judgement:
Civil Appeal No. 537 of 1978.
From the Judgment and Order dated 13.10.1977 of the Andhra Pradesh High Court in C .
250 of 1977 .
P.P. Rao, K. Ram Kumar and Mrs. Janki Ramachandran for the Appellant .
A.S. Nambiar and B. Parthasarthi for the Respondent.
The Judgment ot ' the Court was delivered by NATARAJAN, J.
This appeal by special leave directed against a judgment of the Andhra Pradesh High Court lies within a narrow compass.
The respondent/landlord filed a petition under Section 10(3) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short the Act ') to seek the eviction of the tenant/appellant from premises bearing No. 1 1 250 Chikkadpalli, Hyderabad.
The appellant is running a pan shop and a hire cycle shop in the front room of the premises and residing in the rear portion.
Besides the leased premises, the respondent owns the adjoining building bearing No. 1/1/249.
In the said building the respondent was running a grocery shop in the ground floor and residing in the second and third floors subsequently constructed by him.
It would appear that the respondent has since changed PG NO 436 over his business to retail sale of liquor.
On the ground of requirement of additional space for the grocery shop, the respondent sought the eviction of the appellant.
The Rent Controller held that the respondent was not entitled to an order of eviction either under Section 19(3)(a)(iii) or Section 10(3)(c) because the leased premises was a separate building and did not form part of the building in which the respondent was carrying on his business.
In the appeal preferred by the respondent, the Chief Judge, City Small Cause Court, Hyderabad, took a different view of the matter and held that even though the leased premises had a separate municipal door number it can be treated as forming part of the building in the respondent 's occupation because both the buildings are owned by the second respondent and besides the two buildings are separated only by a single wall.
For reaching such a conclusion, the Appellate Authority followed the ratio laid down in Balaiah vs Lachaiah, AIR 1965 A.P. 435.
As the Appellate Authority further found that the requirement of additional space by the respondent was a bona fide one, the Appellate Authority allowed the appeal and ordered the eviction of the appellant.
A civil revision filed by the appellant to the High Court did not meet with success and hence the appellant has preferred this appeal.
Though the proceedings before the Rent Controller and the Appellate Authority were conducted on the footing that the respondent was entitled to seek the appellant s eviction under Section 10(3)(a)(iii) as well as under Section 10(3)(c) it was conceded before us by Mr. Nambiar, learned counsel for the respondent that the tenant 's eviction was sought for only under Section 10(3)(c) vi. requirement of additional space for the respondent 's business.
In such circumstances the only factor for determination is whether the respondent can seek the appellant 's eviction from the tenanted building the ground he requires additional accommodation for his business.
Before we proceed to deal with the question, it is necessary to state a few facts.
Originally, a row of buildings comprised in door numbers 1 1 248 to 1 1 251 were owned by one R. Kistiyah and after him by one Rambai.
The said Rambai sold the buildings in the row to different persons.
The respondent and his brother were two of such purchasers and they purchased premises No. 1 1 248 and l 1 249.
Subsequently, in a partition between them, premises No. 1 l 249 was allotted to the respondent and premises No. l 1 248 was allotted to his brother.
After the partition was effected, the respondent constructed : two storeys over his building by erecting concrete pillars on both sides of hiS building.
At that time, the suit premises bearing No. 1 1 250 was owned by an advocate by name Sri section Sitaram Rao.
PG NO 437 When the concrete pillars were erected, Sitaram Rao complained of encroachment by the respondent and eventually, the dispute was resolved by the respondent himself purchasing Sitaram Rao 's house viz. No. 1 1 250.
After constructing the two floors, the respondent shifted his residence to those floors and utilised the entire ground floor for his business.
he appellant who was a tenant of the suit premises even before the respondent purchased it attorned his tenancy to the respondent.
Under the Act, a landlord can seek the eviction of a tenant from a non residential building under Section 10(3)(a)(iii) if he is not already occupying a non residential building which is either his own or to the possession of which he is entitled or under Section 10(3)(c) by way of additional accommodation if the non residential building occupied by him is not sufficient for the purpose of the business he is carrying on.
Since we are concerned in this appeal only with Section 10(3)(c), we need extract only that clause which reads as under: "10(3)(c).
A landlord who is occupying only a part of a building, whether residential or non residential, may not withstanding anything in clause (a), apply to the Controller for an order directing any tenant occupying the whole or any portion or the remaining part v he building to put the landlord in possession thereof, if he requires additional accommodation for residential purpose or for purpose of a business which he is carrying on, as the case may be. ' ( Emphasis supplied).
From a reading of clause (c), it is obvious that provision has been made under that clause only to seek the eviction of a tenant occupying another portion or the remaining portion of the building in which the landlord is also residing or carrying on his business in one portion.
Section 10(3)(c) of the Tamil Nadu Buildings (Lease and Rent Control Act 1960 which is identically worded as Section 10(3)(c) of the Andhra Pradesh Buildings (Rent, Eviction and Control) Act came to be construed in a different context by this Court in Balaganesan Metals v, M.N. Shanmugham Chetty, (JT It was held in that case that a landlord occupying only a part of a building for residential or non residential purposes may seek the eviction of a tenant ocCupying the whole or any portion of the remaining part of the building if he requires additional accommodation for his residential or non residential needs and that it is not necessary that there must be identical user of the leased portion by the tenant if the landlord wants to seek his eviction for his residential ar business needs.
PG NO 438 In this case, the controversy centres around the question whether a landlord can invoke Section 10(3)(c) of the Act to seek the eviction of a tenant who is not occupying a portion of the building occupied by the landlord himself but is occupying another building belonging to the landlord.
While the Rent Controller held that the two premises viz. 1/1/249 and 1/1/250 are separate and independent, the Appellate Authority has taken the view that by reason of the unity of ownership of the two buildings in the respondent and by reason of the two buildings being separated only by a single wall "it can be said that the mulgi constitutes additional accommodation to the appellant" and the fact that the two mulgies bear different municipal numbers should not make any difference.
The High Court has not construed the scope of Section 10(3)(c) but has sweepingly said that: "Whether both can be said to be same building or separate buildings it does not matter, if ' the respondent wants the premises bona fide as an additional accommodation; whether it is a separate building or a portion of the same building, he can require it on that ground.
" counsel for Before us it was canvassed by Mr. P.P. Rao, learned counsel for the appellant that Section 10(3)(c) would entitle a landlord to seek the eviction of his tenant for purposes of additional accommodation for himself only if the portion occupied by the tenant forms part of the same building occupied by the landlord and that Section 10(3)(c) will not apply to a case where the landlord and the tenant re occupying different buildings even though the two buildings may be owned by the same landlord.
Controverting this argument Mr. Nambiyar, learned counsel for the respondent contended that the premises occupied by the appellant, though assigned a separate municipal door number cannot be treated as an independent and separate building because both the buildings are owned by the respondent and secondly the leased premises are separated from door number l/ l/249 only by a single wall.
On a consideration of the matter, we find that the contention of Mr. Nambiyar, which has found acceptance with the Appellate Court and the High Court is not at all a tenable one.
What Section 10(3)(c) envisages is the oneness of the building and not the oneness of ownership of two different buildings, one occupied by the landlord and the other by the tenant.
The significant words used in Section 10(3)(c) are "the landlord who is occupying only a part of a PG NO 439 building" and "any tenant occupying the whole or any portion of the remaining part of the building".
Surely no one can say that two adjoining buildings bearing different door numbers, one occupied by the landlord and the other by the tenant would make them one and the same building if they are owned by one person and separate buildings if they are owned by two different persons.
A practical test which can be applied to find out if two adjoining buildings form part of the same building or two different buildings would be to see whether one of the two buildings can be sold by the landlord and the purchaser inducted into possession of the premises sold without the landlord 's possession and enjoyment of the premises in his occupation being affected.
Viewed in that manner, it can at once be seen that the leased premises in the appellant 's occupation can be independently sold and the purchaser delivered possession without the respondent 's possession of door No. 1 1 249 being affected in any manner.
As a matter of fact, the previous history of the building shows that before it was purchased by the respondent, it was owned by Sri Sitaram Rao and the respondent was owning only door No. 1 1 249.
Such being the case, merely because the appellant has acquired title to door No. l l 250 also, it can never be said that the building under the tenancy of the appellant became part and parcel of the respondent 's building No. l 1 29.
Similarly, the fact that the two buildings are separated only by a single wall with no intervening space between them would not alter the situation in any manner because the identity of two separate buildings is not to be judged on the basis of the buildings being separated by a single wall or by two separate walls with intervening space in between them.
Section 10(3)(c) which occurred as Section 7(3)(c) in the Madras Buildings (I ease and Rent Control) Act 1 '4 has been properly construed by Chandrasekhara Sastri, J. in M. Ramaswamy Naidu vs P. Venkateswarlu, (Vol. 11) 1961(1) A.W.R. page.
The learned judge has stated that Section 7(3)(c) "applies only n a case where the landlord is occupying a part of a building and still requires the remaining part for the purpose ot ' his own business as additional accommodation.
" This decision has not been noticed by the Appellate Authority and the High Court and they have proceeded solely on the basis that as per the ratio in Balaiah vs Lachaiah, (supra) the respondent is entitled to an order of eviction even under Section 10(3)(a)(iii) for additional accommodation despite the fact that he is in occupation of a building of his own.
Mr. Nambiyar referred to the definition of the word "building" in Section 2(iii) of the Act and argued that if PG NO 440 for the purposes of the Act, where the context warrants it, different portions of the same building can be treated as separate buildings, it should conversely be held that if adjoining building are owned by the same person and one of them is in the occupation of the landlord and the other by a tenant, then for purposes of Section 10(3)(c) the two buildings should be treated as an integrated and composite building.
We are unable to accept this argument because firstly the terms of Section 2(iii) do not afford scope for such a construction and secondly the argument fails to take note of the purpose and object lying behind the definition of "building" in the manner in which the clause is worded.
Section 2(iii) has been provided so as to make the provisions of the Act applicable to the whole of the building as well as to parts of it depending upon whether the entirety of the building has been leased out to a tenant or different portions of it have been let out to different tenants.
There is, therefore, no room or scope for the respondent to invoke Section 2(iii) to contend that two different premises should be treated as a single and integrated building for the purposes of the Act if the two buildings adjoin each other and are owned by the same person but under different occupation i.e. one by the landlord and the other by the tenant.
Mr. Nambiyar then argued that if section 10(3)(c) is to be construed as being applicable only when different portions of the same building are in the occupation of the landlord as well as one or more tenants, it would result in a landlord like the respondent who is genuinely in need of additional accommodation being left with no remedy whatever for securing additional accommodation for his business needs.
We find it unnecessary to go into the merits of this submission because however genuine the respondent s need for additional accommodation may be and whatever be the hardship resulting to him by non eviction of the appellant, we cannot grant any relief to the respondent under the Act as it now stands.
As per the Act the relief of eviction of a tenant can be given to a landlord only under two situations viz. (1) where the landlord is not in occupation of a building of his own or to the possession of which he is entitled to by an order of eviction under Section 10(3)(a)(iii) and (2) where the landlord is in occupation of only a portion of his building and is bona fide in need of additional accommodation and another or the remaining portion of the building is in the occupation of a tenant or tenants by ordering his or their eviction under Section 10(3)c).
The Legislature has not provided for Section 10(3)(c) being made applicable to a landlord where he owns adjoining buildings and is in occupation of only one of those two buildings and the tenant is in occupation of the other and the land lord 's PG NO 441 bona fide in need of additional accommodation for his residential or business needs.
If the hardship experienced by landlords similar to the respondent is to be alleviated, then it is for the Legislature to remedy the situation by making suitable amendments to the Act and it is not for the Court to read Section 10(3)(c) beyond its terms oblivious to the limitations contained therein and hold that a separate tenanted building adjoining the building in the owner 's occupation would also form part of the latter building.
In the light of our conclusions, it follows that the judgment and order of the Appellate Authority and the High Court cannot be sustained and have to be set aside.
In the result, the appeal succeeds and the order of the Rent Controller dismissing the respondent 's petition for eviction will stand restored.
There will, however, be no order as to costs .
R.S.S. Appeal allowed.

summary:
The respondent had acquired the building being premises No. 1.1.249 Chikkadpalli, Hyderabad, constructed two storeys over this building and utilised the upper floors for his residence and the ground floor for his business.
Subsequently, he had purchased the adjacent building being premises No. 1 1 250.
The appellant was a tenant in the suit premises No. 1.1.250 even before the respondent purchased it, and was running his shop in the front room and residing in the rear portion.
The respondent sought eviction of the appellant inter alia on the ground of requirement of additional space under section 10(3)(r) of the Andhra Pradesh Buildings (I,ease, Rent and Eviction) Control Act, 1960, under which .
landlord occupying only a part of a building was entitled to seek the eviction of a tenant occupying another portion or the remaining portion of the building if the landlord required additional accommodation for residential purpose or for carrying on his business.
The Rent Controller held that the respondent was not entitled to an order of eviction under section 10(3)(c) because the leased premises was a separate building and did not form part of the building in which the respondent was carrying on his business.
The Appellate Authority however held that even though the leased premises had a separate municipal door number it could be treated as forming part of the building in the respondent 's occupation because both ' the buildings were owned by the respondent and were separated only by a single wall.
PG NO 433 PG NO 434 The High Court in revision held that if the respondent wanted the premises bona fide as an additional accommodation it did not matter whether it was a separate building or a portion of the same building.
Before this Court, the appellant contended that section 10(3)(c) would not apply to a case where the landlord and the tenant were occupying different buildings even though the two buildings were owned by the same landlord.
The respondent, on the other hand, contended that the two buildings could not be treated as independent and separate buildings because both the buildings were owned by the respondent and were separated only by a single wall.
Allowing the appeal, it was, HELD: (I) From a reading of clause (c) of section 10(3) it is obvious that provision has been made under that clause only to seek the eviction of a tenant occupying another portion or the remaining portion of the building in which the landlord is also residing or carrying on his business in one portion.
[437F] (2) What section 11)(3)(c envisages is the oneness of the building and not the oneness of ownership of two different buildings, one occupied by the landlord and the other by the tenant.
[438G H] (3) The significant words used in section 10(3)(c) are "the landlord who is occupying only a part of a building" and "any tenant occupying the whole or an portion of the remaining part of the building." [438H; 439A] (4) A practical test which can be applied o find out if two adjoining buildings form part of the same building or two different buildings would be to see whether one of the two buildings can be sold by the landlord and the purchaser inducted into possession of the premises sold without the landlord 's possession and enjoyment of the premises in his occupation being affected.
[439B C] (5) The identity of two separate building is not to be judged on the basis of the buildings being separated by a single wall or by two separate walls with intervening space in between them.
[439E] (6) There is no room or scope for the respondent to invoke section 2(iii), defining the word "building", to contend that two different premises should be treated as a single and integrated building for the purposes of the Act if the two buildings adjoin each other and are owned by the PG NO 435 same person but under different occupation i.e. one by the landlord and the other by the tenant.
[440C D] (7) If the hardship experienced by landlords similar to the respondent is to be alleviated, then it is for the legislature to remedy the situation by making suitable amendments to the Act and it is not for the Court to read section 10(3)(c) beyond its terms, oblivious to the limitations contained therein and hold that a separate tenanted building adjoining the building in the owner 's occupation would also form part of the latter building.
[44lA B] Balaiah vs Lachaiah, AIR 1965 A.P. 435; Balaganesan Metals vs M.N. Shanmugham Chetty, JT and N. Ramaswamy Naidu vs P. Venkateshwarlu, Vol.
Il 1961 1 A.W.R. page 400, referred to.


judgement:
Civil Appeal No. 1697 Of 197 From the Judgment and Order dated 22.1.1972 of the Madhya Pradesh High Court in Misc.
Petition No. 358 of 1971.
M. Narayan, Mr. B. Shetya and Vineet Kumar for the Appellant.
S.S. Khanduja, Y.P. Dhingra, Baldev Krishan Satija and T.C. Sharma for the Respondents.
The Judgment of the Court was delivered by PG NO 444 RAY, J.
This appeal by special leave is against the judgment and order dated 22nd January, 1972 rendered by the High Court of Madhya Pradesh at Jabalpur in Miscellaneous Petition No. 358 of 1971 dismissing the writ petition holding that the Regulations framed by the Board of Secondary Education, Madhya Pradesh under Section 28(2)(d) of the Madhya Pradesh Madhyamik Shiksha Adhiniyam, 1955 have no statutory force and as such termination of service in violation of Regulation Nos.
7 1 and 79 does not entitle the appellant to a declaration that the termination was illegal and for a direction for his reinstatement in service.
The matrix of the case in short, is that the appellant was appointed as Head Master by the Managing Committee of Vidyut Grih Siksha Samiti, Korba on probation for a period of one year on a pay scale r of Rs.250 10 290 15 350 EB 20 450 with effect from 3.7.1968.
Meanwhile, the High School became a Higher Secondary School and as such on September 1, 1969 the Managing Committee appointed the appellant as Principal temporarily on a pay scale of 1) Rs.:Z75 25 300 15 405 EB 20 550 25 700 with effect from July 3, 1968.
The above scale was made applicable to him with retrospective effect i.e. from July 3, 19 F.N., the date of his appointment.
The appointment letter further states as follows: ". . . .
The appointment will be governed by the rules and regulations laid down by the Education Department of Madhya Pradesh State Government for the recognised Schools in the State unless and otherwise specified from time to time.
The appointment can be terminated on one month 's notice or pay thereof on either side." This School was established by Vidyut Grih Siksha Samiti, Korba, a body registered under the M.P. Non Trading Corporation Act, l962.
The Society under its bye laws has a Foundation Committee which is G its Governing Body and an Executive Committee, i.e. Managing Committee.
On June 23, 1971 the Managing Committee dispensed with the services of the appellant with immediate effect by giving him one month 's salary in lieu of notice.
The appellant made a representation against this order to the Divisional Superintendent of Education who by his letter dated June 24, 1971 directed the Secretary of the school to rescind the order of termination of the services of the appellant and to PG NO 445 hand over charge of the school to the appellant otherwise the recognition of the School will be withdrawn.
This letter was written on the ground that the termination of the appellant was wrongful being in breach of Regulation 79.
However, the appellant was not reinstated pursuant to the said letter.
The appellant, therefore, moved a writ petition before the High Court of Madhya Pradesh at Jabalpur.
This was registered as Miscellaneous Petition No. 358 of 1971.
The writ petition was heard by a Division Bench of the said High Court and it was held that Regulation No. 71 as well as Regulation No. 79 framed by the Board of Secondary Education under Section 28(2)(d) of Madhya Pradesh Madhyamik Adhiniyam, 1955 have no statutory force following the decision of this Court in the case of Dr. Ram Pal Chaturvedi vs State of Rajasthan and Ors., and as such the termination of service of the appellant in violation of the procedure prescribed in Regulation No. 71 and 79 of the said Regulations would not render the impugned order null and void.
It could at best be a wrongful dismissal from service by the master and the appellant 's remedy is only by an action for damages he might have sustained in consequence of the breach of the master and servant contract.
It was also held that the School in question was run by a private body and as such no writ of mandamus could be issued.
The Court further held that an order cannot be made against the society compelling the re instatement of the appellant as it is in the realm of contractual rights and obligations.
The writ petition was thus dismissed.
Against this judgment and order the instant appeal has been filed on special leave this Court.
In order to effectively consider the question whether these Regulations have got statutory force or not it is necessary to set out hereinbelow the relevant Regulations: "Regulation 61: No Educational Institution shall be recognised, or continued to be recognised unless it complies with the following requirements, namely: (1) That the Educational Institution shall comply with the conditions laid down in Chapter XII of these Regulations.
(2) that there shall be a Managing Committee as defined under the Adhiniyam consisting of not more than 10 members of which two shall be the Head of the Institution and a nominee of the Educational Officer concerned and that the Governing Body of Managing Committee shall be registered under the Societies Registration Act.
PG NO 446 Regulation 71: All Principal, Head Masters, Lecturers and Teachers, except those appointed temporarily for a period of less than one year, shall be on probation or a term of one year which may be extended to two years.
If after two years service any incumbent is continued in his appointment, he shall, unless the appointing authority, for reasons to be recorded in the writing, otherwise directs, be deemed to have been confirmed in that appointment.
On being confirmed the incumbent shall sign a contract of service in the form one or two (appended to these Regulations) as the case may be, as soon as practicable.
Regulation 79 (1): The Managing Committee shall not terminate the services and reduce the pay of Principal or Head Master appointed on written contract without first obtaining Director 's sanction for holding a full enquiry into the charges against him.
The incumbent shall be given in writing a statement of the charges against him, and also be afforded an opportunity of defending himself.
His previous services and character with reference to this incidental file and Service book shall also be taken into consideration before arriving at a decision.
(2) No decision as to termination of service or reduction of a Principal or a Head Master shall be valid, unless passed at Special Meeting by a majority of two thirds of members of the Managing Committee.
No such resolution shall be valid, if passed at an adjourned meeting.
3) The Principal or Head Master have a right of appeal to the Director against decision of the Managing Committee.
The decision of the Director shall be final." These Regulations were framed under the provision of Sectio 28(2)(d) of the said Act which reads as follows: "Sec.
28 Powers of Board to make Regulations (1) The Board may make Regulations for the purpose of carrying into effect the provisions of this Act (2) In particular and without prejudice to the generality of the foregoing power, the Board may make Regulations providing for all or any of the following matters, namely: PG NO 447 (d) The conditions of recognition of institutions for the purposes of admission to the privileges of the Board and framing of a School Code to ensure a minimum standard of efficient and uniform management of such schools.
" It thus appears that Section 28(2)(d) confers power on the Board to make Regulations regarding the conditions of the Institutions as well as for framing of "School Code" to ensure a minimum standard of efficient and uniform management of such schools.
Regulation 71 clearly provides that Principals, Head Masters, Lecturers and Teachers when appointed shall be appointed on probation for a period of one year which may be extended to two years.
It also provides that after two years of service if any incumbent is continued in his appointment he shall be deemed to have been confirmed to that appointment unless the Appointing Authority for reasons recorded in writing otherwise directs.
In this case the appellant has been appointed on probation as Principal with effect from July 3, 1968 and as he was allowed to continue for more than two years he shall be deemed to have been confirmed in the post of Principal of the said School.
The Managing Committee of the School by its letter dated June 23, 1971 terminated the services of the appellant after giving him one month 's salary in lieu of notice without serving on him any charges against him, Without holding any enquiry and also without giving him any opportunity of hearing before making the order terminating his service as required under the provision of Regulation 79(1) of the said Regulations.
The impugned resolution was also not passed at a special meeting by a majority of ,2/3rd of the members of the Managing Committee as provided in clause (2) of the said Regulation 79.
The High Court though found that there is a violation of the provisions of Regulation 71 and 79 yet as these Regulations have got no statutory force the appellant could not get the relief of a declaration that the order of termination of his service was illegal and invalid and also could not get an order for his re instatement in service as his appointment was in the realm of a contract of master and servant and his only remedy was an action for wrongful termination from service.
Two questions therefore fall for consideration namely whether the Regulations framed pursuant to a Statute can be said to have a statutory force the breach of which will entitle the aggrieved employee to get a declaration that the PG NO 448 impugned order was invalid and illegal and the employee should be allowed to continue in service or should be re instated in service.
The High Court has relied upon the decision of this Court in Dr. Ram Pal Chaturvedi vs State of Rajasthan and Ors.
,(supra) as well as Indian Airlines Corporation vs Sukhdeo Rai, [ ; In the case of Dr. Ram Pal Chaturvedi vs State of Rajasthan and Ors., the appointment of three respondents namely Dr. D.G. Ojha, Dr. P.D. Mathur and Dr. Rishi as Principal of Sr.
Patel Medical College, Bikaner, Rabindra Nath Tagore Medical College, Udaipur and Medical College, Jodhpur respectively was challenged on the ground that though they fulfilled the qualifications prescribed by Rule 30(4) of the Rajasthan Medical Service (Collegiate Branch) Rules 1962 they had not the requisite experience as provided in Ordinance No. 65 framed under the University of Rajasthan Act of 1946 and as such their appointments were not valid and legal.
The Syndicate of the Rajasthan University constituted under Section 21 of the Act is empowered under Section 29 read with Section 30 to make ordinances, consistent with the Act and statutes, to provide for the matters listed in Section 29.
These matters include in Clause VI "emoluments and conditions of service of University teachers".
The Syndicate made the ordinances pursuant to the provisions of this Section.
It was held that "The field of operation of this Ordinance appears to us to be restricted to the question of affiliation of the colleges concerned with the Rajasthan University.
It is note worthy that the University has not thought fit to object to these appointments.
If there is any violation of a provision of this Ordinance then that may appropriately be taken into account by the Rajasthan University for the purpose of withdrawing or refusing to continue affiliation of the colleges in question.
But clearly that would not render the impugned appointments null and void a fortiorari that can not confer any right on Dr. Ram Pal Chaturvedi to approach the High Court by means of petition for writ of quo warranto to challenge the appointments of these three persons This decision is not an authority for the proposition that Regulation framed pursuant to a Statute do not have a statutory force.
High Court was in error in holding otherwise.
This question is, however, concluded in favour of the appellant by a decision of this Court rendered by a 3 Judge Bench.
PG NO 449 The question whether a regulation framed under power conferred by the provisions of a Statute has got statutory power and whether an order made in breach of the said Regulation will be rendered illegal and invalid, came up for consideration before the Constitution Bench in the case of Sukhdev Singh & Ors.
vs Bhagatram Sardar Singh Raghuvanshi and Anr., [ ; In this case it was held that: "There is no substantial difference between a rule and a regulation inasmuch as both are subordinate legislation under powers conferred by the statute.
regulation framed under a statute applies uniform treatment to every one or to all members of some group or class.
The Oil and Natural Gas Commission, the Life Insurance Corporation and Oil and Natural Gas Commissionaire all required by the statute to frame regulations inter alia for the purpose of the duties and conduct and conditions of service of officers and other employees.
These regulations impose obligation on the statutory authorities.
The statutory authorities cannot deviate from the conditions of service.
Any deviation will be enforced by legal sanction of declaration by courts to invalidate actions in violations of rules and regulations.
The existence of rules and regulations under statute is to ensure regular conduct with a distinctive attitude to that conduct as a standard.
The statutory regulations h the cases under consideration give the employee a statutory status and impose restriction on the employer and the employee with no option to vary the condition. ' ' There is therefore, no escape from the conclusion that regulation have force of law.
The order of the High Court must therefore, be reversed on this point unhesitatingly.
In Indian Airlines Corporation vs Sukhdeo Rai the respondent who was an employee of the Indian Airlines Corporation Was found guilty of certain charges and dismissed from service after an enquiry held in breach of the procedure laid down by the Regulations made by the appellant under Section 45 of the Air Corporation Act, 1953.
A suit was filed by the respondent challenging the order of termination It was decreed by the Trial Court holding that the dismissal was illegal and Granted a declaration that he be continued to remain he service.
The Appellate Court as well as the High Court confirmed the decree.
On appeal this Court held that the relationship between the appellant,Indian Air lines Corporation and the respondent would in such cases be contractual i.e. as between a master PG NO 450 and servant and the termination of that relationship would not entitle the servant to a declaration that his employment had not been validly determined.
The termination though wrongful in breach of the terms and conditions which governed the relationship between the Corporation and the respondent yet it did not fall under any of the three well recognised exceptions and therefore the respondent was only entitled to damages and not to a declaration that this dismissal was null and void.
The respondent has sought support from this decision.
We are afraid the contention is wholly untenable.
The decision in Indian Airlines ' case has in terms been declared to be no longer good law and has in terms been overruled in Sukhdev Singh 's case ; by the Constitution Bench.
C Says Ray, C.J. speaking for the Court: "In the Indian Airlines case this Court said that there being no obligation or restriction in the Act or the rules subject to which only the power to terminate the employment could be exercised the employee could not contend that he was entitled to a declaration that the termination of his employment was null and void.
In the Indian Airlines Corporation case reliance was placed upon the decision of Kruse v Johnson, for the view that not all by laws have the force of law.
This Court regarded regulation as the same thing as by laws.
In Kruse vs Johnson the Court was simply describing the effect that the county by laws have own the public.
The observations of the Court in Kruse vs Johnson, that the by law "has the force of law within the sphere of its legitimate operation" are not qualified by the words that it is so ' 'only when affecting the public or some section of the public . ordering something to be done or not to be done and accompanied by some sanction or penalty for its non observance. ' ' In this view a regulation is not an agreement or contract but a law binding the corporation, its officers, servants and the members of the public who come within the sphere of its operations.
The doctrine of ultra vires as applied to statutes, rules and orders should equally apply to the regulations and any other subordinate legislation.
The regulations made under power conferred by the statute are subordinate legislation and have the force and effect, if validity made, as the Act passed by the competent legislature.
In U.P. Warehousing Corporation and Indian Air lines PG NO 451 Corporation case the terms of the regulations were treated as terms and conditions of relationship between the Corporation and its employees.
That does not lead to the conclusion that they are of the same nature and quality as the terms and conditions laid down in the contract employment.
Those terms and conditions not being contractual are imposed by one kind of subordinate legislation, Viz.
regulations made in exercise of the power conferred by the statute which constituted that Corporation.
of the regulations are not terms of contract.
In the Indian Airlines Corporation case under section 45 of the , the Corporation had the power to make regulations not inconsistent with the Act and the rules made by the Central Government thereunder.
The Corporation bad no power to alter or modify or rescind the provisions of these regulations at its discretion which it could do in respect of the terms of contract that it may wish to enter with its employees independent of these regulations.
So far as the terms of the regulations are concerned,the actions of the Corporation are controlled by the Central Government.
The decisions of this Court in U.P. Warehousing Corporation and Indian Airlines Corporation are in direct conflict with decision of this Court in Naraindas Barot 's case which was decided by the Constitution Bench.
Under the circumstances the plea of the respondents is meritless.
In Prabhakar Ramakrishna Jodh vs A.L. Pande and Anr., a question arose whether the provisions of ordinance 20 otherwise called the College Code framed by the University of Saugar under Section 32 and Section 6(6) of the University of Saugar Act, 1946 embodying the terms and conditions of teachers of the College affiliated to the University, have the force of law.
It was held that: "The provisions of Ordinance 20 i.e. the College Code " have got statutory force.
It confers legal rights on the teachers on the affiliated colleges and it is not a correct proposition to say that the "College Code" merely regulates the legal relationship between the affiliated colleges and the University alone.
We do not agree with the High Court that the provisions of the "College Code" constitute power of management.
On the contrary we are of the view that the PG NO 452 provisions of the "College Code" relating to the pay scale of teachers and their security of tenure properly fall within the statutory power of affiliation granted to the University under the Act.
It is true that Clause 7 of the Ordinance provides that all teachers of affiliated colleges shall be appointed on a written contract in the from prescribed in Sch.
A but that does not mean that teachers have merely a contractual remedy against the Governing Body of the College.
On the other hand, we are of opinion that the provisions of Clause 8 of the Ordinance relating to security of the tenure of teachers are part and parcel of the teachers ' service conditions and, as we have already pointed out, the provisions of the "College Code" in this regard are validly made by the University in exercise of the statutory power and have, therefore, the force and effect of law.
It follows, therefore, that the "College Code" creates legal rights in favour of teachers of affiliated colleges and the view taken by the High Court is erroneous. ' In the case of Manmohan Singh Jaitla vs Commissioner, U. T. of Chandigarh and Ors., [1984] (Supp) SCC 540 the appellant was appointed as Head Master of an aided School.
He was later confirmed by the competent authority.
A charge sheet was served on the appellant and disciplinary enquiry was held against him under section 3 of the Punjab Aided Schools (Security of Service) Act.
The enquiry was however, withdrawn later on and his seven years service was terminated by invoking the service agreement on ground that his service was no more required by the School.
This order was challenged by a writ petition before the High Court which rejected the same in limine but by a speaking order observing that as the School cannot be said to be 'other authority ' under Article 12, it was not amenable to the writ jurisdiction of the High Court.
The Supreme Court negatived the said finding of the High Court and held as follows: "The matter can be viewed from a slightly different angle as well.
After the decision of the Constitution Bench of this Court in Ajay Hasia vs Khalid Mujib Sehravardi, the aided school receiving 95% of expenses by way of grant from the public exchequer and whose employees have received the statutory protection under the 1969 Act and who is subject to the regulations made by the Education Department of the Union Territory of Chandigarh as also the appointment of Headmaster to be valid must be PG NO 453 approved by the Director of Public Instructions, would certainly be amenable to the writ jurisdiction of the High Court.
The High Court unfortunately, did not even refer to the decision of the Constitution Bench in Ajay Hasia, case rendered on November 13, 1980 while disposing of the writ petition in 1983.
in 1983.
In Ajay Hasia case, Bhagwati, J. speaking for the Constitution Bench inter alia observed (SCC p. 737, para 9) that "where the financial assistance of the State is so much as to meet almost entire expenditure of the Corporation, it would afford some indication of the Corporation being impregnated with governmental character".
Add to this "the existence of deep and pervasive State control may afford an indication that the corporation is a State agency or instrumentality".
Substituting the words 'public trust ' in place of the 'corporation ' and the reasons will mutatis mutandis apply to the School.
Therefore, also the High Court was in error in holding that the third respondent School was not amenable to the writ jurisdiction of the High Court." In Indra Pal Gupta vs Managing Committee, Model Inter College Thora, [ the appellant was appointed on probation for one year as Principal of Model Inter College, Thora, District Bullandshahr in accordance with the procedure prescribed by the Intermediate Education Act, 1921 (U.P. Act No. 2 of 1921) and the Regulations made thereunder.
The period of probation was however, extended by the Managing Committee of the said Model Inter College for a further period of one year.
On April 27, 1969 the Managing Committee adopted a resolution to terminate the services of the appellant in consideration of the report of the Manager of the College to the effect that due to his unsatisfactory services, it would not be in the interest of the Institution to permit him to continue as probationer any longer.
The service of the appellant was thus terminated without complying with the mandatory procedure laid down in Regulations 35 to 38 which provided for forming a sub committee to enquire into the allegations against the Principal and to frame definite charges against the Principal and to give him opportunity of hearing.
It was held that the order of termination made in breach of the provisions of the said Regulations which were made in pursuance of the provisions of the said Act, is illegal and invalid and as such the same was quashed.
The appellant was further declared to be in service of the College.
On a conspectus of these decisions the irresistible conclusion follows that the impugned order of termination of PG NO 454 the appellant from the post of Principal of the Higher Secondary School in breach of the Regulation 79 framed under the said Act is illegal and as such the same is liable to be quashed as the Regulations have got statutory force.
The appellant is liable to be re instated in the service as Principal of the said College.
We also hold that the Higher Secondary School in question though run by a private trust receives 100% grant from the Government as in evident from the affidavit sworn on behalf of the appellant and as such it is amenable to the writ jurisdiction for violation of the provisions of the said Regulations in passing the impugned order of termination of service of the appellant.
We therefore, set aside the order passed by the High Court which, in our opinion, is unsustainable and direct the respondents to re instate the appellant in the service of the said College.
Considering the facts and circumstances of the case we are of the opinion that the ends of justice would be met by directing the respondents to pay to the appellant a sum equal to 50% of the salaries and allowances from the date of termination till his re instatement in service as it appears that the appellant was not in employment during this period.
The appeal is, therefore.
allowed with costs.
R.S.S. Appeal allowed.

dataset_name: IN-Abs

summary:
The appellant was appointed from July 3, 196X as principal of the School run by the respondent society, a body registered under the M.P. Non trading Corporation Act, 1962.
On June 23, 1971 the appellant 's services were terminated with immediate effect by giving one month 's salary in lieu of notice.
The appellant made representation to the Divisional Superintendent of Education who directed the Society to rescind the order of termination because, according to him, the termination of the appellant was wrongful being in breach of Regulation 79 of the Regulations framed by the Board of Secondary Education under section 28(2)(d) of Madhya Pradesh Madhyamik Shiksha Adhiniyam, 1955.
The appellant however was not re instated by the society.
The appellant therefore filed a petition in the High Court, which was dismissed.
The High Court held that (1) the said Regulations had on statutory force and therefore the violation in this case of the procedure prescribed in Regulations 71 and 79 would not render the order of termination null and void; (2) the appellant 's remedy was only by an action for damages for breach of master and servant contract; and (3) the school being run by a private body, no writ of mandamus could he issued.
Allowing the appeal, it was, HELD ection 28(2)(d) of the Act confers power on the Board to make Regulations regarding the conditions of recognition of the Institutions as well as for framing of School Code" to ensure minimum standard of efficient and uniform management of such schools.
[447B C] PG NO 442 PG NO 443 (2) As has been held by this Court in Sukhdev Singh 's case, there is no subtantial difference between a rule and a regulation inasmuch as both are subordinate legislation under powers conferred by the statute.
There is therefore, no escape from the conclusion that the regulations, in the present case, have force of law.1449B] (3) A observed in Sukhdev Singh 's case, the doctrine of ultra vires as applied to statutes, rules and orders should equally apply to the regulations and any other subordinate legislation.
[450G] (4) The order of termination of the appellant from the post of Principal of the Higher Secondary School in breach of Regulation 79 is illegal and as such the same is liable to be quashed as the Regulations have got statutory force.
The appellant is liable to be reinstated in the service as Principal of the said school.
[454A B] (5) The Higher Secondary School in question though run by a private trust receives 100% grant from the Government and as such it is amenable to the writ jurisdiction for violation of the provisions of the said Regulations in passing the order of termination of service of the appellant.
454B C] Dr. Ram Pal Chaturvedi vs State of Rajasthan, [1970] I SCC 75; Indian Airlines Corporation vs Sukhdeo Rai, ; ; Sukhdev Singh & Ors.
vs Bhagatram Sardar Singh Raghuvanshi and Anr., ; ; Prabhakar Ramakrishna Jodh vs A.L Pandi and Anr., ; Manmohan Singh Jaitla vs Commissioner, U.T. of Chandigarh & Ors., [1984] Supp.
S.C.C. 540; and Indra Pal vs Managing Committee,, Model Inter College Thora, [l984] 3 SCC 384, referred to.


judgement:
Civil Appeal Nos.2461 2463 of 1987.
From the Judgment and Order dated 7.8.1987 of the Rajasthan High Court in D.B.C. Writ Petition Nos.
1374, 1987 and 1453 of 1987.
Badri Das Sharma for the Appellants.
PG NO 495 Tapas Ray and S.K. Jain for the Respondents.
The Judgment of the Court was delivered by THAKKAR, J.
What may 'appear ' to be equal treatment accorded in obeisance to the equality doctrine embodied in Article 14 of the Constitution in its application in 'reality ' may result in denial of equality and may.
accordingly be liable to be condemned for defying the equality doctrine.
This has been illustrated by the provision embodied in Ordinance No. 278 E (d)(ii) of the Ordinance of University of Rajasthan which provides for uniform addition of 5% marks to the students applying for admission to the post graduate course in any one of the five Medical Colleges provided the student has passed his final MBBS Examination from the College to which admission in post graduate course is sought.
The said provision has been held to be unconstitutional and in our opinion the conclusion reached by the High Court is right though the reasoning which has commended itself to this Court is somewhat different.
Three Writ Petitions were instituted in the Rajasthan High Court, (Jaipur Bench by the Writ Petitioners who sought admission to post graduate courses in the Colleges affiliated to the Rajasthan University.
There are five such Medical Colleges at five different centres in Rajasthan, viz Jaipur, Bikaner, Udaipur, Jodhpur and Ajmer.
It appears that for the purpose of securing admission to these Colleges the applicants seeking admission have to appear at a competitive examination called PMG.
The passing of this Examination is a pre condition for securing admission to the PMG course any one of the aforesaid five Colleges in Rajasthan.
The PMG competitive examination is 'common ' for all the five Medical Colleges.
There one syllabus and one combined examination is conducted by th University.
The successful candidates are entitled to addition of 5% marks in the percentage of aggregate marks by way of institutional preference if the concerned candidates had passed the final MBBS Examination.
conducted by the Rajasthan University.
A further addition of 5% of marks by way of institutional preference in the sense of preference dependent on the particular Medical College at which the concerned candidate has passed his final MBBS examination is also provided.
It is this college based institutional preference which has given rise to the present controversy.
Such preference is rooted in the impugned provision namely Ordinance 278 E(d) which deserves to be quoted: "(d) The total marks so obtained shall be converted into PG NO 496 percentage.
The percentage so obtained shall be increased as follows: (i) By 5 if the applicant passed the final M.B.B.S. Examination from the Rajasthan University.
(ii) By another 5 if the applicant passed the Final M.B.B.S. Examination from the same institution for which selections are being made.
" The Writ Petitioners contended that this provision violated the equality principle enshrined in Article 14 of the Constitution of India and was accordingly unconstitutional.
It appears that while each of the five Medical Colleges in Rajasthan is conducting post graduate courses in specified specialities and super specialities, the Doctors who have graduated from all the Medical Colleges in Rajasthan by and large consider admission to post graduate courses at SMS College at Jaipur as most advantageous.
In other words securing admission in post graduate course at Jaipur in SMS College is considered to be achievement and the courses at Jaipur are the most sought after courses.
The reasons underlying this keenness to secure admission in Jaipur College are understandable inasmuch as: (i) there are many more seats available for PG courses; and (ii) there are many more specialities available at the Jaipur College as compared to other Colleges; A Tabular statement reflecting the positions of seats in the five Medical Colleges may best scrutinized: Subject S.M.S. S.N.
R.N.T. S.P.
J.I.N. Total Medical Medical Medical Medical Medical College College College College College Jaipur Jodhpur Udaipur Bikaner Ajmer 1.Genl.
surgery 17(4) 10(2) 8(2) 8(2) 8(2) 51(12) 2.
Medicines21(5) 9(2) 10(3) 10(2) 11(3) 61(15) 3.
T.B.&C.D. 2(1) 1(0) 1(0) 0(0) (0) 4(1) 4 Skin & V.D. 2(()) 1(1) 0(0) 0(0) 0(0) 3(1) PG NO 497 5 Psychiatry 3(1) 0(0) 0(0) 11(0) 0(0) 4(1) 6.
&Obst.
18(4) 8(2) 8(2) 8(2) 8(2) 50(12) 7.
Medicine11(3) 5(1) 4(1) 4(1) 4(1) 28(7) 8.
Anaesthesia 11(3) 4(1) 4(1) 4(1) 4(1) 27(7) 9.Radio Diagnosis 2(0) 2(1) 2(1) 2(1) 2(0) 10(3) 10.
Radio Therapy 1(1) 0(0) 0(0) 1(0) 0(0) 2(1) 11.
E.N.T. 2(0) 1(1) 1(0) 1(0) 1(1) 6(2) 12.
Opthalmology 6(1) 2(0) 2(1) 2(0) 2(1) 14(3) 13.
Orthopaedics 8(2) 2(1) 2(0) 2(1) 2(0) 16(4) 14.
Pathology 4(1) 1(0) 1(0) 1(1) 1(0) 8(2) 15.
Microbiology 2(1) 1(0) 1(1) 1(0) 1(0) 6(2) 16.
P.S.M. 2(0) 1(0) 1(0) 1(1) 1(0) 6(1) 17.
Physical 1(0) 0(0) 0(0) 0(0) 0(0) 1(0) Medicine & Rehabilitation 18.
Anatomy 1(1) 0(0) 0(0) 0(0) 0(0) 1(1) 19.
Physiology 0(0) 1(0) 0(0) 0(0) 0(0) 1(0) 20.
Bio Chemistry 0(0) 0(0) 1(0) 0(0) 0(0) 1(0) 21.
Pharmocology 0(0) 0(0) 0(0) 1(0) 0(0) 1(0) 114(28)49(12) 46(12) 47(12) 45(11) 301(75) B. DIPLOMA I II III IV V VI D .A. 6(1) 0 6(2) 6(1) 0 1(4) DCH.
6(2) 0 6(1) 6(2) 0 1(5) D.P.H. 6(1) 0 0 0 0 6(1) D.G.O. 6(2) 0 6(1) (0) 0 12(3) D.M.R.D. 6(2) 0 (0) (0) 0 6(2) Total: 30(8) 0 18(4) 12(3) 0 60(1) PG NO 498 Note: The figures shown in bracket are the seats reserved for being filled up on all India basis in the year 1988.
The facility for the specialities from serial No. 18 to 21 i.e. Anatomy, Physiology, Bio Chemistry and Phannacology, are available in all the five Medical Colleges in Rajasthan.
But from the year 1988, the facility in these specialities will be provided by rotation.
Now it has to be realized that the aggregate marks for all subjects put together is 2750.
5% of these marks would work out to 137.5 marls.
In the result a candidate from the same College will have an advantage of 137 5 marks over candidates from other Colleges.
In Medical courses where there is intense competition and candidates run neck to neck so often with a difference of a mark or two.
a difference of 137.5 marks by way of College wise institutional preference would virtually make a mockery of the merit criteria.
A candidate, say from Jaipur College, who secures 137.5 marks less than a candidate from Jodhpur, Bikaner, Udaipur or Ajmer will get admission in P. Course at Jaipur in preference to the other more meritorious candidates merely because he passed the M.B.B.S. ;Examination at Jaipur even though all of them secured their marks at the identical competitive examination to all the Collages.
It needs no argument that article 14 is seriously shattered.
Statements filed by the parties in this Court further go to show that some disciplines are available only in particular Colleges and not in other Colleges.
For instance: 1. M.D. in Physical Medicine and Rehabilitation is available only in S.M.S. College.
Jaipur.
T.B. and C.D. ' is not available in Ajmer Medical College.
`Skin and V.D. ' is not available in Udaipur and Ajmer Colleges.
`Psychiatry ' is available only in Jaipur and Bikaner Colleges and not in others 5.
M.D. in 'Radio therapy ' is available only in Jaipur and Bikaner and not in other Colleges.
An analysis of the data reflected in the aforesaid statement and its impact on the fortunes of the students PG NO 499 aspiring for the Post Graduate courses reveal: (i) that a student passing his final degree examination in MBBS from Jaipur would steal a march over the students passing from the remaining four Colleges for with 5% weightage a student from Jaipur would have a far better chance of securing admission in a post graduate course at Jaipur inasmuch as there are as many as 114 seats at the Jaipur Medical College as compared to the number of seats ranging between 45 and 49 in each of the remaining Medical Colleges regardless of the superior merits of students from other colleges.
(ii) a student passing his final degree examination in M.B.B.S. from Jaipur aspiring for admission in P.G. course would have a far better chance of securing admission in the subject of his choice vis a vis students from all other Colleges inasmuch as in each subject the number of seats in the Jaipur College is much larger than in any of the remaining Colleges regardless of his superior merits.
(iii) a candidate from any of the four Colleges other than Jaipur College would have practically no chance of securing admission in certain disciplines such as: (a) Physical Medicine and Rehabilitation (b) Anatomy, (subject to rotation after 1988) (c) Radio therapy and (d) Pychiatry etc.
regardless of his superior merits.
(iv) A candidate with special aptitude for a particular discipline would not get admission in PG course in that discipline unless he belongs to Collage in which the particular discipline is available regardless of his superior merits.
The merit position in relation to the students would also undergo a vast change as is revealed by the tabular statement reproduced hereunder: PG NO 500 Sl.
No. Name Merit Position with 5% without 5% Institutional Institutional weightage weightage S1.No.
Name Merit Position 1.
Dr. Ashok Kumar GuPta 207 171 2.
Dr. Rajeev Ahuja 226 209 3.
Dr. Ashwani Kumar Singh 201 162 4.
Dr. Ishwar Das 177 131 5.
Ratan Lal Tiwari 215 181 6.
Dr. Madhu Sanwal 97 45 The fortunes of the candidates would thus undergo a sea change.
Those who are more meritorious having secured more aggregate marks than others would not get admission to PG courses anywhere in Rajasthan, whereas those with lesser merits would get admission by reason of the 5% College wise preference.
To take the case of the appellants, they having secured aggregate marks of 1650, 1638, 1624, 1617 and 1613 have not been able to secure admission in any discipline.
As against this candidates have secured much less marks already secured admission in one or the other of the 5 Medical Colleges.
In order to illustrate the point, the tabular statements reproduced hereinbelow may be glanced at: Medical College Aggregate marks of Discipline last candidate allotted Jodhpur 1548 M.D. (Anaesthesia) Udaipur 1626 M.S. (Surgery) Jaipur 1602 M.D. (Anaesthesia) Bikaner 1622 M.D. (Microbiology) Statement showing list of candidates, less meritorious (that the appellants)who have secured admission: PG NO 501 College Aggregate marks Discipline allotted Jodhpur 1610, M.D. (Medicine) 1605 1601 (Skin & V.D.) 1606, 1595, 1590 1576, 1577 1582, 1570, 1548 M.S. (Surgery) M.S. (Orthopaedics) M .D .
(Anaesthesia) 1638 M . D .
(Medicine) 1637, 1635, 1626 M.D. (In TB & CD,) 1629, 1610, 1604 Psychiatry (Skin & V.D.) M.S. (Surgery) 1620 M . S .
(Orthopaedics) 1617, 16()3, 1602 M.D. (Anaesthesia) What emerges from the above statements is that while one of the appellants who has secured 1650 marks in the common competitive examination has not been able to secure admission in P.G. Course in any College in Rajasthan, a PG NO 502 candidate who secured about 100 marks less (1548 marks) in the very same examination has been able to secure admission, the rest of the appellants havr not been able to secure admission anywhere though they have demonstrably secured more marks and are more meritorious than The aforesaid 22 persons.
This analysis exposes the extremely unfair and unjust impact of the impugned rule.
This factor coupled with the four factors highlighted earlier leave no room for doubt that while on the face of it the impugned rule appears to extend or accord equal treatment of 5 weightage to the students of each of the five Medical Colleges, in actual operation it bring, about oppressive and obnoxious inequality.
Once the veil of 'apparent equality is pierced.
to the offensive 'reality '.
Such being the position the constitutional validity of the impugned rule cannot be sustained.
It has to be buried unceremoniously as unconstitutional being violate of article 14 of the Constitution of India.
The High Court has struck down as unconstitutional the impugned provision embodied in note (d)(ii) of Ordinance 278 E mainly on the ground that coupled with the institutional preference accorded under clause (i) it would virtually amount to making 100% reservation in farour of the students of the Rajasthan University in the sense that no other student of any other University would have any reasonable chance to secure admission to these courses.
relying in the principle enunciated in Nidamarti Mahesh Kumar vs State of Maharashtra & Ors., ; 3 SCR 1302, the reasoning is reflected in the following passage extracted from paragraph 25 of the judgment under appeal: "Thus after having given 5% weightage on the ground of institutional preference that a candidate has passed his final MBBS Examination from the University of Rajasthan, further 5% weightage on the ground that he has passed his MBBS final examination from the Medical College where he seeks admission.
in Post Graduate course, is unreasonable able and arbitrary and does not stand the touchstone of Article 14 of the Constitution.
If ]0% weightage is given as aforesaid it will come to 275 marks and with this increase in marks no candidate from University other than University of Rajasthan can get admission to Post Graduate course in any one of the medical colleges.
It is against the equality clause as it amounts to cent per cent reservation as 105 weightage in admission to Post Graduate course to a student, 5% weightage on the University basis PG NO 503 and 5% on the institutional basis, amounts to total exclusion of candidates of other Universities.
We have already referred to the admissions for the years 1986 and 1987 and at the cost of repetition we may say that a look at Schedules `A 'and `B ' regarding admissions in SMS Medical College, Jaipur in Post Graduate courses for the years 1986 and 1987 respectively will show that not a single candidate from the University other than University of Rajasthan could seek admission. " Since however a number of seats are now (since l988) reserved in each College for candidates on an All India basis as disclosed by the tabular statements reproduced in the earlier part of this judgment.
we prefer to rest our decision on the reasoning indicated earlier.
These, are the reasons which impelled us to pass the final order as under on July 21 1988: "ORDER I The appeals fail and are dismissed.
II Ordinance 278 E(d)(ii) of the Ordinances of the University of Rajasthan is declared as unconstitutional and quashed.
III Admissions to the Post Graduate Degree Courses in all the Medical Colleges at all centres in Rajasthan shall hereafter be made inaccordance with the decision of the High Court rendered on August 7, 1987 in the Writ Petitions giving rise to the present appeals which is hereby confirmed.
IV Future vacancies including unfilled vacancies to the Post Graduate Degree Courses in all the Medical Colleges in Rajasthan shall hereafter be filled on the basis that Ordinance 278 E(d)(ii) is invalid provided however that those students who have been admitted to Post Graduate PG NO 504 courses pursuant to the interim order of this Court will not be disturbed and will be permitted to complete their courses.
Unfilled vacancies may be filled in accordance with and in the light of this order even at this juncture if it can be so done.
VII Reasons will follow.
VII There will be no order as to costs.
" R.S.S. Appeal dismissed.

summary:
The respondents had sought admission to post graduate courses in the five medical colleges affiliated to the Rajasthan University through a competitive examination which was common for all these five colleges.
They were not able to secure admission in any discipline even though they had secured more marks as compared to the successful candidates who had been granted additional marks on the basis of Ordinance 278 E(d)(ii) of the Ordinance of University of Rajasthan.
Under this proviso the successful candidates were entitled to a uniform addition of 5% marks in the percentage of aggregate marks if they had passed the final M.B.B.S. examination from the same institution for which selection was being made.
The respondents challenged this provision as violative of the equality principle enshrined in Article 14 of the Constitution.
The High Court struck down as unconstitutional the impugned provision embodied in note (d)(ii) of Ordinance 278 E. Dismissing the appeal, it was, HELD: (1) The aggregate marks for all subjects put together is 2750.
5% of these makrs would work out to 137.5 marks.
In the result, a candidate from the same college will have an advantage of 137.5 marks over candidates from other PG NO 493 PG NO 494 colleges.
In medical courses where there is intense competition and candidates run neck to neck so often with a difference of a mark or two, a difference of 137.5 marks by way of college wise institutional preference would virtually make a mockery of the merit criteria.
[498C D] (2) This factor coupled with other factors leave no room for doubt that while on the face of it the impugned rule appears to extend or accord equal treatment of 5% weightage to the students of each of the five Medical College, in actual operation it brings about oppressive and obnoxious inequality.
Once the veil of apparent equality is pierced, the ugly inequality stares one in the eyes which are opened to the offensive 'reality ' [502B C] (3) Admission to post graduate courses st SMS College at Jaipur being considered as most advantageous, a candidate from Jaipur College will get admission in P.G. Course at Jaipur in preference to the other more meritorious candidates merely because he passed the M.B.B.S. examination at Jaipur even though all of them secured their marks at the indentical competitive examination to all the Colleges.
It needs no argument that Article 14 is seriously shattered.
[498D] (4) What may 'appear ' to be equal treatment accorded in obeisance to the equality doctrine embodied in Article 14 of the Constitution in its application in 'reality ' may result in denial of equality and may accordingly be liable to be condemned for defying the equality doctrine.
[495B] (5) Such being the position the constitutional validity of the impugned rule cannot be sustained.
It has to be buried unceremoniously as unconstitutional being violate of article 14 of the Constitution of India.
[502C D] Nidamarti Mahesh kumar vs State of Maharashtra, AIR 80 SC 1362 (1980) 3 SCR 1302, referred to.


judgement:
Appeal No. 128 of 1954.
Appeal from the judgment and decree dated January 25, 1951, of the Nagpur High Court in L. P. Appeal No. 10 of 1945, arising out of the judgment and decree dated March 29, 1945, of the said High Court in Second Appeal No. 453 of 1941, against judgment and decree dated April 5, 1941, of the Addl.
District Judge, Yeotmal in Civil Appeal No. 47 A of 1940 arising out of the judgment and decree dated September 14, 1940, of the Addl.
Sub Judge, First Class, Yeotmal in Civil Suit No. 72 A of 1940.
Radhey Lal, for the appellant.
P. N. Bhagwati, J. B. Dadachanji, section N. Andley and Rameshwar Nath, for respondent No. 1.
R. H. Dhebar, for respondent No. 2. 1958.
March 31.
The following Judgment of the Court was delivered by SINHA J.
The main question in controversy in this appeal on a certificate of fitness granted by the High Court of Judicature at Nagpur (as it then was), is 335 whether the provisions of the Berar Land Revenue Code, 1928 (which will hereinafter be referred to as the Code), bar the suit out of which this appeal arises.
In order to appreciate the points in controversy in this appeal, it is necessary to state the following facts: One Bhagchand Jairamdas was the occupant of a plot, situated in the District town of Yeotmal in what was then called the Province of Central Provinces and Berar, measuring 1,91,664 square feet in area, on which stood a ginning factory and its appurtenant buildings.
Bhagchand aforesaid had executed a mortgage bond in favour of one Abubakar.
The mortgagee aforesaid instituted a suit on the original side of the Bombay High Court, being Civil Suit No. 1543 of 1934, to enforce the said mortgage.
A Receiver was appointed on October 20, 1936, during the pendency of the suit in respect of the mortgaged properties including the plot described above.
The land and the buildings and the factory, have been valued by the courts below at about Rs. 70,000.
The revenue payable in respect of the plot in question, at the rate of Rs. 129 per year, appears to have remained in arrears for two years, namely, 1936 37 and 1937 38.
The Sub Divisional Officer of Yeotmal, functioning as the Deputy Commissioner under the Code, sold at auction the plot in question, free of all encumbrances, on December 17, 1937, without impleading or giving notice to the Receiver who was in charge of the estate of Bhagechand, as aforesaid.
At that auction, Kanhaiyalal, the appellant, purchased the property for Rs. 270 only.
The sale in his favour was confirmed on January 26, 1938, bit, it appears that the then Receiver had sent Rs. 275 by a cheque to the Sub Divisional Officer concerned, in full payment of the arrears of land revenue, and thus, to have the sale set aside.
But it was received two days after the confirmation of the sale.
Before the confirmation of the sale, the Receiver had made an application on Januaryt 19, 1938, to the Sub Divisional Officer, offering to pay the arrears, but it appears that through some bungling in the office, the attention of the Sub Divisional Officer was not drawn to the application until after the 336 confirmation of the sale.
The Receiver then applied for a, review of the order confirming the sale, and the Sub Divisional Officer allowed the application and set aside the sale.
The Deputy Commissioner, Yeotmal, and the Commissioner, Berar, also upheld the order setting aside the sale.
Thereupon, the auction purchaser, Kanhaiyalal, moved in revision the Financial Commissioner who was then the highest Revenue authority under the Code, against the order of the Commissioner, and ultimately, the order setting aside the sale, was vacated by the Financial Commissioner on the ground that there was no application under s.155 or section 156 of the Code.
The then Receiver, having ultimately failed in having the sale of the valuable properties by the revenue authorities, set aside, instituted the suit out of which this appeal arises, impleading the Provincial Government of Central Provinces and Berar, as the first defendant, Kanhaiyalal, the auction purchaser, as the second defendant, and Dulichand Bhagchand as the third defendant.
He prayed for a declaration that the auction sale held on December 17, 1937, was void, on a number of grounds including the grounds that no notice of demand had been sent to the Receiver who was in charge of the property; that the attachment and sale proclamation had not been effected according to law, and that though the revenue authorities were aware of the appointment of a Receiver of the property, by the Bombay High Court, they did not implead the Court Receiver.
This suit was contested on the preliminary ground that it was barred 157 and 192 of the Code.
That with the trial court and the onal District Judge, Yeotmal).
High Court of Judicature at Nagpur, the case was heard by a Single Judge, Nivogi J. who allowed the appeal by judgment dated March 29, 1945.
On a Letters Patent appeal by the auction purchaser, Kanhaiyalal, the matter was heard by a Division Bench (Mangalmurti and Deo JJ.) The Bench affirmed the decision of the learned Single 337 Judge, and held that the suit was not barred.
Hence, this appeal.
It was urged on behalf of the appellant, the auction purchaser, who was the second defendant in the suit, and who only is interested in having the sale in question, sustained by the Court, that the sale without notice to the Receiver or without impleading him, was not void but only irregular, and secondly, that in any event, the suit was barred by the provisions of sections 157 and 192 of the Code.
The first defendant, the State Government, which was represented by Mr. Dhebar, prayed that, in any event, there should be no order for costs either in favour of or against the Government.
On behalf of the plaintiff respondent, it was urged that property in the hands of a Receiver is custodia legis, and is exempt from all judicial processes except to the extent that the Court which has appointed the Receiver, may accord permission to the Receiver or to third parties to institute proceedings in respect of the property;, that no permission of the Bombay High Court which had appointed the Receiver, having been taken for the sale of the property, the sale held without such a permission, is a nullity; that, at any rate, such a sale was not a mere irregularity but an illegality and could be avoided by suit; that there being no valid attachment of the property with notice to the Receiver, the attachment itself was illegal, and on that ground also, the sale was void; and lastly, that the suit was not barred by the provisions of the Code, as held by the High Court.
The facts as set out above, are not in controversy.
During the time that the proceedings culminating in the sale of the property, had been pending in the Revenue Courts, the Receiver was in effective control and management of the property.
The revenue authorities had been apprised of the fact that the Receiver appointed by the Bombay High Court, was in charge of the property.
As a matter of fact, an attempt had been made by the revenue authorities, in the first instance, to approach the Collector of Bombay for realising the 43 338 arrears of land revenue in respect of the plot in question, but the mistake was that no approach was made to the Bombay High Court or even to the Receiver for paying up the arrears of the Government demands.
It was certainly the duty of the Receiver to see to it that all public demands in respect of the properties in his charge, were paid in due time, and in.
this case, certainly, the arrears in respect of the year 1937 38, which fell due in August, 1938, accrued in his time, if not also the arrears in respect of the previous year 1936 37.
If the Receiver had been more vigilant, or if the revenue authorities had made the demand from the Receiver in respect of the arrears, they may have been paid up in due course without the necessity of putting the property to sale.
So far as the Indian Courts are concerned, it is settled law that a sale held without making attachment of the property, or without duly complying with the provisions of the law relating to attachment of property, is not void but only voidable.
Rule 52 of 0.
21 of the Code of Civil Procedure, requires that where the property is in the custody of any court or public officer, attachment shall be made by a notice to such court or officer.
But the absence of such a notice would not render the sale void ab initio, because the jurisdiction of the court or the authority ordering the sale, does not depend upon the issue of the notice of attachment.
It is also settled law that proceedings taken in respect of a property which is in the possession and management of a Receiver appointed by Court under 0. 40, r. I of the Code of Civil Procedure, without the leave of that Court, are illegal in the sense that the party proceeding against the property without the leave of the Court concerned, is liable to be committed for contempt of the Court, and that the proceedings so held, do not affect the interest in the hands of the Receiver who holds the property for the benefit of the party who, ultimately, may be adjudged by the Court to be entitled to the same.
The learned counsel for the respondent was not able to bring to our notice any ruling of any Court in India, holding that a sale held without notice to the Receiver or 339 without the leave of the Court appointing the Receiver in respect of the property, is void ab initio.
In the instant case, we do not think it necessary to go into the question raised by the learned counsel for the respondents that a sale of a property in the hands of the Court through its Receiver, without the leave of the Court, is a nullity.
The American Courts appear to have taken the view that such a sale is void.
In our opinion, it is enough to point out that the High Court took the view that the sale was voidable and could be declared illegal in a proper proceeding or by suit.
We shall assume for the purposes of this case that such a sale is only voidable and not void ab initio.
On the assumption that the sale held in this case without the leave of the Court and without notice to the Receiver, is only voidable and can be declared illegal on that very ground, the suit had been instituted for the declaration that the sale by the revenue courts was illegal.
The plaint was subsequently amended by adding the relief for recovery of possession, because in the meanwhile, the auction purchaser had obtained delivery of possession of the property through the revenue authorities, some time in 1940.
The general rule that property in custodia legis through its duly appointed Receiver is exempt from judicial process except to the extent that the leave of that court has been obtained, is based on a very sound reason of public policy, namely, that there should be no conflict of jurisdiction between different Courts.
If a court has exercised its power to appoint a Receiver of a certain property, it has done so with a view to preserving the property for the benefit of the rightful owner as judicially determined.
If other Courts or Tribunals of co ordinate or exclusive jurisdiction were to permit proceedings to (lo on independently of the Court which has placed the custody of the property in the hands of the Receiver, there was a likelihood of confusion in the administration of justice and a possible conflict of jurisdiction.
The Courts represent the majesty of law, and naturally, therefore, would not do anything to weaken the rule of law, or to permit any proceedings 340 which may have the effect of putting any party in jeopardy for contempt of court for taking recourse to unauthorised legal proceedings.
It is on that very sound principle that the rule is based.
Of course, if any Court which is holding the property in custodia legis through a Receiver or otherwise, is moved to grant permission for taking legal proceedings in respect of that property, the Court ordinarily would grant such permission if considerations of justice require it.
Courts of justice, therefore, would not be a party to any interference with that sound rule.
On the other hand, all Courts of justice would be only too anxious to see that property in custodia legis is not subjected to uncontrolled attack, while, at the same time, protecting the rights of ' all persons who may have claims to the property.
After making these general observations, we have to examine the provisions of the Code, to find out how far that general rule of law is affected by those provisions.
The Berar Land Revenue Code provides that " land revenue assessed oil any land shall be a first charge on that land and on the crops, rents and profits thereof " (section 131).
Section 132 makes the occupant in respect of the land in question " primarily liable for the payment of the land revenue ", but section 133 provides that in case of default of payment of land revenue by the person who is 'primarily liable ', " the land revenue including arrears shall be recoverable from any person in possession of the land.
" Hence, in this case, the revenue authorities could legally call upon the Receiver to pay the arrears of land revenue, and as pointed out above, it would have been the duty of the Receiver to pay up those arrears.
Under section 135, the Receiver would be deemed to be a, I defaulter ' in respect of the land revenue.
Section 140 makes the statement of account, certified by the Deputy Commissioner or the Tahsildar, conclusive evidence of the existence of the arrears and of the person shown therein as the defaulter, for the purposes of the Chapter in which the section finds a place, namely, Chapter XII, headed as, " Realization of Land Revenue ".
One of the modes laid down in 341 s.141 (e) of the Code for the recovery of arrears land revenue, is " attachment and sale of the, holding on which the arrear is due.
" If a sale is held under the provisions of section 141 (c), section 149 (2) provides that such a sale " shall transfer the holding free of all encur brances imposed on it. . . .
Thus, the appellant, if the sale in his favour was a valid on acquired the property said to be worth Rs. 70,000, from from all encumbrances including the mortgage money due on the property, and for which the suit in the Bombay High Court had been instituted, even though he paid Rs. 270 only for it.
The principal question for determination in the appeal, therefore, is whether, in view of the special provisions of the Land Revenue Code, the presesuit could be entertained by the civil court.
It beyond question that the Code lays down a special machinery for the realization of Government reven which has been declared as the paramount charge the property.
It lays down a summary procedure for the realization of public revenue, and all question coming within the purview of the Code, must I determined according to the procedure laid down that Code.
Hence, in so far as the Code has laid do," specific rules of procedure, those rules and no other must apply in the determination of all controversies coming strictly within the terms of the statute One thing is absolutely clear, namely that the Code does not lay down any specific rules in respect of pro party which has been placed in custodia legis.
The Code contemplates regular payment of Government revenue by the owner, possessor or the occupant, the property in respect of which Government revenue is payable.
It also takes notice of devolution of interest by transfer or succession, but it does notice contemplate the inter position of a Receiver in respect of the property subject to the payment of Government revenue.
This aspect of the matter becomes important because the only point for determination 'in, the appeal, is whether the auction sale held under the Code, without the leave of the Court or without notice to the Receiver appointed by the Court, should affair 342 Le interest which the Bombay High Court had, by pointing the Receiver, sought to protect, if the sale favour of the appellant, stands.
The mortgagee 's security for the payment of the mortgage debt, in the vent of the auction sale being sustained, is to that tent adversely affected without his having any voice the matter.
Perhaps, if the Receiver were not there, the mortgagee may have been more vigilant and by have taken timely steps to pay the Government demand in respect of the property if only for conserving it for satisfying his own dues on the mortgage.
It has been strenuously argued on behalf of the appellant that the present suit cannot be maintained in few of the provisions of the Code, particularly, 157 and 192 which we now proceed to examine.
action 157 is in these terms: " 157.
(1) If no application under section 156 is made within the time allowed therefor, all claims on the ground of irregularity or mistake shall be barred.
(2) Nothing in sub section (1) shall bar the institution of a suit in the civil court to set aside a sale on the ground of fraud or oil the ground that the arrear for which the property is sold was not due.
" his section makes reference to proceedings under the previous.
Section 156 contemplates an application for setting aside the sale " on the ground of some material irregularity or mistake in publishing or conducting it ", at the instance of a person " whose interests are affected by the sale ".
Assuming that in the instant case, the Receiver is a person whose interest can be said to have been affected by the sale, the ground on which he could have moved the Revenue athorities for setting aside the sale, was limited to material irregularity or mistake in publishing or Inducting the sale.
This provision proceeds on the assumption that the necessary parties have been apprised of the proceedings relating to the realization Government revenue.
It assumes that the proceedings have been properly taken, but there may have been some material irregularity or mistake at a later age of the proceedings, namely, in publishing or enducting the sale.
It is clear that the ground on 343 which the present suit is based, would not be covered by the crucial words quoted above, on which alone section 156 could be availed of " Publishing " the sale has reference to that part of the proceedings which relates to the sale proclamation, and conducting ' the sale has reference to acts or omissions, at a still later stage, of some officer or public authority who is entrusted with holding the sale.
It is clear, therefore, that the provisions of section 156 are out of the way of the plaintiff in this suit.
So also are the provisions of section 155 which relate to an application for setting aside a sale on deposit of arrears within 30 days from the date of the sale.
An application under section 155 can only be made by a person "either owning such property or holding an interest therein by virtue of a title acquired before such sale ".
A Receiver appointed under 0.
40 of the Code of Civil Procedure, unlike a Receiver appointed under the Insolvency Act, does not own the property or hold any interest therein by virtue of a title.
He is only the agent of the court for the safe custody and management of the property during the time that the court exercises jurisdiction over the litigation in respect of the property.
Section 157(1) of the Code, 'which positively bars a suit, is in express terms, confined to " all claims oil the ground of irregularity or mistake ".
It does not cover grounds other than those for example, if a sale is attacked on the ground that the owner of the property was dead at the date of the sale, or that there had been some fraud in connection with the sale proceedings, or that he had been kept out of ' his remedy under the Code by some fraudulent act, or that there was really no arrear due in respect of the property sold, or such allied grounds suits based on grounds like these, would not be within the prohibition of section 157(1).
Section 157(2) specifically saves certain suits of the kind referred to therein, but it does not necessarily follow that suits not directly within the terms of sub section
(2) of section 157, are covered by the provisions of the positive bar laid down by section 157(1).
There may be a tertium quid between the grounds covered by section 157(1) and section 157(2).
It is clear that 344 the present suit is not covered either by the terms of section 157(1) or those of section 157(2).
As already indicated, the position emerging in the present controversy, is not covered by the express provisions of section 157.
But it has been argued on behalf of the appellant that even though the provisions of section 157 do not cover the ground raised in the present suit, section 192(1) of the Code, bars the suit.
Section 192(1) is in these terms: " 192.
(1) Except as otherwise provided in this Law, or in any other enactment for the time being in force, no civil court shall entertain any suit instituted or application made to obtain a decision or order on any matter which, the Provincial Government or any Revenue Officer .
is, by this Law, empowered to determine, decide or dispose of; and in particular and without prejudice to the generality of this provision, no civil court shall exercise jurisdiction over any of the following matters: " It is not necessary to set out the clauses (a) to (p) under sub section
(1) of section 192, because none of those clauses, has been claimed clearly to cover the present suit.
Learned counsel for the appellant contended that setting aside a sale has been specifically provided for by the Code, which the several authorities under the Code have been empowered to determine, decide or dispose of, within the meaning of the section.
There is no doubt that the matter of the setting aside of a sale by payment of the arrears under section 155, and on the specific grounds under section 156, as discussed above, has been provided for in the Code, but, as already observed, the suit does not raise any ground which is covered by the specific provisions of the Code for setting aside a sale.
Strictly speaking, this is a suit for a declaration that the sale held by the revenue courts, does not affect the interests which are in the custody of the Court through its Receiver, and for recovery of possession as against the auction purchaser who is alleged to be in wrongful possession of the property which should have continued in possession of the Receiver, under the directions of the Bombay High Court.
In short, this is not a suit simpliciter to 345 set aside the sale held by the revenue authorities but a suit for a declaration and a consequential relief A suit for such a declaration on the grounds taken by the Receiver and for possession, is not a matter, which the several authorities under the Code, have been empowered to determine, decide or dispose of.
But the learned counsel for the appellant further contended that section 192 takes in its sweep all the relevant provisions of the Code bearing on the rights of the Receiver to have a sale set aside.
Undoubtedly, it is so, but, as pointed out above, the Receiver could not have brought the present controversy within the terms of any one of those sections.
In this connection, reliance was also placed on the provisions of sections 32, 38 and 159 of the Code.
In our opinion, those sections have no bearing on the present controversy.
Section 32 deals with appeals and appellate authorities, and lays down the hierarchy of officers to deal with an appeal.
Section 38 prescribes the authorities to deal with revisional matters, and section 159 conserves the power of the Deputy Commissioner to pass orders suo moto that is to say, where no application has been made under section 155 or section 156, or even beyond the period of thirty days, which is the prescribed period for making applications under those sections.
Thus, if the leave of the Bombay High Court had been taken to initiate proceedings under the Code, for the realization of Government revenue, or if the Receiver had been served with the notice of demand, it would have been his bounden duty to pay up the arrears of land revenue and to continue paying Government demands in respect of the Property in his charge, in order to conserve it for the benefit of the parties which were before the Court in the mortgage suit.
If such a step had been taken, and if the Receiver, in spite of notice, had allowed the auction sale to be held for non payment of Government demands, the sale would have been valid and subject only to such proceedings as are contemplated under sections 155 and 156 of the Code.
In that case, there would have been no conflict of jurisdiction, and therefore, no question 44 346 of infringing the sound principle discussed above.
But the absence of the leave of the Court and of the necessary notice to the Receiver, makes all the difference between a valid and an illegal sale.
The High Court has also relied upon the well known rule of natural justice audi alteram partem as another reason for holding the sale to be illegal.
It is not necessary for the purposes of this case to pronounce upon the difficult question of how far a principle of natural justice can override the specific provisions of a statute.
For the reasons given above, we agree with the High Court in its conclusion that the auction sale impugned in this case, was illegal, and that the suit was not barred by the provisions of the Code.
The appeal is, accordingly, dismissed with costs to the Receiver who alone has contested the appeal.
Appeal dismissed.

summary:
The appellant was the auction purchaser of the property at a revenue sale held under the provisions of the Berar Land Revenue Code, 1928, for recovery of land revenue due.
The property at the time of the attachment and sale was in the possession of a Receiver appointed under Or. 40, R. i of the Code of Civil Procedure by the Bombay High Court.
Notice to the Receiver, however, was not given of the attachment and sale of the property, nor was any leave of the Court taken for the sale.
In a suit instituted by the Receiver for a declaration that the sale was a nullity or, at any rate, was illegal and liable to be set aside, the auction purchaser contended that the sale without notice to 334 the Receiver or without impleading him was not void but only voidable and that, in any event, the suit was barred by the provisions of sections I57 and 192 of the Berar Land Revenue Code, 1928: Held, (i) that the sale was illegal in the absence of the leave of the Court and the necessary notice to the Receiver; (2) that the suit was not barred by any of the provisions of the Code.
Sub section (1) of section I57 of the Code which bars the institution of a suit to set aside a sale is confined only to claims on the ground of irregularity or mistake in publishing or conducting the sale as referred to in section 56, and suits based on other grounds, including those referred to in sub section
(2) Of section 157, are not within the prohibition of sub section
Section 192 of the Code is not applicable as the suit is not one simpliciter to set aside the sale held by the revenue authorities, but one for a declaration and consequential relief on the grounds taken by the Receiver not covered by the specific provisions of the Code for setting aside the sale which the several authorities under the Code have been empowered to determine, decide or dispose of within the meaning of section 192(I).