settl e ment, as agreed to by the direct recruits and the ECO s, appear to be fair and reasonable and do not involve a ny additional financial liability of the Union of India f or placing the 35 ECOs in the posts of Commandants (Selecti on Grade) with effect from the date they were promoted as Commandants (Non Selection Grade), as provided in the agre ed terms of settlement.
On an examination of the two altern a tive suggestions made on behalf of the Union of India, we are of the view that they do not redress the grievances of the ECOs.
In our opinion, while it may be desirable that t he present position of the direct recruits should be protecte d, the giving of such protection should not be to the prejudi ce of the ECOs.
In the circumstances, in order to establish peace a nd amity between the contending parties and for ends of ju s tice, we direct that, in modification of the impugned jud g ment of the High Court, the appeals be disposed of in a c cordance with the terms of settlement, as agreed to by t he direct recruits and the ECOs, as follows: 1.
The Union of India shall withdraw the order viz. ord er No. F.2/1O/86 Estt (CRPF) PP IV dated 18.6.1986 with immed i ate effect.
The order providing for upgradation of 88 pos ts of Assistant Commandant (2nd in command) to the post of Commandants (Non Selection Grade) shall thus stand rescin d ed.
The D.P.C. 1986 and all consequential orders regardi ng promotion against upgraded posts shall also stand revoked.
To protect the 37 direct recruits who were holdi ng posts of Commandants, the Union of India shall create 37 supernumerary posts of Commandants (22 as Commandant Selec 18 tion Grade and 15 as Commandant Non Selection Grade), whi ch shall be held by the 37 direct recruits who were holding t he said posts on the date of judgment dated 2.9.1985 passed by the High Court of Delhi.
The vacancies of 13 posts occurring in the year 19 86 of Commandant (Non Selection Grade) shall be filled afre sh by means of a D.P.C.
The D.P.C. shall make promotions in accordance with rules and shall operate upon the revis ed seniority list prepared by the Department pursuant to t he judgment of the High Court dated 2.9.1985 affirmed by th is Court on 21.1.1986.
The subsequent vacancies in the years 1987 and 19 88 for the posts of Commandants (Non Selection Grade) shall be filled in accordance with rules and the promotions shall be made through D.P.C. in accordance with law/Rules.
The Union of India shall review the D.P.C. of 1985 f or the posts of Commandants and such review shall be complet ed as early as possible.
Further, 35 ECOs who have already been promoted as Commandant (Non Selection Grade) till today will hold t he posts of Commandant (Selection Grade), from the date th ey were promoted as Commandant (Non Selection Grade) with t he condition that they will not be paid any salary for the po st of Commandant (Selection Grade) till their turn comes f or promotion to Commandant (Selection Grade) against regul ar vacancies, as per the seniority list.
Each party to bear his/its own costs.
Y.L. Appeals di s posed of.

summary:
Central Reserve Police Force comprises of officers dra wn from two channels, direct recruits and Emergency Commi s sioned Officers (ECOs).
There was dispute regarding fixati on of inter se seniority of these officers which was ultimate ly resolved by the Delhi High Court by the judgment und er appeal.
The High Court by the impugned judgment held in favour of ECOs and directed implementation of its decisi on regarding seniority as also grant of benefits to ECOs.
As a result of the High Court 's judgment 37 direct recruits, w ho are at present holding the posts of Commandants, that is to say, 22 as Commandants (Selection Grade) and 15 as Comma n dants (Non Selection Grade) by virtue of upgradation of 88 posts of Commandants (Non Selection Grade) will have to be reverted.
Being aggrieved by the High Court 's judgment, th ey have appealed to this Court, after obtaining Special Leave .
The main contention advanced by the appellants is th at as they were not parties in the Contempt Proceedings where in the High Court has rendered the judgment in question, th at order is not binding upon them and as such the matter be remitted back to the High Court.
To avoid delay that will be caused in the matter if the case is sent back, the Court as also the parties desired that the dispute be amicably se t tled.
Accordingly both the direct recruits and ECOs he ld negotiations amongst themselves with a view to arrive at an acceptable settlement and after a great deal of endeavou r, they put up the terms of agreement before the Court.
T he Court thereupon gave time to the Union of India to consid er the acceptability of the agreement reached between t he contesting parties.
The Union of India conveyed to the Cou rt that the agreement was not acceptable to it though it was in favour of amicable settlement.
It suggested two other alte r natives, which were not found to be favourable to ECOs.
15 This Court considered the respective terms of the se t tlement and disposing of the appeals in terms thereof, HELD:.
Central Reserve Police Force is a sensitive for ce and there should not be any dispute and differences amo ng the members of such force.
It is the duty of the Governme nt to maintain peace and harmony in the force by trying to resolve any dispute among the members of the force in publ ic interest.
[17B] While it may be desirable that the present position of the direct recruits should be protected, the giving of su ch protection should not be to the prejudice of the ECOs.
[17 E] In order to establish peace and amity between the co n tending parties and for ends of justice, the Court direct ed that in modification of the judgment of the High Court, t he appeals be disposed of in accordance with the terms of settlement, as agreed to by the direct recruits and t he ECOs, set out in this Court 's judgment hereinbelow.
[17E F ]


judgement:
vil Appeal Nos.
3073 16 of 1988 Etc.
From the Judgment and Order dated 8.6.1987 and 9.6.
1987 of the Andhra Pradesh High Court in W.P. Nos. 1370/87, 15090/85.34 18/ 86.
911/87, 3186/87, 3435/87, 3748/87, 4356/87, 5006/87 'and 5379 of 1987.
P.A. Choudhary, Shanti Bhushan, Badrinath, T.V.S.N. Chari, Mrs. Sunita Rao and A. Subba Rao for the Appellants.
A.S. Nambiar, T.S. Krishnamoorty, C. Sitaramayya, R.N. Keshwani, B. Kanta Rao, Ms. K. Sarda Devi, G.N. Rao and 13.
Parthasarthi, for the Respondents.
The Judgment of the Court was delivered by KULDIP SINGH, J.
The question for decision in these appeals is whether payment of less salary to a senior than his junior in the same cadre having the same pay scale is violative of the Principle of "equal pay for equal work" enshrined in Article 39(d) read with Articles 14 and 16 of Constitution of India.
Though the respondents belong to different departments and service but since, the question of law is same we are disposing these appeals by a common order.
Necessary facts relating to each batch of 1004 appeals for appreciating the controversy are as under: Civil Appeal Nos. 317 30/87, 2998/87, 294 298/88, 307 to 315/88, 305/ 88 & 3 16/88.
The first batch in this bunch of appeals is concerning the employees of the High Court of Andhra Pradesh.
The main judgment under appeal relates to the cadre of Assistant Section Officers working in the High Court.
Copyists and Assistants are the two feeder cadres to the post of Assist ant Section Officer.
Prior to 1974 copyists were in the pay scale of Rs.70~130 and were entitled to additional payment at Re.7.5p.
per every 100 words they copy in excess of 42,000 words.
As a result of pay revision they were given the pay scale of Rs.250 430 w.e.f. 1.1.1974 without entitle ment of remuneration in addition to pay.
The copyists repre sented that in the revised pay scale, the additional emolu ments which were being earned by them had not been taken into account.
On the recommendation of the High Court the State Government agreed to fix the pay of the copyists in the revised pay scale by adding into their basic pay the average remuneration of Rs.83.34 and the Dearness Allowance admissible thereon.
The amount of Rs.83.34 was taken as average remuneration which each of the copyist was earning prior to 1.1.
1974 in addition to the pay.
The pre revised pay scale of Assistants was Rs.90 192 which was revised to Rs.250 430 from 1st of January, 1974.
Although the revised pay scale of copyists and assistants was identical but because of addition of Rs.83 34 in the pay fixation, the copyists started drawing more salary than the assistants.
Promotion to the cadre of Assistant Section Officers in the pay scale of Rs.340 640 is from the two cadres of copyists and assistants.
One Janikirama Rao, a copyist, was promoted to the said post in the year 1984.
On the basis of his last pay drawn as copyist his basic pay fixed as Assistant Sec tion Officer, was higher than those who were promoted to the said post from the cadre of assistants during the period 1982 84.
The pay fixation was done under Fundamental Rule 22(a)(i) of Andhra Pradesh Fundamental Rules (hereinafter called 'Fundamental Rules '.) Though junior Shri Janikirama Rao was thus drawing more salary than his seniors in the same cadre.
Those seniors filed Writ Petition 2 135/83 in the High Court of Andhra Pradesh praying that the grant of higher salary to a junior person is violative of the Princi ple of "equal pay for equal work".
The learned Single Judge allowed the writ petition and directed that the Assistant Section Officers senior to Shri Janikirama Rao be paid the same salary as he was drawing.
Writ Appeal filed by the State of Andhra Pradesh against the judgment was dismissed by the Division Bench holding that grant of 1005 higher pay packet to a junior person that the senior under any circumstances is discriminatory.
Connected writ peti tions were allowed by the High Court being covered by the judgments in Writ Petition 2 135/83 and writ appeal.
No counter was filed by State of Andhra Pradesh in these writ petitions and on the basis of the averment in the petitions that juniors were getting higher salary than the seniors, the writ petitions were allowed.
Civil appeals are directed against the orders of the High Court.
Civil Appeal Nos. 1071 73/87, 1149 1150/86.
In this batch of civil appeals Tirumala Tirupathi Devas thanam is the appellant and these appeals are directed against the High Court order.
B.V. Krishnamurthy and 62 others working as Upper Division Clerks in the Devasthanam filed Writ Petition No. 12337 of 1984 before the High Court of Andhra Pradesh praying that the Devasthanam be directed to pay salary to them at par with one D. Gopaliah, Upper Division Clerk who was junior to them.
Service particulars of Gopaliah and one of the petitioners Krishnamurthy only need mention.
Gopaliah joined as Lower Division Clerk in 1967 and was given Selection Grade in 1974.
Family Planning Incentive Increment of Rs. 11 was added to his pay in 1977.
He was promoted as Upper Division Clerk in 1979 but was reverted in 1981 as he could not pass the accounts test.
He was given further increase in pay as a result of Government Order which provided higher pay to those Lower Division Clerks who completed 15 years service as such.
In June, 1983 Gopaliah was drawing Rs.811 as his basic pay in the cadre of Lower Division Clerks.
He was again promoted as Upper Divi sion Clerk in pay scale 575 950 on 1.7.
1983 and in that cadre his basic pay was fixed at Rs.861.
On the other hand, Krishnamurthy joined as Lower Division Clerk in 1970.
He was promoted as Upper Division Clerk on 3rd of November, 1981 and Rs.615 was fixed as his basic pay in that cadre.
On 1st of July, 1983 Krishnamurthy was drawing Rs.635 as his basic pay.
It is under these circumstances that Gopaliah though junior to Krishnamurthy started drawing higher pay as Upper Division Clerk.
The writ petition was allowed by the learned Single Judge by one line order following his decision in another writ petition concerning the employees of the Andhra Pradesh State Electricity Board.
Neither the facts nor the distinctive features of the present case were noticed.
Writ Appeal No. 504 of 1985 was dismissed in limine by the Divi sion Bench of the Andhra Pradesh High Court.
In three con nected petitions payparity was sought with the same junior Gopaliah.
In the fourth petition one Gangiah was the named junior for claiming pay hike.
All these 1006 petitions were allowed following the earlier decision.
Hence these appeals.
Civil Appeal Nos. 299/88 and 300 to 30 1/88.
These appeals are directed against the judgment of the Andhra Pradesh Administrative Tribunal in Petition No. 1531 of 1985 and connected petitions.
The petitioners before the Tribunal were junior assistants working in different depart ments.
They were promoted as senior assistants on various dates between 1976 and 1978.
They opted to be absorbed as auditors in the Pay and Accounts Office, Hyderabad, where they were finally absorbed with effect from 12th of July, 1978.
One Swaminathan who was recruited as typist, was promoted as senior assistant on 11th of January 1978.
He also opted to work as auditor in the Pay and Accounts Of fice, Hyderabad.
He was finally absorbed in the said depart ment with effect from 4th of September, 1978.
The writ petitioners and Swaminathan came to the Pay and Accounts Office, Hyderabad from different departments.
Since Swamina than was absorbed as auditor in the pay and accounts depart ment later in time than the petitioners, he ranked junior to them.
But in view of his length of service and grant of selection grade, he had been drawing higher pay in his parent department.
On his joining the Pay and Accounts Office his pay was fixed on a higher basic pay as compared to the petitioners as the last pay drawn by him had to be protected under the Fundamental Rules.
Thus though he was junior to the petitioners, he started drawing higher pay than them.
The seniors raised contention before the Tribunal that on the basis of "equal pay for equal work" they were entitled to the same pay as given to their junior.
The Tribunal allowed the petitions holding that for whatever reasons a junior is paid higher pay packet than his senior the principle of "equal pay for equal work" is violated and the senior is entitled to the same pay.
Following its judg ment the Tribunal allowed two connected petitions.
Hence these appeals by the State of Andhra Pradesh.
Civil Appeal No. 3 17 of 1988.
This appeal also relates to Pay and Accounts Office.
In this case the petitioners before the Tribunal were Lower Division Clerks senior to one P. Arunachala Prasad who was initially a typist but was promoted as Lower Division Clerk subsequent to the petitioners.
Since he was drawing more pay as typist, on his promotion to the post of Lower Division Clerk his pay fixed was higher than the petitioners.
The claim 1007 of the petitioners for same pay as paid to Arunachala Prasad was allowed.
Civil Appeal Nos.
200 to 203 of 1988.
These appeals relate to Animal Husbandry Department of the Andhra Pradesh Government.
Some live stock assistants filed a petition before the Andhra Pradesh Administrative Tribunal claiming higher pay which was being drawn by their respective juniors in the same cadre.
In the reply filed on behalf of State before the Tribunal it was explained that junior live stock assistants were senior in the lower cadre but could not be promoted earlier due to their failure to undergo the prescribed training and they had earned selec tion grade on the basis of length of service.
On promotion their basic pay was fixed under Fundamental Rules which came to be higher than their seniors.
Without considering the reasons for the disparity in pay the Tribunal allowed the petitions holding that the senior must be paid the same salary as his junior, in the cadre, was drawing.
Civil Appeal Nos. 2453, 2454 and 2476 to 2479 of 1988.
These appeals concern the office of Registrar Co opera tive Societies Andhra Pradesh.
Respondents inspectors filed a petition before the Andhra Pradesh Administrative Tribunal saying that one Jagmohan was junior to them but was drawing higher salary.
The Tribunal allowed the petition in the following words: "It may be true that in certain circumstances within the framework of the rule, Shri Jagmo han came to receive higher pay than his sen iors . . what will be done in such a case is to bring the pay of the senior on par with the junior.
It is how the 'principle of equity ' in pay is to be met." Five connected petitions were also allowed by the Tribunal.
Mr. Shanti Bhushan appearing for the appellants in the first batch has argued that so long as there is rational basis for giving higher pay to a junior in the same cadre, the seniors can have no grievance.
According to him copyists and assistants being two feeder cadres to the post of As sistant Section Officer, the last pay drawn in the lower cadre has to be the basis under the Fundamental Rule for fixation of pay in the cadre of Assistant Section Officers.
Since the copyists were draw 1008 ing higher pay than the assistants, they were rightly fixed at a higher pay than the assistants who were promoted earli er.
He says pay earned by the copyists before joining as Assistant Section Officer is a legitimate incident of serv ice which entitles them higher pay than their seniors.
Mr. P.A. Choudhary appearing for some of the appellants contended that if all the considerations, factors and inci dents of service are identical then only the principle of 'equal pay for equal work ' is attracted.
But if there is a justification under the Rules or otherwise for giving a higher pay to the junior then the principle in the abstract sense is not attracted.
Mr. T.S. Krishnamoorthy, Mr. A.S. Nambiar and Mr. Kanta Rao appearing for the respondents supported the judgments under appeals and contended that grant of higher pay to a junior in the same cadre, doing same work and shouldering same responsibilities, is per se discriminatory and viola tive of the principle of equal pay for equal work.
Our attention was invited to Rule 27 of the Fundamental Rules which permits the competent authority to grant pre mature increment to a Government servant on a time scale of pay.
They further contended that juniors getting higher pay than a senior in the same cadre is an anomaly causing heart burn which can be removed by directing the authorities to fix the seniors at par with the juniors by exercising power under Rule 27 of the Fundamental Rules.
The factual basis in all these appeals is identical.
The facts clearly show that in every case the pay fixation of the junior was done under the Fundamental Rules and there were justifiable reasons for fixing the junior at a higher pay than his seniors in the cadre.
It was not disputed that the said pay fixation was in confirmity with the Fundamental Rules.
Neither before us nor before the courts below the validity of Fundamental Rules was challenged by any of the parties.
Without considering the scope of these Rules and without adverting to the reasons for fixing the juniors at a higher pay, the High Court and the Tribunal have in an omnibus manner come to the conclusion that whenever and for whatever reasons a junior is given higher pay the doctrine of 'equal pay for equal work ' is violated and the seniors are entitled to the same pay.
We do not agree with the High Court/Tribunal.
Doctrine of 'equal pay for equal work ' cannot be put in a straight jacket.
Although the doctrine finds its place in the Direc tive Principles but this Court, in 1009 various judgments, has authoritatively pronounced that fight to 'equal pay for equal work ' is an accompaniment of equali ty clause enshrined in Articles 14 and 16 of the Constitu tion of India.
Nevertheless the abstract doctrine of 'equal pay for equal work ' cannot be read in Article 14.
Reasonable classification, based on intelligible criteria having nexus with the object sought to be achieved, is permissible.
"Equal pay for equal work" does not mean that all the members of a cadre must receive the same pay packet irre spective of their seniority, source of recruitment, educa tional qualifications and various other incidents of serv ice.
When a single running pay scale is provided in a cadre the constitutional mandate of equal pay for equal work is satisfied.
Ordinarily grant of higher pay to a junior would ex facie be arbitrary but if there are justifiable grounds in doing so the seniors cannot invoke the equality doctrine.
To illustrate, when Payfixation is done under valid statuto ry rules/executive instructions, when persons recruited from different sources are given pay protection, when promotee from lower cadre or a transferee from another cadre is given pay protection, when a senior is stopped at Efficiency Bar, when advance increments are given for experience/passing a test/ acquiring higher qualifications or as incentive for efficiency; are some of the eventualities when a junior may be drawing higher pay than his seniors without violating the mandate of equal pay for equal work.
The differentia on these grounds would be based on intelligible criteria which has rational nexus with the object sought to be achieved.
We do not therefore find any good ground to sustain the judg ments of the High Court/Tribunal.
In Federation of All India Customs & Central Excise Stenographers (Recognised) and others vs The Union of India and others, JT 19, Sabyasachi Mukharji, J. considered earlier judgments of this Court on the point and observed: "Equal pay for equal work is a fundamental right.
But equal pay must depend upon the nature of the work done, it cannot be judged by the mere volume of work, there may be qualitative difference as regards reliability and responsibility.
Functions may be the same but the responsibilities make a difference.
One cannot deny that often the difference is a matter of degree and that there is an element of value judgment by those who are charged with the administration in fixing the scales of pay and other conditions of service.
So long as such value judgment is made bona 1010 fide, reasonably on an intelligible criteria which has a rationale nexus with the object of differentiation such differentiation will not amount to discrimination.
It is important to emphasise that equal pay for equal work is a concomitant of Article 14 of the Constitution.
But it follows naturally that equal pay for unequal work will be a negation of that right.
" In State of U.P. & Ors.
vs Shri J.P. Chaurasia & Ors., JT the question for consideration was as to whether it is permissible to have two pay scales in the same cadre for persons having same duties and having same respon sibilites.
Jagannatha Shetty, J. speaking for this Court observed: "It is against this background that the prin ciple of 'equal pay for equal work ' has to be construed in the first place.
Second, this principle has no mechanical application in every case of similar work.
It has to be read into article 14 of the Constitution.
Article 14 permits reasonable classification rounded on different basis.
It is now well established that the classification can be based on some qualities or characteristics of persons grouped together and not in others who are left out.
Those qualities or characteristics must, of course, have a reasonable relation to the object sought to be achieved.
In service matters, merit or experience could be the proper basis for classification to promote efficiency in administration.
He or she learns also by experience as much as by other means.
It cannot be denied that the quality of work performed by persons of longer experience is superior than the work of newcomers.
Even in Randhir Singh 's case, this principle has been recognised.
O. Chinnappa Reddy, J. observed that the classification of officers into two grades with different scales of pay based either on academic qualifications or experi ence on length of service is sustainable.
Apart from that, higher pay scale to avoid stagnation or resultant frustration for lack of promotional avenues is very common in career service.
There is selection grade for District Judges.
There is senior time scale in Indian Administrative Service.
There is super time scale in other like services.
The enti tlement to these higher pay scales depends upon seniority cum merit or merit cum seniori ty.
The differentiation so made in the same cadre will not amount to discrimination.
The classif 1011 cation based on experience is a reasonable classification.
It has a rationale nexus with the object thereof.
To hold otherwise, it would be detrimental to the interest of the service itself.
" The argument based on Rule 27 was never raised before the High Court/Tribunal.
There is neither any material on the record nor any justification before us to direct the appellant authorities to act under Rule 27 of the Fundamen tal Rules.
The respondents may if so advised approach the appropriate authorities for any such relief.
The appeals are accepted.
Judgments of the Andhra Pra desh High Court and the Andhra Pradesh Tribunal are set aside and the writ petitions/petitions/applications of the respondents before the High Court/Tribunal are dismissed.
There will be no order as to costs.
The respondents are white collared salaried persons and it may be too harsh for them to refund the salary already paid to them.
Therefore, in the interest of justice, we direct that the additional salary paid to them as a result of High Court/Tribunal judgments upto 31 3 1989 shall not be recovered from them.
Y.L. Appeals al lowed.

summary:
The common question that arose for decision by this Court in these groups of matters is whether payment of less salary to a senior than his junior in the same cadre having the same scale of pay is violative of the principle of "equal pay for equal work" enshrined in Article 39(d) read with Article 14 and 16 of the Constitution.
The said ques tion in each group of matters arises thus: The first batch in this bunch of appeals (CAs 317 30/87 etc.) relate to the case of Assistant Section Officers of Andhra Pradesh High Court.
It may be pointed out that copy ists and Assistants are the two feeder channels to the post of assistant Section Officers.
Prior to 1974 the Copyists were in the pay scale of Rs.70 130 and were entitled to additional payment at Rs.7.5P every 100 words they copy in excess of 42,000 words.
Consequent upon pay revision, they were given the pay scale of Rs.250 430 w.e.f. 1.1.1974 with out entitlement of remuneration in addition to pay.
The Copyists represented that while revising their grade, tile additional emoluments, which they were getting prior to revision of pay, has not been taken into consideration.
On recommendation of the High Court, the State Government agreed to fix the pay of the Copyists in the revised grade by adding to their basic pay Rs.83.34P, that being the average remuneration that each Copyist was earning prior to 1.1.74 and the Dearness Allowance admissible thereon.
The pre revised scale of pay of Assistants was Rs.90 192 which was revised to Rs.250 430 from 1.1.1974.
Even though the Scale of Pay of Copyists and Assistants was the same, Copyists started drawing more salary on account of addition of Rs.83.34P aforesaid.
Consequently on promotion to the Post of Assistant Section Officer, the salaries of those 1001 promoted from the cadre of Copyists were fixed higher than those who were promoted from the cadre of Assistants.
One Janakirama Rao, a Copyist was promoted to the cadre of Assistant Section Officer in 1984.
On the basis of his last pay drawn as Copyist, his pay as Assistant Section Officer was fixed higher than those who were promoted to the said post from the cadre of Assistants during the period 1982 84, under F.R. 22(a)(i) of Andhra Pradesh Fundamental Rules.
The Seniors filed writ petitions in the High Court contending that the grant of higher pay to juniors in the same cadre is violative of the principle "Equal pay for equal work".
The High Court allowed the Writ Petitions and directed that the Assistant Section Officers seniors to Janakirama Rao be paid the same salary as he was drawing.
Division Bench held that grant of higher pay packet to junior person than his seniors under any circumstances is discriminatory.
Hence these appeals by the State of Andhra Pradesh.
Another batch of appeals is filed by Tirumala Tirupathi Devasthanam.
One B.V. Krishnamurthy and 62 others working as Upper Division Clerks in the Devasthanam had filed writ petition in the High Court praying that the Devasthanam be directed to pay salary to them at par with one D. Gopaliah, U.D.C. who was junior to them.
Particulars of D. Gopaliah and one of the petitioners may only be stated.
Gopaliah joined as Lower Division Clerk in 1967 and was given Selec tion Grade in 1974.
Family Planning incentive of Rs. 11 was added to his salary in 1977.
He was promoted as U.D.C. in 1979 but was reverted in 1981.
He was given further increase in pay as L.D.C. on completion of 15 years service, as provided in the Rules and in June 1987, he was drawing basic pay of Rs.811.
He was again promoted as U.D.C. on 1.7.1983 and in that cadre, on the basis of his pay in the lower grade, his salary as per Rules was fixed at Rs.861.
On the other hand Krishnamurthi who joined as Lower Division Clerk in 1970, and promoted as U.D.C. on 3.11.1981, his salary was fixed at Rs.615.
On 1st July 1983 Krishnamurthy was drawing Rs.635.
In these circumstances Gopaliah though junior to Krishnamurthy started drawing more salary.
Following his earlier decision, the learned Single Judge allowed the Writ Petitions filed by Krishnamurthy and others similarly placed.
Their Writ Appeals were dismissed.
Hence these appeals by Devasthanam.
The third group of appeals by the State of Andhra Pra desh (CAs 299/88 & 300 301/88) are directed against the order of the Andhra Pradesh Administrative Tribunal.
The Writ Petitioners therein were Assistants working in differ ent departments of the State.
They were all absorbed in the Pay & Accounts Office, Hyderabad w.e.f. 12th July 1002 1978.
One Swaminathan was also absorbed as Assistant in the said office w.e.f. 4th September 1978.
In view of his length of service and grant of Selection grade, he had been drawing higher salary in his parent Department.
Accordingly on his joining Pay & Accounts Office, his salary, as per Rules, was protected and he was fixed at higher basic pay than the Writ Petitioners.
The Seniors raised contention before the Tribunal on the basis of "Equal pay for equal Work".
The Tribunal allowed the Writ Petitions, holding that for whatever reason a junior is paid higher pay packet than his senior, the prin ciple of "Equal pay for equal work" is violated and the senior is entitled to the same pay.
In other cases, also, the same question junior drawing more salary than senior and the seniors claiming parity of pay is involved.
Before this Court it was contended by the appellants employers that so long as there is rational basis for giving higher pay to junior in the same cadre, the seniors can have no grievance.
The last pay drawn in the lower cadre has to be the basis for fixation of salaries under the Fundamental Rules and following that basis, the salaries have been rightly fixed.
According to some appellants if all the consideration, factors and incidents of service are identical then only the principle of "Equal pay for equal work" is attracted.
If there is justification under the Rules or otherwise for giving a higher pay to the junior then the principle in the abstract sense is not attracted.
Allowing the appeals, this Court, HELD: Doctrine of "Equal pay for equal work" cannot be put in a straight jacket.
Although the doctrine finds its place in the Directive Principles, this Court, in various judgments, has authoritatively pronounced that right to "equal pay for equal work" is an accompaniment of the equal ity Clause enshrined in Article 14 and 16 of the Constitu tion of lndia.
[1008H; 1009A] Reasonable classification, based on intelligible crite ria having nexus with the object sought to be achieved, is permissible.
[1009B] "Equal pay for equal work" does not mean that all the members of the cadre must receive the same pay packet irre spective of their 1003 seniority, source of recruitment, educational qualifications and various other incidents of service.
When a single run ning pay scale is provided for a post in a cadre, the Con stitutional mandate of equal pay for equal work is satis fied.
Ordinarily grant of higher pay to a junior would ex facie be arbitrary but if there are justifiable grounds in doing so, the seniors cannot invoke the equality doctrine.
[1009B C] The differentia on grounds such as, when persons re cruited from different services are given pay protection, when promoters from lower cadre or a transferee from another cadre is given any pay protection, when a senior is stepped at efficiency bar, when advance increments are given for experience/passing a test/acquiring higher qualifications or as incentive for efficiency, would be based on intelligible criteria which has rational nexus with the object sought to be achieved, and which does not violate the mandate of equal pay for equal work.
The orders appealed against were there fore reversed.
[1009D E]