judgement:
Appeal No. 242 of 1960.
Appeal from the judgment and order dated September 11, 1957, of the Andhra Pradesh High Court in Writ Petition No. 201 of 1952.
R. Can apathy Iyer, T. V. R. Tatachari, D. Venkatappaya Sastri and P. D. Menon, for the appellants.
K. Bhimasankaram and T. Satyanarana, for the respondent.
, March 30.
The Judgment of the Court was delivered by WANCHOO, J.
This appeal on a certificate granted by the Andhra Pradesh High Court raises a question of the constitutionality of the Madras Estates Land (Reduction of Rent) Act, No. XXX of 1947, as amended, (hereinafter referred to as the Act) and a notification issued thereunder.
The brief facts necessary for present purposes are these.
The respondent was the sole inamdar of village Chinnavenkatapuram in the Parlakimidi zamindari in the district of Srikakulam.
The legislature the composite State of Madras passed the Act, which came into force from January 7, 1948, to provide for the reduction of rents payable by ryots in estates governed by the Madras Estates Land Act, No. 1 of 1908, approximately to the level of the assessments levied on lands in ryotwari areas in the neighborhood and for the collection of such rents exclusively by the State Government.
The Act applied to all estates as defined in section 3 (2) of the Madras Estates Land Act.
Section 2 provided for the appointment of a special officer for any estate or estates for the purpose of recommending fair and equitable rates of rent for the ryoti lands in such estate or estates and laid down the procedure to be followed by the Special officer for 157 such purpose, and gave power to the special officer to determine after necessary enquiries the extent if any to which the rates of rent payable for each class of ryoti lands should in his opinion be reduced and to fix the rates of rent payable for each class of ryots after such reductions.
Under a. 3, the special officer had to submit a report after completion of his inquiry to the State Government on the two points mentioned above and after considering the recommendations of the special officer and the remarks of the Board of Revenue thereon, the State government was empowered by order published in the gazette to fix the rates of rent in respect of each class of ryoti land in each village in the estate, and the order so passed by the State Government was to take effect from the commencement of the Fasli year 1357.
Section 3 (4) then provided for the recovery of rents so fixed by the State Government and the amount so recovered in respect of each year, after deducting therefrom the cost of such recovery as may be determined according to the Rules to be framed and also after deducting the peshkash, cesses and other moneys due from the landholder to the State Government, was to be paid to the landholder.
Section 3 (7) laid down that the landholder shall not be entitled to collect rents thereafter.
Sections 5 and 6 made special provisions with regard to religious, educational and charitable institutions.
Section 7 provided for the framing of rules and sections 4, 8 and 9 made incidental provisions which are however not material for our purposes.
In pursuance of the provisions of the Act a notifications was issued by the State Government with respect to the estate of the respondent fixing the rates of rent for various classes of ryoti lands in the estate.
In the case of wet and dry lands the rate was reduced to half of the then existing rates and in the case of dry land (when agraharam well water 158 was used) the rate was reduced to one sixth of the existing rate.
Thereupon the respondent filed a writ petition on March 21.
1952, challenging the above notification.
The first challenge was on the ground that the estate of the respondent was not an estate within the meaning of the Madras Estates.
Land Act and therefore the Act was not applicable to it.
Secondly, it was contended that the reduction in the 'rents made by the notification was so drastic as to result virtually in depriving the respondent of his right to hold and enjoy his property, as the out goings were far in excess of the income after the reduction in rents.
Consequently, the notification amounted to an unreasonable restriction on the right of the respondent to hold property under article 19 (1) (f) of the constitution.
The petition was opposed on behalf of the State and it was contended that it was incorrect to say that the outgoings were more than the income after the reduction of rents made by the impugned notification.
It was pointed out that after meeting the cess, the quit rent and ten per centum for collection charges, the respondent would have a net income of Rs. 603/ and the reduction in the circumstances could not be said to be so drastic as to virtually deprive the respondent of his right to hold property under article 19 (1) (6).
When the matter came to be argued before the High Court, three points were raised by the respondent, namely, (i) that the village in dispute was not an estate, (ii) that even if it was an estate the notification under the Act offended article (19) (1) (f) of the Constitution because of the drastic nature of the reduction, and (iii) that the Act itself was ultra vires for the reason that it was contrary to the terms of article 31 of the Constitution and section 299 of the Government of India Act, 1935.
The third of these contentions, though it was not raised in the petition by the respondent, was eventually referred to a Full 159 Bench and the question put to the Full Bench was in these terms: "Whether the decision in Rajah of Bobbili V. State of Madras (1) insofar as that Madras Act XXX of 1947 does not offend against section 299 of the Government of India Act, 1935, is good law?" It may be mentioned here that the Act was challenged soon after it was passed by the Rajah of Bobbili on various grounds one of which was that the Act was bad as it contravened section 299 (2) of the Government of India Act.
This challenge to the Act was repelled by the Madras High Court in the case of Rajah of Bobbili(1) and it was held that mere reduction of rent was not acquisition of property within the meaning of section 299 (2) of the Government of India Act and the effect of the Act was held to be that the landholder continued to be the owner of the estate as before, his title being left untouched.
It was further pointed out that it was the tenant who was entitled 'to possession, the right of the landholder being only to recover rent and that right again was left unaffected by the legislation, the only change being that the collection of rent was to be made not by the landholder but by the Government.
Further though the learned Judges in Rajah of Bobbili 's case (1) were apparently of opinion that the acquisition contemplated by section 299 (2) of the Government of India Act was acquisition of title, they went on to say that even assuming that section 299 (2) of the Government of India Act, covered cases of posses sion, there was no such taking of possession in the case before them tinder the Act as would attract that provision.
The reference to the Full Bench in the High Court was due to the challenge to the narrow view of the word "acquisition" which was said to have been taken in Rajah of Bobbili '8 case (1) in view of (1) 160 certain later decisions of this Court.
Eventually, however, the Full Bench held that even if a wider interpretation was given to the word " 'acquisition ' as used in section 299(2) of the Government of India Act, there was no deprivation of the property of the landholder by the Act within the meaning of s.299(2) and therefore the decision in the Rajah of Bobbili 's case (1) was still good law.
The Full Bench also held that the provisions of the Act only regulated the relationship of landholder and tenant and as there was no acquisition by the Government even in the wider meaning to be given to the word "acquisition" in section 299(2) of the Government of India Act, the Act was not hit by article 19(1)(f) and was a reasonable restriction on the right to hold property and in the interest of the general public.
The Full Bench further held that, though prima facie .the reduction of rents to the ryotwari level could not be said to be unreasonable, the view expressed in the Rajah of Bobblli 's case (1) that if in a particular case the result of the reduction of rates of rent had the effect of total or substantial deprivation of the landholder of his net income it would offend article 19(1)(f) of the Constitution.
After this opinion of the Full Bench, the matter was again placed before a Division Bench, for final decision.
At that stage it seems that the point that the village in dispute was not an estate was given up and the only point urged was that the reduction was so drastic as to amount to an unrea sonable restriction on the fundamental right to hold property under article 19(1)(f).
The learned Advocate General placed before the Bench the effect of the reduction based on the notification of June 27,1950.
It was found that prior to the reduction the net income of the respondent was Rs. 3,875/ , and after the reduction his net income was reduced to Rs. 457/13/8.
It was urged by '.
the learned Advocate General that the respondent was getting the rent at the highest rate prevalent in the ryotwari (1) 161 areas of the district and that it could not be said that the reduction of rates of rent to the level of the highest ryotwari rate was an unreasonable restriction on the right of the respondent to hold property.
The Bench, however, observed that though ordinarily the reduction of rates of rent of the ryotwari level might be reasonable, there might be circumstances in a particular case to hold that the.
reduction was so drastic that it would be an unreasonable restriction.
It was observed that the State might reduce the rent to such a level after deducting the legal charges and the cost of collection fixed on an arbitrary basic that there might be nothing left to the landholder.
In such a case in the name of regulation of rents and collection thereof the State took away the grain and gave the husk to the landholder.
The Bench then added that though it was easy to state the principle it was difficult to apply it to the facts of each case.
It then :went on to consider the circumstances under which it could be held that reduction was so drastic that the landholder was substantially deprived of his income., and was of opinion that having regard to the object of the Act, if the income of the landholder after reduction of rents did not fall below 25 per centum of his previous income it could be held that the reduction was not an unreasonable restriction on the right to hold property enshrined in article 19 (1) (f).
As in this case, however, the income of the respondent fell far below 25 per centum of the income which be was getting before the reduction, the Bench held that the notification was bad.
Thereupon the State Government asked for a certificate to appeal to this Court, which was granted; and that is how the matter has come up before us.
So far as the constitutionality of the Act is concerned, there was no serious challenge to it by the respondent.
If one refers to the main provisions of the Act relating to reduction of rents 162 which we have already set out above, it will appear that the object of the Act was to put a check on rack renting in estate as defined in the Madras Estates Land Act.
As such agricultural tenants formed a considerable group of cultivators in the State, it was thought necessary to ameliorate their condition.
The Act was therefore enacted under the powers conferred on the provincial legislature under item 21, of List II of Schedule VII to the Government of India Act dealing with land.
It provided for reduction of rent to the level at which the rents prevailed in the neighbouring area where there was ryotwari settlement.
In these circumstances it cannot possibly be said that the reduction of the prevailing rents to the ryotwari level was an unreasonable restriction on the right of the landholder of an estate to hold property under article 19 (1) (f).
We must therefore hold that the Act is constitutional and lays down reasonable restrictions on the right of the landholder to hold his estate.
The attack based on reading the term ',acquisition" in s.299 of the Government of India Act, 1935 in the wide sense of any interference with property even when the title thereto does not pass to the State, which was the point debated before the Full Bench is no longer a live issue since the matter is concluded against the respondent by the decision of this Court in Guru Dutt Sharma vs State of Bihar (1).
This brings us to the main point that has been argued before us by counsel for the parties.
It is urged on behalf of the appellant that the High Court was wrong in holding that where the reduction is such that the previous net income is reduced below 25 per centum there would be an unreasonable restriction on the right to hold property, merely because of this circumstances It is said that the fixation of this percentage at 25 per centum is more (1) 163 or less arbitrary.
In any case it means that where a landholder had been successful enough previously to practice rack renting as an art and to increase the rents of his tenants unconscionably, he would get protection because in such a case it was likely that the reduction would be drastic and may even result in the reduced net income being less than 25 per centum of the previous net income.
On the other hand in the case of a landholder who was a humane person and did not increase his rents unconscionably, the reduction of 'rents on the basis of the same rate which might be used in the case of the former landholder who was a rack renter may not be hit because in his case the reduction may not be below 25 per centum.
So it is urged that if the reasonableness is to depend upon by how much the previous net income is reduced after the reduction, it will always work in favour of a landholder who was a rack renter even though the basis of reduction may be on the same rates in the case of a rack renting landholder and in the case of a humane landholder.
Therefore, it is urged that if the reduction is reasonable in the case of a humane landholder because it is brought into line with the prevailing rates of rent in the neighbouring areas under the ryotwari settlement, there is no reason why such reduction should not continue to be reasonable in the case of the other landholder.
The fact that in one case the reduction may not be below 25 per centum while in the other case it may go below 25 per centum will make no difference to the reasonab leness of the reduction, for in either case the basis of the reduction is the same.
We are of opinion that there is force in this argument and it must be accepted.
What we have to see is whether the Act when it provides for reduction of rent proceeds on a reasonable basis i.e. whether the reduction of rent to the level of the prevailing rent for the same class of land in the neighbouring areas where ryotwari settlement prevails is reasonable.
This in our 164 opinion is a reasonable basis on which the rent in estates covered by the Madras Estates Land Act can be reduced.
Once this basis is accepted 'as reasonable, we fail to see how the ratio between what the landholder was getting before the reduction and what he gets after the ' redaction will ' make what is per se reasonable into an unreasonable restriction.
Theoretically.
it may be possible to say that the reduction may be so much that nothing may be left to the landholder.
This is what the respondent tried to make out in his writ petition, for his case therein was that the rents were so far reduced in his case that instead of getting an income of Rs. 3,875/ he would be getting no income at all and would be actually suffering a net loss of Rs. 655/ by his holding the estate after reduction of rents. ' This of course has been found by the High Court to be incorrect and in actual fact the landholder is left with a net income of Rs. 457/ and odd after the reduction in rent.
Therefore.
except for the theoretical possibility where the landholder may be left with nothing on reduction of rents, it cannot be said from the mere fact that in some cases the ratio of net income falls after reduction of rent as compared to the net income before reduction below 25 per centum that the restrictions imposed by the Act are unreasonable.
, Actually 'we feel that there cannot possible be any case where after the reduction there will be nothing left to the landholder.
We cannot therefore agree with the High Court that simply because in a particular case the net income after reduction falls below 25 per centum of the net income before reduction the notification which results in such a position, is an unreasonable restriction on the right of the land holder to hold his estate.
As we have said already, the ratio by which the net income will fall after reduction will depend upon whether the landholder whose rents are being reduced was a rack renter or humane person; in the case of a rack renter the 165 fall may be heavier while in the case of a humane person the fall may be less.
But if the basis on which the, reduction is made is the same in both cases and is reasonable, we see no reason for holding that a notification which may in a given case result in a fall of the net income which is even below 25 per centum of the previous net income would necessarily be bad as an unreasonable restriction on the right of the landholder to hold his estate.
It is important in this connection to remember that the rent allowed to the respondent compares favorably with the highest rent payable by the ryotwari tenants in the locality.
Therefore, the basis on which rents are being reduced under the Act being good and reasonable the result of such reduction would not make the,notification in a particular case bad except where that theoretical case is reached where there is no income left to the landholder after reduction, which in our opinion is impossible.
We therefore allow the appeal and setting aside the order of the High Court dismiss the writ petition with costs throughout.
Appeal allowed.

summary:
The Respondent, the sole inamdar of village Chinnaven katapuram in the Parlakimidi Zamindari in the District of srikakulam filed a Writ Petition before the High Court chal lenging lnter alia the notification issued under section 3 (4) of the Madras Estates Land (Reduction of Rent) Act by which the rents in respect of ryoti lands included in his Estate were reduced.
He also challenged the provisions of the Act.
The High Court accepted the challenge to the notification on the ground that the net income from rents was reduced to less than 25% of the original income and that the reduction was so substantial as to amount to an unreasonable restriction on the respondent 's right to hold property under article 19 (1) (f ) of the Constitution.
On appeal by a certificate.
Held, that the provisions of the Act were valid as they laid down reasonable restrictions in the interest of ameliorating the conditions of tenants of ryoti land in 'Estates ' who were at a disadvantage compared to tenants of ryotwari lands.
Held, further, that it is only in a theoretical case where a land holder would be virtually ' deprived of his income by the reduction of rents that it can be said that the reduction was unreasonable.
By the reduction the income of the Respondent was brought on a par with that of the highest prevailing rents in ryotwari lands and so it cannot be said that the reduction of rents made by the notification was violative of the land holders ' rights under article 19 (f ).
The method of comparing the rents prior to reduction with the rents after reduction for the purpose of deciding the unreasonableness of the restriction was not sound as not humane landholders but those who were charging unconscionable rents would benefit thereby.


judgement:
Appeal Nos. 252 and 253 of 1958.
Appeals by Certificate and special leave from the judgment and order dated August 5, 1955, of the former Andhra High Court in Writ Appeal No. 13 of 1955.
AND VICE VERSA D. Narsaraju, Advocate General for the State of Andhra Pradesh, D. Parsanna Kumari, P. V. R. Tatachari and P. D. Menon., for the, appellant (In C. A. No. 252 of 58) and Respondent No, 1 (In C. A. NQ 253 of 58).
175 P. Ram Reddy, for the the appellants (In C. A. No. 253 of 58) and Respondent No. 1 to 3 (In C. A. No. 252 of 58).
A. V. Vishwanatha Sastri and K. R. Choudhri, for the respondent No. 2 (In C. A. No. 253 of 58).
April 2.
WANCHOO, J.
These are two connected appeals arising out of the same judgment of the, Andhra Pradesh High Court.
The main appeal No. 252 is by the State of Andhra Pradesh while the other appeal No. 253 is by Duvvura Balarami Reddy and others.
We shall dispose of them by this common judgment and will hereinafter refer to the State of Andhra Pradesh as the appellant and Duvvuru Balarami Reddy and others at the respondents.
The brief facts necessary for present are these.
The respondents had filed a writ petition for the issue of a writ in the nature of mandamus or any other ap propriate writ directing the appellant to give permission to the respondents to carry on mica mining operations in survey No.49/1 in the village of Ananthamadugu in Rapur Taluk of Nellore district subject to the respondents executing as agreement in the manner provided under the Mineral Conces sion Rules, 1949 (hereinafter referred to as the Rules) and conforming to the conditions mentioned therein.
The case of the respondents was that they had obtained leases for mica mining purposes from various co owners in the shrotriem village of Ananthamadugu on March 24, 1952.
Thereafter on May 27, 1953, this village was notified under the Madras Estates (Abolition and Conversion into Ryotwari) Act, No. XXVI of 1948, (hereinafter referred to as the Act) and the interest of the shrotriem owners was taken over by the appellant.
The leases granted to the respondents were for a period of one year and one of the terms provided that the lessors were bound to extend and renew the period 176 of lease for such period as may be desired by the lessess subject to the Rules.
After the estate was taken over, the question arose whether the leases were enforceable against the Government under s.20 "1 of the Act.
In November 1953, the Manager of Estates, appointed on behalf of the Government, held that the leases were enforceable against the Government.
This order was confirmed by the Collector of Nellore.
Thereupon there was a revision petition by one of the co owners of the shrotriem who was not a party to the leases before the Board of Revenue.
The respondents also applied to the Government for permission to work the mines.
The Government however did not grant such permission.
The respondents contended that the Government had no right to withheld permission to work the mines.
Therefore, the writ petition was filed asking for the issue of a writ in the nature of mandamus or any other appropriate writ directing the appellant to give permission to the respondents to carry on mica mining in accordance with the leases.
The petition was opposed on behalf of the appellant and the main contention on its behalf was that the village in question being a shrotriem inam village there was no presumption that the inam grant included the grant of sub soil rights also to the shrotriemdars.
Therefore, the respondents could not claim any rights higher than these of their lessors.
In effect, the appellant had contended that the lessors had no rights to the minerals and therefore the leases even if not void within the meaning of s.20 of the Act would not confer any rights on the respondents to claim as a matter of right the grant of permission to work the mines from the appellant and that it was entirely within the discretion of the State whether to grant a mining lease or not in accordance with the Rules.
It was also stated in that the revision filed before the Board of Revenue had been stayed as the Points 177 raised before the Board were covered by the questions involved in the writ petition.
On these pleadings the main question that arose for decision was whether the shrotriemdars had any rights in the minerals at all and were entitled to grant leases thereof If the shrotriemdars had no right in the minerals the grant of lease by them would be of no value and would not entitle the respondents to claim a mining lease under the Rules from the appellant as a matter of right.
The learned Single Judge who heard the writ petition came to the conclusion that there was nothing to show that the inam grant in the present case covered the right to minerals.
In consequence, it was held that the respondents did not get any rights under the said leases to the minerals.
The learned Judge then considered the other points raised in the petition with which we are however not concerned and eventually dismissed it.
The respondents went in appeal to a Division Bench of the High Court, and the appeal court seems to have held on a review of the various,standing orders of the Board of Revenue of the composite State of Madras that the State was only entitled to impose a royalty on minerals taken out by the shrotriem inamdar.
It was pointed out that this seemed to be in accordance with common sense as the "grantee is entitled to the surface rights and the grantor to the sub soil rights and as the latter rights can only be exercised by entering upon the surface.
it is only natural and just that they should share what is produced by working the mine, since one cannot enter upon the land, as he has no right to do so and the other cannot work the mine, as he has no right to the land".
This would seem to suggest that the appeal court held that the sub soil right,,; belonged to the State and not to the inamdars; but because of the difficulty that arose on account of 178 the surface rights being in the inamdar and sub soil rights being in the State, it apparently head that the inamdar and the Government should share what is produced by working the mine.
Finally, however, the appeal court dismissed the appeal on the ground that the period of one year for which the leases had been granted had expired and the period of renewal which the respondents could get under the Rules also had expired before the decision of the appeal court.
It relied in this connection on the decision of this Court in K. N. Guruswamy vs The State of Mysore (1) : but as the respondents had failed on account of the expiry of time they were allowed their costs.
This was followed by an application by the State for a certificate which was granted, and that is how the State 's appeal has come up before us.
As for the appeal by special leave by the respondents, they contend that the decision being in their favour on the merits, the High Court should have ordered the State to grant them a lease even though the period fixed in the original leases and the period of renewal permissible under the Rules had expired.
The main question therefore that fails for decision in these appeals is whether shrotriemdars can be said to have rights in the minerals.
This matter has been the subject of consideration by the Madras High Court on a number of occasions and eventually the controversy was set at rest by the decision of the Judicial Committee in Secretary of State for India in Council vs Srinivasa Chariar (2) That case came on appeal to the Judicial Committee from the decision of the Madras High Court in the Secretary of State for India in Council vs,.
Sreenivasa Chariar (3).
The controversy before the Madras High Court was with respect to a shrotriem inam which was granted by the Nawab of Carnatic (1) ; (2) (1920) L.R. 48 I. A. 56.
(3) Mad.
179 in 1750 and had been enfranchised by the, British Government in 1862.
The inamdar started quarrying stones in the land granted to him and '.
the Government claimed that it had a right to levy royalty or seigniorage fee on stones quarried by the inamdar.
The inamdar contended on the other hand that an enfranchised inam was exactly.
in the same position as a zamindari estate under the permanent settlement and that he was entitled to the entire sub soil rights and the Government was not entitled to levy royalty or seigniorage fee on stones quarried by him.
The High Court held that under the terms of the grant, the grantor conveyed all that the grantor had in the.
soil including sub soil rights and therefore it was not open to the Government to levy any royalty or seigniorage fee on stones quarried by the inamdar.
In effect, the decision of the High Court negatived the claim of the Government to sub soil rights, for the Government could only levy royalty or seigniorage fee if it bad sub soil rights and the inamdar had no such rights.
This decision was taken in appeal to the Judicial Committee as already indicated above, and the controversy between the parties, was that the inamdar claimed a decree establishing his full rights to the said village to the rocks and hills within its boundaries.
The State on the other hand while admitting that there had been an inam grant of the village to the inamdar contended that there was no conveyance of the rights to minerals in the village.
The Judicial Committee held that the grant of a village in inam might be no more than an assignment of revenue, and even where there was included a grant of land, what interest in the land pawed must depend on the language of the instrument and the circumstances of each case.
The Judicial 'Committee also considered the standing orders of the Board of Revenue of 1890 and 1907 ,which have been referred to by the appeal court in 180 the judgment under appeal.
This decision thus establishes that the mere fact that a ' person is the holde 'r of an inam grant would not by itself be enough to establish that the inam grant included the grant of sub soil rights in addition to the surface rights and that the grant of sub soil rights would depend upon the language used in the grant.
If there are no words in the grant from which the grant of subsoil rights can be properly inferred the inam grant, would only convey the surface rights to the grantee, and the inam grant could not by itself be equated to a complete transfer for value of all that was in the grantor.
In particular, the Judicial Committee stressed the use of the words "the produce of the seasons each year" used in the grant to show that, only the surface rights were granted in that case.
It is not disputed that eversince the decision of the Judicial Committee in Srinivasa Chariar 's case(1) that has been the law with respect to sub soil rights of inamdars as distinct from zamindars under.
the permanent settlement.
The Boards standing orders of 1890 and 1907 to which the appeal court has referred in its judgment were also considered by the Judicial Committee and it is now too late in the day to use them to find out the rights of the inam dars and the Government in the minerals under the soil.
As the decision of ' the Judicial Committee, shows, the standing orders of the Board of Revenue themselves show how the views of the Government changed from time to time on this question.
, The older view seems to have been that the sub soil rights were in the inamdars but from 1907 at any rate the Government has taken the view that. sub soil rights are in the Government unless there: is anything in the grant to the contrary.
It is this later view which was upheld by the Judicial, Committee in Srinivasa Chariar 's case(1).and this view has ever since prevailed as to the rights of the Government in the minerals under the soil in the case of (1) (1920) L.R.48 I.A. 56.
181 inams.
We are unable to see bow this decision as to the rights of the Government to the minerals under the soil can be distinguished on the ground that the decision dealt only with the question of royalty.
It is obvious that the Government could charge royalty only if it had the right to the minerals under the soil and not the inamdars.
What therefore we have to see is whether on the terms of the grant in this case the shrotriemdars can be said to have been granted the sub soil rights also.
So far as, this matter is concerned, here does not seem to have been a serious controversy in the High Court and it does not appear that the respondents contended that under the term$ of the grant to the shrotriemdars the latter were entitled to sub soil rights.
We have already referred to that part of the judgment of the appeal court which suggests that ' even the appeal court was of the view that the subsoil rights were in the Government in this case and the surface rights were in the shrotriemdars.
The orioinal grant is not available and all that we have is the inam fair register of 1861 and all that is stated in that register is that the grant is for the personal ad vantage of the holder.
There is nothing therefore in the inam fair register to show that the grant included the grant of sub soil rights.
It is however urged on behalf of the respondents that the grant included Poramboke, and from the fact that Poramboke was also included it should be inferred that mere surface rights were not the subject matter of the grant.
Reliance in this connection has been placed on the decision of the Judicial Committee in Secretary of State vs Krishna Rao.
The dispute in that case related to levy of water cess under the Madras Irrigation Cess Act, .(No.
7 of 1865).
The Judicial Committee pointed out that the inam grant in that case included not only dry, wet. and garden land but also poramboke (1) (1945) L.R. 721.A. 211 182 i.e. unculturable land.
This was held to indicate that full proprietary rights were granted and therefore the Government could not charge any water cess.
It is urged for the respondents that this case shows that where poramboke is also granted, the grantee gets all the rights including the sub soil rights in full proprietorship.
It should however be remembered.
that the dispute in that case was whether the inamdar was entitled to free irrigation from water sources lying in the shrotiem village by virtue of the grant or whether the grantor could levy a cess under the Madras Irrigation Cess Act.
There was no dispute as to the sub soil rights 'in that case, the dispute being confined to surface rights relating to water.
The Government contended in that case that the grant to .the inamdar was only of the melvaram or the right of the revenue from the lands.
while the respondent 's contention was that the grant I carried not only the meraram but also the proprietary interest in the land itself and therefore the Government had no right to levy the irrigation cess.
It was in that connection that the Judicial Committee held that the grant of poramboke i. e. unculturable land, was one of the factors that indicated that it was not a mere grant of melvaram but full proprietary right.
It is remarkable however that though the Judicial Committee came to the. conclusion in that case that full proprietary right had been granted, it referred to the earlier decision in Srinivasa Chariar 's case during the course of the .judgment.
This later decision therefore in our opinion cannot be read in such a way as to lay down that wherever poramboke is included in the grant, a presumption must be drawn that the inam grant included sub soil rights also all that may be possible to infer by the inclusion of poramboke on the basis of this decision is that all the surface rights were granted and not merely the melvaram as 183 was contended in that case.
The fact therefore that in the inam fair register in this case the grant includes poramboke would not by itself ' establish that sub soil rights were also included in the grant.
So far as sub soil rights are concerned, they can only pass to the grantee if they are conferred as such by the grant or if it can be inferred from the grant that sub soil rights were also included therein.
We have already remarked that the original grant in this case is not available and we have only the inam fair register to go ' by.
There can be no doubt therefore on the facts of this case that the learned Single Judge was right in holding that the grant of sub soil rights to shrotriemdars is not established.
The appeal court also does not appear to differ from this view of the learned Single Judge.
Once the conclusion is reached that sub soil rights were not granted to the shrotriemdars it seems to us that the inference is plain ' that it was not open to the shrotriemdars to grant any lease of minerals lying under the soil to any one.
Therefore, the leases granted by the shrotriemdars to the respondents in this case would be of no legal effect in conveying any right to them in the minerals under the soil.
In the circumstances the respondents cannot put forward the leases in their favour to claim a mining leases under the Rules.
With respect, we have not been able to understand how the difficulty which may arise in practice, on account of the sub soil rights being in the Government and the surface rights being in the shrotriemdars, in the working of the mines would make the shrotriemdars shares in the sub soil rights and therefore entitled to grant a lease of the sub soil rights.
Whatever may have been the practice in the past and howsoever the Government may have been getting over the practical difficulty in the past would not confer any right to the minerals upon the shrotriemdar so as to enable 184 him to grant a mining lease to; any one.
It follows therefore that the mining,, leases granted in this case were granted by persons who had no right to the minerals and therefore confer no rights on the respondents to claim at; of right from the Government that they should be granted a mining lease under the Rules.
In view of the above decision appeal No. 252 must be allowed and appeal No. 253 must fail.
We therefore allow appeal No. 252 and setting aside the order of the appeal court dismiss the writ petition with costs to the State throughout.
Appeal No. 253 is hereby dismissed but in the circumstances parties will bear their own costs.
C. A. No. 252 of 1958 allowed.
C. A No. 253 if 1958 dismissed.

dataset_name: IN-Abs

summary:
The, respondents has obtained leases for mining mica from the owners of a certain shrotriem village for one year with a stipulation that the lessors were bound to renew the leases for such periods as may be desired by the lessees.
Shortly, there.
after, the village waseanoified and the estate of the owners was resumed by the appellant.
The respondent contended that 174 the appellant was bound to renew the leases.
The appellant contended that the shrotriemdars had no right in the minerals, that they could not have granted any leases for mining the minerals and that as such no question of renewing the leases arose.
Held, that shrotriemadras had no rights in the minerals and the leases granted by them to the respondent had no legal effect, The mere fact that a person was the holder of an inam grant was not by itself enough to establish that the inam grant included the grant of sub soil rights in addition to surface rights.
The grant of sub soil rights depended upon the language used in the grant ; if there were no words in the grant from which grant of sub soil rights could be properly inferred it would only convey surface rights to the grantee.
The original grant in the present case was not available and the inam fair register did not show that the grant included the grant of sub soil rights.
No inference could he drawn of the grant of sub soil rights from the fact that the inam grant included poramboke (unculturable land) also.
The difficulty that may arise in the working of the mines on account of the mines vesting in the state and the surface rights vesting in the shrotriemdars could not make the shrotriemdars co sharers in the sub soil rights so as to entitle them to grant leases of the subsoil rights.
Secretary of State for India in Council vs Srinivasa Chariar, (1920) L. R. 48 1.
A. 56, applied.
Secretary of State vs Krishna Rao, (1945) L. R. 72 1.
A. 21 1, distinguished.


judgement:
ION: Criminal Appeal No. 120 of 1961.
Appeal by special leave from the judgment and order dated March 17, 1961 of the Punjab High Court in Criminal Writ No. 2 of 1961.
WITH Petition No. 147 of 1961.
Petition under article 32 of the Constitution of India for enforcement of Fundamental Rights.
The appellant/petitioner in person.
H. section Doabia, Additional Advocate General, Punjab, Gopal Singh and P. D. Menon.
for respondent (in the appeal and the petition.) 1961.
November 2. 'The Judgment of Sinha, C. J., Subba Rao, Shah and Mudholkar, JJ, was delivered by Subba Rao, J. Dayal, J. delivered a separate Judgment.
SUBBA RAO, J.
Both these matters are connected and raise the same questions, and they may be disposed of together.
Ranbir Singh Sehgal, the petitioner in the writ petition, is now a prisoner in the Central Jail Ambala, in the State of Punjab.
He was prosecuted for committing offence in different places.
On June 13, 1961, he was convicted by the Additional District Magistrate, Ambala, under section 5 of the Indian Explosive Substances Act and sentenced to 298 5 years rigorous imprisonment and to pay a fine of Rs. 2,000/ .
The petitioner has preferred an appeal against the said conviction and sentence, and the said appeal is now pending the High Court of Punjab.
On January 30, 1961, the Additional Sessions Judge (II), Ambala, convicted the petitioner under sections 120 B and 399 of the Indian Penal Code and sentenced him to 7 years rigorous imprisonment and a fine of Rs. 2,000/ under the former section, d to 5 years rigorous imprisonment and a fine of Rs. 2,000/ under the latter section.
The petitioner preferred an appeal against this conviction and sentence to the High Court of Punjab and the same is now pending there.
The other eases are not disposed of and they are still pending in various courts.
The petitioner was arrested by the Ambala, police on September 11, 1958, and was detained in police custody for a period of about 8 months, and on May 7, 1959, he was transferred to judicial custody at Ambala.
On June 13,1960, he was convicted under the Indian Arms Act, and from that date he is in the Central Jail, Ambala,, as a convicted prisoner.
On December 15, 1960, the Governor of Punjab ordered that the petitioner should be treated as a 'B ' class prisoner.
On February 9, 1961, he filed a petition under article "26 of the Constitution in the High Court of Punjab at Chandigarh, questioning inter alia his confinement in that prison on the ground that para.
575 of the Punjab Jail Manual where under he was confined to a separate cell in the prison, offended article 14 of the Constitution, and that in fact discriminatory treatment was meted out to him not for the maintenance of discipline but for extraneous reasons.
That petition was dismissed by the said High Court on March 17, 1961, and Criminal Appeal No. 120 of 1961 was filed against the said order by special leave granted by this Court.
That apart he also filed the present writ petition (Writ Petition No. 147 of 1961) in this Court under article 32 of the Constitution covering the same ground.
The prisoner 299 argued his own case.
He raised before us two points, namely, (1) para.
575 of the Punjab Jail Manual offends article 14 of the Constitution in as much as it confers arbitrary power on the Superintendent of Jail to deal with a prisoner under the colour of the said provision in a brutal way circumventing other stringent provisions of the Prisons Act and other paragraphs of the Punjab Jail Manual conceived in the interest and fair treatment of prisoners, (2) the Superintendent of Jail, for extraneous reasons on the pretext of disciplinary action, gave him solitary confinement in a cell since the date he was transferred to that Jail, and thus acted with mala fide.
that apart, he discriminated him in the matter of treatment from other prisoners and even from the co accused, who were convicted along with him, and thus offended article 14 of the Constitution.
The first question falls to be decided on the relevant provisions of the Indian Penal Code, the Prisons Act, and the Punjab Jail Manual.
There are three types of punishment, namely, (i) solitary confinement,(ii) cellular confinement, and (iii) separate confinement.
Solitary Confinement means such confinement with or without labour as entirely secludes the prisoner both from sight of, and communication with, other prisoners.
The punishment of solitary confinement can be imposed by a Court only, and, in view of its dangerous potentialities stringent conditions are imposed thereon.
No person can be sentenced to undergo solitary confinement for more than three months.
There is a limit prescribed on the punishment of solitary confinement that can be imposed on a prisoner: it shall not exceed (a) one month, if the term of imprisonment does not exceed six months, (b) two months, if the term of imprisonment exceeds six months, but does not exceed one year, and (c) three months if the term exceeds one year: (vide section 73 of the Indian Penal Code).
Section 74 of the Indian Penal Code says, 300 In executing a sentence of solitary confinement, such confinement hall in no case exceed fourteen days at a time with intervals between the periods of solitary confinement of not less duration than such periods, and when the imprisonment awarded shall exceed three months, the solitary confinement shall not exceed seven days in any one month of the whole imprisonment awarded, with intervals between the periods of solitary confinement of not less duration than such periods.
" Section 29 of the Prisons Act reads, "No cell shall be used for solitary confinement unless it is furnished with the means of enabling the prisoner to communicate at any time with an officer of the prison, and every prisoner so confined in a cell for more than twenty four hour, whether as a punishment or otherwise, shall be visited at least once a day by the Medical officer or Medical Subordinate." Cellular confinement is a punishment which can be imposed on a prisoner by a Superintendent of Jail.
A Superintendent of Jail can punish in a suitable case a prisoner by imposing on him cellular confinement for a period not exceeding fourteen days, provided that after each period of cellular confinement an interval of not less than such period must elapse before the prisoner is again sentenced to cellular or solitary confinement.
Cellular confinement in defined to mean such confinement with or without labour as entirely secludes a prisoner from communication with, but not from sight of, other prisoners.
Separate confinement is defined to mean such confinement with or without labour as secludes a prisoner from communication with, but not from sight of, other prisoners, and allows him not less than one hour 's exercise per diem and to have his meals in association with one or more 301 other prisoners.
Separate confinement for a period not exceeding three months can be imposed on prisoner in a suitable case by the Superintendent of Jail.
(Vide section 46(8) of the Prisons Act).
Section 47 of the Prisons Act prohibits the combination of cellular confinement with separate confinement so as to prolong, the total period of seclusion to which a prisoner shall be liable.
Solitary confinement can he given only by a court and the other two by a Superintendent of Jail for jail offences.
The provisions conceived in the interest of the physical, moral and mental health of prisoners impose stringent conditions in carrying out those sentences in order to prevent their abuse.
But in the interest of maintaining discipline among the inmates of jail, the Prisons Act and the Jail Manual prescribe rules for a separation of prisoners.
The separation of prisoners depends upon the nature of the prisoner, the class to which he belongs and the availability of adequate number of cells.
Section 27 of the Prisons Act provides that, (1) in a prison containing female as well as male prisoners, the females shall be imprisoned in separate buildings, or separate parts of the same building, in such manner as to prevent their seeing, or conversing or holding any intercourse with the male prisoners (2) in a prison where male prisoners under the age of twenty one are confined, means shall be provide for separating them altogether from the other prisoners and for separating those of them who have arrived the age of puberty from those who have not (3) unconvicted criminal prisoners shall be kept apart from convicted Criminal prisoners; and (4) civil prisoners shall be kept apart from criminal prisoners.
Section of the said Act says, "Subject to the requirements of the last foregoing section, convicted criminal prisoners may be confined either in association or 302 individuals in cell or partly in one way and partly in the other".
Presumably in exercise of the power conferred on the State Government by section 59 of the Prisons Act, certain rules were framed for the separation of prisoners and they are contained in the Jail Manual.
Under para.
571 of the Jail Manual, 'shall convicts shall, so far as the requirements of labour and the cell accommodation of the Jail will allow, be kept separate both by day and by night.
" Paragraph 572 deals with the occupation of vacant cells, and para.
573 says that " 'convicts of the habitual class shall be subjected to the system of separation prescribed in the preceding rules, in rotation.
" Paragraph 574 provides.
If, at any time, there are more cells in any jail than suffice for the separation of all convicts of the habitual class, prisoners of the casual class shall be confined in cells, both by day and night, in rotation.
" Then comes the impugned provision, namely, para.
576, which reads: "A convict who would ordinarily came under the operation of any of the preceding rules relating to the separation of prisoners, but cannot be confined in a cell by day, by reason that he is required for some jail service, shall be confined in a cell by night.
" There rules, along with the provisions of the Prisons Act, form an integrated scheme conceived for the maintenance of discipline of prisoners, and the preferential treatment in the allotment of cells is based upon sex, age, nature of the crime committed and the nature of the prisoners, and also the availability of cells.
The question is whether para.
575 of the Jail Manual offends Act.
14 of the Constitution.
The said provision is only in a group of rules providing for the separation of prisoners and it only says that if a prisoner to whom any of the prison rules 303 applies cannot be confined to a cell by day shall be confined in a cell by night.
It pre supposes that the prisoner concerned belongs to the category to whom a separate cell is allotted and, by reason of his being required for jail service, cannot be confined to the cell by day: in such a case it says that he shall be confined to the cell by night.
It is only a rule providing for a contingency when a prisoner who should be so confined in a cell both by day and night cannot be confined by day in such a cell.
But the objection may be taken to mean that the other rules, along with this rule enable a Superintendent of Jail to put a prisoner in a cell offends article 14 of the Constitution.
It is settled law that article 14 of the Constitution permits classification, and the said classification must bear just and reasonable relation to the object of the legislation.
The object of the said provision is to maintain discipline among the inmates of jail.
The classification is made on the basis of sex and the nature of the prisoners and also on the availability of cells.
The classification has certainly a reasonable relation to the object sought to be achieved by the legislation nor can the power conferred on the Superintendent to separate prisoners be said to be arbitrary.
The object of the conferment of the said power is very limited, and the provisions clearly lay down the conditions for separation.
The power to separate is entrusted to the highest officer in the jail premises, who may ordinarily be expected to not reasonably, objectively and without bias.
In these circumstances, we must hold that para.
575 of the Jail Manual in it setting does not offend the provisions of article 14 of the constitution.
The next question is whether in purported exercise of the said power the Superintendent in the present case acted with mala fide and meted out discriminatory treatment to the petitioner and thus offended article 14 of the constitution the 304 affidavit filed in the Writ Petition, the petitioner made certain allegations against the Superintendent in respect of his treatment in jail.
The said allegations may be summarized thus: The petitioner was transferred to the judicial custody at the Central Jail Ambala, on May 7, 1959, after protracted police custody of over eight months.
On the very day of his arrival in the Jail, the petitioner was looked up in solitary confinement in a cell in the condemned prisoners block and lock up period of 24 hours inside the cell was clamped." Though several representations were made by the relatives of the petitioner to the higher authorities, no redress was given to him.
He was sought to be kept in the cell for 13 months till June 13, 1 when he was convicted in one of the cases filed against him.
On June 14, 1960, the Superintendent of the Jail again ordered the petitioner to be looked up in complete solitary confinement under para.
575 of the Punjab Jail Manual, and again a confinement of 24 hours inside the cell was "clamped".
On December 15, 1960, the Governor of Punjab ordered that the petitioner should be treated as a 'B ' class prisoner, and even thereafter he was not transferred to the general ward of the prison where others ' class prisoners were kept confined, but he was kept in the same condemned prisoners wards Though the look up period of 24 hours inside the cell was considerably reduced the ban imposed on his association with other prisoners had not been relaxed.
The petitioner was not allowed even to meet his co accused who were in the general ward of the prison.
While the other prisoners in the jail including the petitioner 's co accused were given numerous facilities i.e. of association work and recreation he was completely segregated in a cell without any such facilities.
The jail authorities adopted this method of torture for ulterior purposes, 305 The Superintendent of the Jail filed a counter affidavit.
His answer to the grave allegations may be stated thus: on the very day of his arrival in the jail the petitioner behaved rudely and impertinently towards the jail staff and in a defiant way tried to undermine jail discipline.
he was not kept in solitary cell for ulterior motives.
He committed 12 jail offences and he was punished for them.
After he was convicted he was put in a separate cell and that he was allowed one hour in the morning and one hour in the evening for exercise and also to have his bath outside the courtyard.
After he was classified as a 'B ' class prisoner, he was given amenities to which a 'B ' class prisoner was entitled under the rules, but in the interest of jail discipline he was segregated from other prisoners.
The cell in which the petitioner was kept was one of the cells in block of 32 cells out of which only were allocated for condemned prisoners and the rest were utilized for separate confinement for the segregation of hardened and troublesome convicted criminal prisoners.
The petitioner was confined in the cell only for the night and he could move about in the open compound of the cell throughout the day.
The affidavit and the counter affidavit disclose the following admitted facts: The cell in which the petitioner was and is confined is one of the cell in the block of 32 cells out of which 8 cells are used for condemned prisoners.
The cell has a small separate enclosure of its own.
From the date the petitioner entered the prison, that is, on May. 7, 1959, till he was convicted, that is, on June 13, 1960, when he was an under trial prisoner, he was separately confined to a cell.
though the superintendent vaguely says that the petitioner was not looked up in a solitary cell, he practically admits that the petitioner was given separate confinement in a cell as punishment for jail offences committed by him.
Though he 306 denies that the petitioner was kept in a cell for 24 thee hours, he does not say what facilities were provided for him to move about or mix with other prisoners.
The statement of offences committed by the J. petitioner and the punishments inflicted on him filed by the Superintendent does not contain any details and is thus vague.
Section 12 of the Prisons Act enjoins on a Superintendent to maintain a punishment book, and section 51 thereof requires him to enter the details therein.
But the statement before us does not strictly comply with that section and it is represented in court that no other register is maintained in the jail.
The statement, vague as it is, shows that even on the first day of imprisonment, the petitioner was kept in a separate cell and the offence alleged to have been committed by him is that he was rude and impertinent.
The subsequent entries show that the petitioner attempted to break articles and even struck his head against wall or door.
These acts of the petitioner appear to us to be more due to the effect of the inhuman and discriminatory treatment given to him even when he was an under trial prisoner rather than a conscious attempt on his part to commit any jail offences.
Be that as it may, we are not concerned at this stage whether the petitioner had committed those offences, for those were committed at a time when he was an under trial prisoner with which we are not now directly concerned.
The facts remain that even as an under trial prisoner from the date he entered the premises of the jail, he was segregated from other prisoners and kept in a separate cell.
Now coming to the second period, that is, the period commencing from the date he was convicted till he was classified as a 'B ' class prisoner, that is from June 14 1960 to December 15, 1960, the petitioner alleges that he was kept in solitary confinement as before throughout 24 hours of the day.
In the counter affidavit of the Superintendent 307 it is not denied that the petitioner was kept in a separate cell, but it is stated therein that he was given one hour in the morning and one hour in the evening for exercise and also he was allowed to have his bath outside the courtyard of the cell.
The Superintendent does not state that he allowed the petitioner to communicate with others or to talk to other prisoners.
It is not stated whether he was allowed for exercise to go out of the separate enclosure of the cell or whether he was allowed to mix up with other prisoners or to talk to them.
During this period, the petitioner did not commit any jail offences and, therefore, his separate confinement in a cell could not be a punishment for an offence, but only for the maintenance of discipline in the jail and for convenience of accommodation.
There is nothing on the record to suggest that he was guilty of any indiscipline during this period.
If so, his confinement in a separate cell for a period of six months without allowing`him to communicate with others is a punishment of either cellular confinement, separate confinement or solitary confinement.
The restrictions imposed on the prisoner on the pretext of separate allotment of a cell ignored even the limitations on the said confinements prescribed by section 73 of the Indian Penal Code or section 46 of the Prisons Act.
The confinement of the prisoner in a separate cell in the manner it was done was certainly illegal.
Coming to the third period after he was classified as a 'B ' class prisoner, the petitioner says that he was kept in the same condemned prisoners ' book with the exception that the look up period of 24 hours inside the cell was considerably reduced, but the ban imposed on his association with other prisoners was not relaxed.
The Superintendent does not say that the petitioner was allowed to communicate or to speak with other prisoners.
He also admits that the petitioner was continued to the 308 cell only in the night and that he can move about within the open compound of the cell throughout the days to put it in other words, the Superintendent admit that the petitioner is confined in a cell J. with a small separate enclosure and that the prisoner can only move in that enclosure in the morning.
This kind of confinement is either a solitary confinement or cellular confinement, for it secludes the prisoner from communicating with or from the sight of other prisoners.
If it is not a solitary confinement, it would certainly be a cellular confinement.
Even in a separate confinement as a punishment the prisoner should be allowed to have one hour 's exercise per diem and to have his meals in association with one or more prisoners.
The Superintendent therefore, acted illegally in confining the prisoner in the manner he did, and he is not entitled to do so under the rules prescribed for separation of prisoners.
It may also be mentioned that during this period, there is no allegation that the petitioner 's conduct was otherwise bad.
It is said that the confinement is neither solitary, cellular or separate, for he is allowed to go to courts.
The fact that a prisoner is to be sent to a court on summons has no bearing on the question whether the confinement is legal or not.
On the facts disclosed in the case, we have no doubt that, for one reason or other, which is not clear from the record, the petitioner was discriminated from other prisoners and, under the colour of the rules for separation, was illegally confined in a manner not authorized by law.
Before closing we would like to make some general remarks.
The modern development of criminology has revolutionized the system of treatment of convicted prisoners.
The old brutal treatment has given place to more humane one.
The concept of vengeance by society and of the deterence is fast disappearing and is being replaced by the concept of correction and rehabilitation.
309 Though our jail administration is moving with times, it is not keeping pace with advanced countries.
A statute may reflect the modern trend and may contain salutary provisions for fair treatment of prisoners; but in practice much depends upon the Superintendent, who is expected to implement them in the spirit in which they are conceived.
A superintendent of a jail may be a good disciplinarian, but it is not enough: he should also be a humanitarian possessing conscience and having an awareness that to his care is entrusted an abnormal class of society deserving more a sympathetic approach and sincere attempt at rehabilitation than that of vindictiveness.
In this case, the Superintendent, as we have already stated, not only did not carry out the spirit of the rules but also broke the letter of the law and illegally placed the petitioner practically in solitary confinement from May 7, 1959 up to date.
In the result we hold that the confinement of the petitioner in a separate cell in the manner it is being done in this case is illegal and we direct the respondent to confine the petitioner in the prison in strict compliance with the provisions of the Prisons Act and the rule made thereunder.
It is for the Government to consider, in the circumstances of this case, whether it is a fit case for transferring the petitioner to some other jail.
Writ Petition No. 147 of 1961 is allowed to the said extent, and there will be a similar order in criminal Appeal No. 120 of 1961.
RAGHUBAR DAYAL, J.
I have had the advantage of perusing the judgment prepared by my learned brother, Subba Rao J., and agree with him that paragraph 575 of the Punjab Jail Manual does not offend the provisions of the Constitution.
I however do not agree that there had been any illegal confinement of the appellant.
310 The appellant was admitted to the jail as an undertrial prisoner for offences under section 19 of the Indian Arms Act and under section 5 of Indian Explosive Substances Act and the allegation was that he was concerned in a conspiracy with others to muder certain persons and to create disorder and anarchy in India.
He behaved rudely and impertinently on admission into jail and showed a defiant attitude.
In there circumstances, according to the affidavit of the Superintendent of the Jail, the appellant was ordered to be kept in cell under paragraph 569 A of the Jail Manual to maintain jail discipline.
The entry in the punishment register, in this connection, states in the column meant for noting the offences: 'He is very rude and impertinent.
He has defiant attitude and tries to undermine the jail discipline. ' I am of opinion that it was not necessary for the jail authorities to make a more detailed note in the register with respect to the various acts committed or words spoken by the appellant on the occasion.
Section 51 of the Prisons Act provides what is to be recorded in this punishment book and requires to be recorded, among other matters, the prison offence of which the prisoner is guilty.
It does not require a detailed account of the actions of the prisoner which constituted the prison offences.
The description of the offences committed, suffices for the purpose of this register.
The entry is not made for the purpose of adjudication of the offences or for the purposes of the appellate authority, if any.
It is just a record of the conduct of the accused and the action taken.
The Superintendent, in this case, did not inflict any punishment of solitary confinement or separate confinement on the appellant for his conduct.
He simply ordered that the appellant be kept in a cell under paragraph 469 A of the Jail Manual.
There had been eleven other occasions when the appellant committed prison offences.
Those 311 offences and the action taken there are also mentioned in the punishment register and a copy of those entries has been filed in Court.
What I have said in connection with the nature of the entry in connection with the incident on the day of admission, applies equally to the other entries mentioned above.
The Superintendent has denied the allegations made by the appellant that he was kept in a separate cell, not in the interests of the jail discipline, but for ulterior motives or under orders of a vindictive Government.
There is no material on the record to suggest that the Superintendent of the jail was actuated, in passing the order for keeping the appellant in a separate cell, by any consideration other than that of the interests of jail discipline.
Therefore, the mere fact that the appellant was kept in a separate cell from the moment of his admission in jail does not indicate malafides on the part of the jail Superintendent.
The appellant was kept segregated in a separate cell after his conviction as well, in view of paragraph 575 of the Jail Manual.
He was allowed an hour in the morning and an hour in the evening for exercise.
He was allowed to have a bath in the court yard outside the cell.
The fact that the Superintendent did not state in his affidavit that he allowed the petitioner to communicate with others or to talk to other prisoners or that the appellant was allowed to mix up with other prisoners or to converse with them, does not necessarily mean that he disallowed any such thing or that, if he did so, the Superintendent acted against rules of law.
The Superintendent denied that the appellant 's request to meet Hari Das was disallowed.
There is no allegation that he had not been afforded the facilities which are to be provided to a prisoner or to a B class prisoner kept in a cell and therefore there was no occasion for the Superintendent to state about matters not complained of.
312 The mere fact that a person is kept in a separate cell will not make his confinement solitary, cellular or separate, though the difference between it and any of them be not appreciable.
Section 27 of the prisons Act provides for separation of prisoners.
If there happens to be only one prisoner of a particular category, he is necessarily to be kept separate from others.
His being kept alone from other prisoners and his not being allowed to mix with other prisoners will not be called solitary or cellular or separate confinement.
It is just an incident that he happens to be the only prisoner of a particular category and had therefore to be kept separated from all other prisoners in the jail.
Section 28 allows convicted criminal prisoners to be confined either in association or individually in cells or partly in one way and partly in the other.
The discretion is with the Superintendent of the Jail.
The Act contemplates an individual prisoner to be kept in a cell.
It is clear from the provisions of paragraphs 571 to 575 of the Jail Manual that the rules contemplate convicted prisoner to be kept separate.
Paragraph 571 of the Jail Manual provides that all convicts, subject to cell accommodation and requirements of labour, be kept separate both by day and by night, and justifies the segregation of the appellant as a convicted criminal in a separate cell.
Paragraphs 572, 573 and 574 lay down the order in which convicted prisoners are to be selected for being kept separate in cells when each of them cannot be so kept.
All these provisions are consistent with what is enacted in section 28 of the Prisons Act.
Paragraph 575 reads: "A convict who would ordinarily come under the operation of any of the preceding 313 rules relating to the separation of prisoners, but cannot be confined in a cell by day, by reason that he is required for some jail service, shall be confined in a cell by night.
Note 1 Separation under paragraphs 571 to 575 is distinct from 'solitary ' confinement and 'separate ' confinement inflicted as a punishment under section 46 of the Prisons Act, and is restricted merely to the separation of individual prisoners either by day or night for purposes of jail management; such separation is not to have any irksome conditions attached to it.
Note 2 Paragraphs 571 to 575 are of general application.
If, in the opinion of the Superintendent, the presence of any convict in association with others, is detrimental to good order and discipline or is likely to encourage or lead to the commission of any offence, such convict should be kept separate, in preference to others of his class.
" These provisions provide an exception to the provisions of paragraphs 571 to 574 and allow the convicted prisoner to be kept in a cell during night only instead of both by day and by night, in case he cannot be confined in the cell by day for reasons that he be required for jail service.
Note 1 makes it clear that keeping prisoners separate in view of the provisions of paragraphs 571 to 575 is not 'solitary ' or 'separate ' confinement which can be inflicted as punishment and is merely separation of the prisoner for purposes of jail management.
Further, Note 1 enjoins that no irksome conditions be attached to such separation.
We are not shown that any such conditions were attached to the order for keeping the appellant in a cell.
Note 2 further empowers the Superintendent of the Jail to keep a convict separate if he be of opinion that his association with others of his class 314 is detrimental to good order and discipline in the jail.
The Superintendent states in his affidavit he that he was of such opinion.
The entire scheme of the Act and the rules is that ordinarily a prisoner should be kept separated from others and that it is only in view of limitations of providing separate cells for each prisoner that prisoners of a particular category are kept together in a large hall.
The order classifying the appellant as a B class prisoner further necessitated his being kept separate from other prisoners.
There is no provision in the Act or the rules that a prisoner kept in a cell be specially allowed to associate or mix with other prisoners.
The main grievance of the appellant is that he was not allowed to associate with his co accused, even for purpose of consultation with respect to the defence to be put up and the grounds to be taken in the appeal.
The whole object of keeping convicted prisoners segregated in jail is defeated if they are allowed to meet and discus matters even when they are under special orders for being kept separate on account of their conduct being considered detrimental to jail discipline.
If it was really necessary for the appellant to have consultations with his co accused for the purpose of the case, it was open to him to obtain orders of the Court and facilities for such consultations, if considered necessary, could have been given just as facilities are provided for accused to consult their counsel.
I am therefore of opinion that the Jail authorities committed no discriminatory or illegal act against the appellant in keeping him in a separate cell.
I would therefore dismiss both the writ petition and the appeal.
BY COURT.
In accordance with the opinion of the majority, the Writ Petition and the Appeal are allowed to the extent indicated in the majority judgment.

summary:
In May, 1959, the appellant was sent to Ambala Jail as an undertrial prisoner.
On account of certain jail offences alleged to have been committed by him the Superintendent of Jail segregated him from other prisoners and kept him in a separate cell.
He was convicted in June, 1960.
Though he was 296 not alleged to be guilty of any jail offence or indiscipline after this date he was still confined in a separate cell without being allowed to communicate with other prisoners; he was only allowed to come out in the compound attached to the cell for one hour in the morning and for one hour in the evening.
In December, 1960, the Governor ordered that the appellant be treated as a B" class prisoner.
Even after this he was still kept in a separate cell with this difference that he locked up only at night and was allowed to move in the compound attached to the cell during the day.
But he was still not allowed to communicate with others.
The Prisons Act provided for the separation of prisoners and s.28 thereof permitted convicted criminal prisoners to be confined in cells either in association or individually.
Paragraph 571 of the Punjab Jail Manual provided that so far as possible all convicts shall be kept separate both by day and by night.
Paragraph 575 provided that a convict who could not be confined in a cell by day by reason that he was required for some jail service shall be confined in a cell by night.
The appellant contended that his confinement was under para 575, that para 575 offended article 14 of the Constitution and that the Superintendent of Jail acted mala fide and discriminated against him by keeping him in solitary confinement. ^ Held, that para 575 of the Punjab Jail Manual did not offend article 14 of the Constitution.
This paragraph was a part of an integrated scheme for the maintenance of discipline of prisoners by providing for their separation.
The classification was made on the basis of sex and the nature of the prisoners and depended on the availability of cells; is had a reasonable relation to the object sought to be achieved.
The power to separate was entrusted to the highest officer in the jail who was ordinarily expected to act reasonably, objectively and without bias.
Held, further (per Sinha, C. J., Subba Rao, Shah and Mudholkar, JJ.) that the confinement of the appellant in a separate cell in the manner it was being done was illegal.
The separation of the appellant so as to seclude him from communicating with or from the sight of other prisoners certainly amounted to cellular confinement if not to solitary confinement.
This could only be done as a measure of punishment, and even then the prisoner was entitled to have one hour 's exercise every day and to have his meals in association with one or more prisoners.
The appellant was discriminated from other prisoners and, under the colour of the rules for separation, was illegally confined in a manner of authorised by law.
Per Dayal,J. There was no discrimination or illegality in keeping the petitioner in a separate cell.
The mere fact 297 that a person was kept in a separate cell did not make his confinement solitary, cellular or separate.
Paragraph 571 of the Jail Manual provided that subject to cell accommodation and requirement of labour all convicts be kept separate both by day and by night.
Paragraph 575 provided an exception that where the convict could not be kept separate by day he could be kept separate by night.
The entire scheme of the Prisons Act and the rules was that ordinarily a prisoner was to be kept separate and that only in cases of limitation of providing separate cells were prisoners to be kept together.
There was no provision that a prisoner kept in a cell was to be specially.
allowed to associate or mix with other prisoners.