judgement:
Civil Appeal No. 1583 of 1987.
From the Judgment and Order dated 22.4.1987 of the Madras High Court in W.A. No. 367 of 1983.
G. Ramaswamy, Additional Solicitor General, P. Parmeshwaran, B. Parthasarthy for the Appellants.
M.N. Krishnamani and section Balakrishnan for the Respondents.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
The short question involved in this case is whether Para 620 of the Manual of Railway Pension Rules, 1950, (hereinafter referred to as the 'Railway Pension Manual ') under which the competent authority is empowered to retire a railway employee before his normal date of retirement is for any reason void, ineffective or unconstitutional.
The respondent, R. Narasimhan, joined the Southern Railway as a Ticket Collector in the year 1950 and on being promoted at different stages he was working as a Travelling Ticket Examiner on 14th of May, 1982 when he was compulsorily retired from service by the competent authority in the Railway Administration in exercise of his powers under Para 2(2) of the Railway Ministry 's Letter dated 8.7.1950 (incorporated as Para 620 of the Railway Pension Manual).
The respondent was born on 23.9.1929 and if the order of retirement had not been passed, as stated above, he would have continued in service till he completed 58 years of age.
Aggrieved by the order of retirement, the respondent filed a Writ Petition in the High Court of Madras in Writ Petition No. 4079 of 1982 questioning the validity of the said 744 order and also of Para 620 of the Railway Pension Manual which empowered the Railway Administration to retire its employees on their completing 30 years of service.
The Writ Petition was contested by the Railway Administration and ultimately it was dismissed by the learned Single Judge of the High Court of Madras.
Aggrieved by the judgment of the learned Single Judge the respondent filed an appeal before the Division Bench of the High Court in Writ Appeal No. 367 of 1983.
The Division Bench held that Para 620 of the Railway Pension Manual whose validity had been impugned in the Writ Appeal was void and ineffective and hence the order of retirement passed by the Railway Administration in exercise of the power conferred by the said para was liable to be set aside.
Aggrieved by the judgment of the Division Bench, the Union of India and the Railway Administration have filed this appeal by special leave.
In order to appreciate the contentions of the parties, it is necessary to set out the relevant rules governing the retirement of railway employees.
Rule 2046 of the Indian Railway Establishment Code (hereinafter referred to as 'the Rules ') deals with compulsory retirement of railway servants.
The relevant part of the said rule reads thus: "2046 (F.R. 56). (a) Except as otherwise provided in this rule, every railway servant shall retire on the day he attains the age of fifty eight years.
. . . . . . . . (h) Notwithstanding anything contained in this rule, the appointing authority shall, if it is of the opinion that it is in the public interest to do so, have the absolute right to retire any railway servant giving him notice of not less than three months in writing or three months ' pay and allowances in lieu of such notice (i) if he is in Class I or Class II service or post and had entered Government Service before attaining the age of thirty five years, after he has attained the age of fifty years.
(ii) in any other case after he has attained the age of fifty five years.
(i) Any railway servant may by giving notice of not 745 less than three months in writing to the appointing authority retire from service after he has attained the age of fifty years if he is in Class I or Class II service or post and had entered Government service before attaining the age of thirty five years, and in all other cases after he has attained the age of fifty five years.
. . . . . . . . (k) Notwithstanding anything contained in clause (h) the appointing authority shall, if it is of the opinion that it is in the public interest to do so, have the absolute right to retire a railway servant in Class III service or post who is not governed by any pension rules after he has completed thirty years ' service by giving him notice of not less than three months in writing or three months ' pay and allowances in lieu of such notice.
" Para 620 of the Railway Pension Manual reads thus: "620(i).
A Railway servant may retire from service at any time after completing 30 years ' qualifying service, provided that he shall give in this behalf a notice in writing to the appropriate authority, at least three months before the date on which he wishes to retire.
. . . . . . . . (ii) The authority competent to remove the Railway servant from service may also require him to retire any time after he has completed 30 years ' qualifying service provided that the authority shall give in this behalf, a notice in writing to the Railway servant, at least three months before the date on which he is required to retire or three months ' pay and allowances in lieu of such notice.
" There is no dispute that the respondent is governed by the pension rules as he has exercised his option to be governed by them.
His contentions before the Division Bench were: (i) Rule 2046 of the Rules having been framed under the proviso to Article 309 of the Constitution and being a compendious code relating to a retired railway servant that provision alone could be invoked for the purpose of compulsory retirement and not para 620 of the Railway Pension Manual which is in 746 the nature of an executive order; (ii) Since rule 2046(h) of the Rules opens with a non obstante clause and para 620 of the Railway Pension Manual does not state that the said rule shall prevail notwithstanding any other provision to the contrary, rule 2046(h) of the Rules cannot be made subject to para 620 of the Railway Pension Manual; and (iii) there being two separate provisions with regard to compulsory retirement, namely clause (h) of rule 2046 of the Rules and para 620 of the Railway Pension Manual, in the absence of any guidance as to when and which rule could be invoked in a given case, both the provisions would be inapplicable and the respondent could not be compulsorily retired.
A reading of the relevant part of rule 2046 of the Rules and para 620 of the Railway Pension Manual shows that ordinarily every railway servant has to retire on the date he attains the age of 58 years.
Notwithstanding the said rule the appointing authority, if it is of the opinion that it is in the public interest to do so, has the power to retire any railway servant giving him notice of not less than three months in writing or three months ' pay and allowances in lieu of such notice, if he is in Class I or Class II service or post and had entered Government service before attaining the age of 35 years, after he has attained the age of 50 years and in any other case after he has attained the age of 55 years.
Similarly a railway servant may by giving notice of not less than three months in writing to the appointing authority retire from service if he is in Class I or Class II service or post and had entered Government service before attaining the age of 35 years, after he has attained the age of fifty years, and in all other cases after he has attained the age of 55 years.
These two kinds of retirement are dealt with in clauses (h) and (i) of rule 2046 of the Rules.
The governing factor in clauses (h) and (i) of rule 2046 is the age of the employee concerned at the time when it is proposed to retire him from service or when he wishes to retire from service voluntarily as the case may be.
This rule applies no doubt to all employees irrespective of the fact whether they are governed by the pension rules or not.
Clause (k) of rule 2046 provides that notwithstanding anything contained in clause (h) the appointing authority shall, if it is of the opinion that it is in the public interest to do so, have the absolute right to retire a railway servant in Class III service or post who is not governed by any pension rules after he has completed thirty years ' service by giving him notice of not less than three months in writing or three months ' pay and allowances in lieu of such notice.
Clause (1) of rule 2046 of the Rules provides that a railway servant in Class III service or post who is not governed by any pension rules, may by giving notice of not less than three months in writing to the appointing authority, retire from service after he has completed thirty years ' service.
It may be noted that in clauses (k) and 747 (1) of rule 2046 of the Rules the governing factor is not the age of the railway servant concerned but the length of the qualifying service rendered by him.
They are applicable only to a railway servant in Class III service who has completed 30 years of service in railway administration.
If a railway servant in Class III service has entered the service during his 21st year he can be retired by the Government on his completing 30 years of service in his 51st year or he may elect to retire from service in his 51st year after completing 30 years of service by following the prescribed formalities.
Clauses (k) and (I) of rule 2046, as already stated above, do not apply to railway servants who are governed by pension rules.
Para 620 of the Railway Pension Manual, which is extracted above, contains provisions corresponding to clauses (k) and (I) of rule 2046 of the Rules.
Under sub para (i) of para 620 a railway servant governed by the pension rules may retire from service at any time after completing 30 years of qualifying service provided that he has given a notice in writing to the appointing authority three months before the date on which he wishes to retire.
Sub para (ii) of para 620 of the Railway Pension Manual, which corresponds to clause (k) of rule 2046 of the Rules, empowers the competent authority to remove a railway servant from service any time after he has completed 30 years of qualifying service provided that the authority has given in this behalf a notice in writing to the railway servant at least three months before the date on which he is required to retire or three months ' pay and allowances in lieu of such notice.
It may also be noted that while clauses (k) and (1) of rule 2046 of the Rules apply only to a railway servant in Class III service or post not governed by any pension rules para 620 of the Railway Pension Manual applies to all railway servants governed by the pension rules.
The Division Bench of the High Court has held that para 620 of the Railway Pension Manual was ineffective and invalid on the ground that it was `unable to see any logic or reason or any guidance for the purpose of invoking either one or other of the provisions ' and also has further observed thus: "In the circumstances therefore, particularly in view of the fact that the Railway Establishment Code is intended to govern the service conditions of all the individual railway servants and the Pension Rules are intended only to govern the determination of pension, and Rule 2046 itself is in a way of compendious rule relating to retirement at the age of 58 years and compulsory retirement earlier we are of the view that the case is governed by Rule 2046(h) only and not 748 by Rule 620 of the Pension Rules.
This is also for the reason as rightly contended by Mr. N.C. Raghavachari, learned counsel for the appellant, that while Rule 2046(k) starts with saying that notwithstanding anything contained in Clause (h) there is no such non obstante clause in Rule 620, nor clause (h) of Rule 2046 is made subject to Rule 620.
In the circumstances, therefore, it is open to the railway servant to contend that he is governed by Rule 2046(h) and not Rule 620.
In the absence of any guiding principle specifically, it is not open to the Department to exercise an option either to invoke Rule 620 or clause (h) of Rule 2046.
" Having observed thus, the Division Bench was of the view that since Rule 2046(h) of the Rules was not applicable, as the respondent had not attained the age of 55 years on the date when he was compulsorily retired, he could not have been compulsorily retired.
We do not find any inconsistency between rule 2046 of the Rules and para 620 of the Railway Pension Manual.
As already stated by us clause (h) of rule 2046 of the Rules empowers the competent authority to retire compulsorily a railway servant on his attaining the age specified therein.
That clause has no reference to the length of service put in by a railway servant concerned.
Clause (k) of rule 2046 of the Rules under which the appointing authority can retire a person in the public interest after a railway servant has completed 30 years of service applies to a railway servant holding a Class III post and who is not governed by pension rules.
Para 620 of the Railway Pension Manual applies to all railway servants governed by the pension rules.
Railway servants holding Class I or Class II posts who cannot be retired under clause (k) of rule 2046 of the Rules can be retired on their completing 30 years of qualifying service if they are governed by the pension rules.
Similarly railway servants holding Class III posts and who are governed by the pension rules to whom clause (k) of rule 2046 of the Rules is not applicable can also be retired on their completing 30 years of qualifying service.
Thus the area of operation of para 620 of the Railway Pension Manual is different from that of clause (h) and (k) of rule 2046 of the Rules.
Para 620 of the Railway Pension Manual should be treated as supplementary to rule 2046 of the Rules.
The said para which has been framed by the Union Government in exercise of its executive power under Article 73 of the Constitution should be given due effect since there is no statutory provisions or a rule framed under the proviso to Article 309 of the Constitution which is inconsistent with it.
749 We, therefore, overrule the view expressed by the Division Bench of the High Court on the above question and uphold the validity of para 620 of the Railway Pension Manual.
Unfortunately, the case does not end here.
It appears that the respondent had raised some other contentions with regard to the validity of the impugned order of retirement in the petition.
But the Division Bench of the High Court has not expressed its opinion on those contentions since it agreed with the first contention urged on behalf of the respondent, namely, para 620 of the Railway Pension Manual was invalid.
We are, therefore, constrained to send the case back to the Division Bench of the High Court to decide the other questions raised by the respondent.
We, therefore, set aside the judgment passed by the Division Bench of the High Court and remand the case to the Division Bench of the High Court to dispose of the appeal afresh in the light of the submissions to be made by the respondent on the other contentions raised by him.
The appeal is accordingly disposed of.
There is no order as to costs.
P.S.S. Appeal allowed.

summary:
Sub para (ii) of para 620 of the Railway Pension Manual empowers the competent authority to remove a railway servant from service any time after he has completed 30 years of qualifying service.
Clause (h) of Rule 2046 (F.R. 56) of the Indian Railway Establishment Code empowers the appointing authority to retire in Public interest (i) Class I and Class II railway servant, who had entered Government Service before the age of 35 years, after he has attained the age of fifty years, and (ii) in any other case after he has attained the age of 55 years.
Clause (k) of the said rule confers absolute right on the appointing authority to retire a railway servant in Class III service, who is not governed by the Pension Rules, after he has completed thirty years of service.
The respondent, Class III servant, who had joined service in 1950 was compulsorily retired from service by the competent authority in the Railway Administration in exercise of powers under para 620 of the Manual on 14th May, 1982.
He was born on 23.9.1929 and was to continue in service till he completed 58 years of service.
The writ petition filed by him questioning the validity of the said order and also of para 620 of the Manual was dismissed by the Single Judge.
In appeal before the Division Bench it was contended for him that (i) Rule 2406 of the Rules having been framed under the proviso to Article 309 of the Constitution and being a compendious code with regard to compulsory retirement that provision alone could be invoked and not para 620 of the Manual which is in the nature of an executive 742 order, (ii) since rule 2046(h) opens with a non obstante clause and para 620 of the Manual does not state that the said rule shall prevail notwithsanding any other provision to the contrary, rule 2046(h) of the Rules cannot be made subject to para 620 of the Manual, and (iii) there being two separate provisions with regard to compulsory retirement, namely clause (h) of rule 2046 of the Rules and para 620 of the Manual, in the absence of any guidance as to when and which rule could be invoked in a given case, both the provisions would be inapplicable and he could not be compulsorily retired.
The High Court held that para 620 of the Railway Pension Manual was void and ineffective.
It took the view that since rule 2046(h) of the Rules was not applicable, as the respondent had not attained the age of 55 years on the date he was compulsorily retired, he could not have been compulsorily retired.
Allowing the appeal by special leave and remanding the case to the High Court, ^ HELD: 1.1 Para 620 of the Railway Pension Manual is valid.
The High Court was not right in taking the view it did.
[749A] 1.2 There is no inconsistency between rule 2046 of the Rules and para 620 of the Railway Pension Manual.
Clause (h) of rule 2046 of the Rules empowers the competent authority to retire compulsorily a railway servant on his attaining the age specified therein.
That clause has no reference to the length of service put in by a railway servant concerned.
Clause (k) of the said rule under which the appointing authority can retire a person in the public interest after a railway servant has completed 30 years of service applies to a railway servant holding a Class III post and who is not governed by pension rules.
Para 620 of the Manual applies to all railway servants governed by the pension rules.
Railway servants holding Class I or Class II posts who cannot be retired under clause (k) of rule 2046 of the Rules can be retired on their completing 30 years of qualifying service if they are governed by the pension rules.
Similarly, railway servants holding Class III posts and who are governed by the pension rules to whom clause (k) of rule 2046 of the Rules is not applicable can also be retired on their completing 30 years of qualifying service.
Thus, the area of operation of para 620 of the Railway Pension Manual is different from that of clauses (h) and (k) of rule 2046 of the Rules.
[748D G] 1.3 Para 620 of the Railway Pension Manual which has been framed by the Union Government in exercise of its executive power under Article 73 of the Constitution should, therefore, be treated as supple 743 mentary to rule 2046 of the Rules, and given due effect since there is no statutory provision or a rule framed under the proviso to Article 309 of the Constitution which is inconsistent with it.
[748G H] 2.
Since the respondent had raised some other contentions with regard to the validity of the impugned order of retirement in the petition and the High Court has not expressed its opinion on those contentions, the case is remanded to the Division Bench of the High Court to dispose of the appeal afresh in the light of the submissions to be made by the respondent on the other contentions raised by him.
[749C]


judgement:
ivil Appeal Nos.
2366 67 of 1988 etc.
From the Judgment and order dated 21.2.1985 of the Punjab and Haryana High Court in C.W.P. No. 5353 of 1984.
Pankaj Kalra, B.S. Gupta, P.C. Kapur and section Mitter for the Appellants.
Rajinder Sachar, D.K. Garg, Mahabir Singh and A.K. Goel for the Respondents.
The Judgment of the Court was delivered by PATHAK, CJ.
Special leave to appeal is granted in both the special leave petitions.
The petitioners are teachers employed in various recognised aided private schools in the State of Haryana.
The schools are maintained under private management.
They receive financial aid from the State Government.
The petitioners have come to Court alleging that teachers employed in Government aided private schools are entitled to parity with the teachers employed in Government schools in the matter of pay scales and other emoluments such as Dearness Allowance, House Rent Allowance, City Compensatory Allowance, 684 Medical Reimbursement and Gratuity, etc.
It appears that prior to A 1967 there was considerable disparity in the emoluments of teachers employed in the same State, and the Government of India appointed the Kothari Commission to examine the conditions of service of teachers with the object of improving the standards of education in the country.
Among other things, the Kothari Commission recommended that the scales of pay of school teachers belonging to the same category but working under different managements such as Government, local bodies or private organisations should be the same.
Almost all the States, including the State of Haryana, decided to implement the recommendations of the Kothari Commission.
The State of Haryana declared in January, 1968 that the revised rates suggested by the Kothari Commission would be made effective from 1 December, 1967, and that the grades of teachers of privately managed schools would be revised on the pattern of the grades of teachers working in Government schools.
As the deficit between the original grades and the revised grades was found too burden some for the managements of the aided schools to bear, the State decided to meet the increased expenditure entirely in regard to Pay and Dearness Allowance.
The State Government followed the principle of parity between the teachers working in aided schools and Government schools until 1979.
In 1979, the pay scale of teachers in Government schools was revised by the State after the report of the Pay Commission, but in the case of the teachers of aided schools the revision was effected two years later.
The petitioners allege that the salary and other emoluments paid to the teachers of aided schools have fallen far behind the emoluments paid to the teachers in Government schools and this Court should interfere in order to remove such discrimination.
We are told that there are about sixty thousand teachers in Government schools while a mere four thousand teachers are employed in aided schools.
According to the petitioners, to provide education in schools is the constitutional responsibility of the Government, and this is reflected in the deep and pervasive control exercised by the Government over the running of aided schools.
It is pointed out that the control is exercised over almost all areas of management.
The Committee of management has to be approved by the State Government, so have the strength of the teaching and the other staff as well as the qualifications and other conditions of eligibility for appointment to the staff.
The mode of selection and the determination of seniority are subject to the directions of the State Government and teachers cannot be dismissed, removed or reduced in rank without the prior approval of the State authorities.
The tuition fee, as well as free ships, concession and scholarships are fixed by the State Government, which is also empowered to give instructions in 685 regard to the time table, working hours, pupil ratio, attendance and workload.
The financial resources and the heads of income and expenditure are indicated by the State Government.
We have heard learned counsel for the parties at considerable length, and we find general agreement between the parties that there is no reason for discrimination between the teachers employed in aided schools and those employed in Government schools so far as the salaries and Additional Dearness Allowances are concerned.
The State Government does not accept the claim to parity in respect of other heads of allowance put forward by the petitioners.
We were at one time disposed to ruling on the question whether the responsibility for providing education in schools belongs to the State Government, and therefore whether there is a corresponding responsibility on the State Government to ensure that in aided schools the teachers are entitled to the same emoluments as are provided for teachers in Government schools.
We do not, however, propose to enter upon this question in these cases as we are satisfied from the developments which have followed after the hearing on the merits that it would be more appropriate to dispose of these cases by a short order.
The State Government has expressed its readiness to reimburse the payment of ten instalments of the Additional Dearness Allowance, but not the twenty five Additional Dearness Allowance instalments released after 1 April, 1981.
It appears that the grant in aid given by the State Government to these aided schools covers the deficit to the extent of seventy five per cent of the approved expenditure.
The approved expenditure extends to the salaries paid to the teaching and non teaching staff, which includes the Pay and Dearness Allowance and Interim Relief before 1 April, 1981 and the Pay and Additional Dearness Allowance beyond 1 April, 1981, the deficit expenditure minus income and certain other items, but does not include House Rent Allowance, Medical Allowance, City Compensatory Allowance and the other heads claimed by the petitioners.
In our opinion, the teachers of aided schools must be paid the same pay scale and Dearness Allowance as teachers in Government schools for the entire period claimed by the petitioners, and that the expenditure on that account should be apportioned between the State and the Management in the same proportion in which they share the burden of the existing emoluments of the teachers.
The State Government meets the Dearness Allowance liability to the extent of seventy five per cent of the amount.
Ten instalments representing the State Government 's liability shall be paid by the State Government in two equal parts, the first part being payable within three months from today and the remaining part being pay 686 able by 31 March, 1989.
The State Government shall also pay the remaining twenty five instalments, the entire amount being payable in five equal parts, each part being paid every six months, the first such part being payable by 30 September, 1989.
The State Government shall not be liable to pay for the period covered by these 35 instalments any amount on account of House Rent Allowance, City Compensatory Allowance and the other allowances claimed by the petitioners.
The State Government will also take up with the managements of the aided schools the question of bringing about parity between the teachers of aided schools and the teachers of Government schools for the period following that to which the aforesaid thirty five instalments relate, so that a scheme for payment may be evolved after having regard to the different allowances claimed by the petitioners.
In the case of teachers who have retired or who have died in service during the pendency of these cases, payment of the first ten instalments shall be made to the retired teachers and to the legal representatives of the deceased teachers within three months from today.
The appeals and the writ petitions are disposed of accordingly.
H.L.C. Appeals & Petitions disposed of.

dataset_name: IN-Abs

summary:
The Kothari Commission appointed by the Government of India to examine the conditions of service of teachers with the object of improving the standards of education in the country recommended inter alia that the scales of pay of school teachers belonging to the same category but working under different managements such as Government, local bodies or private organisations should be the same, and, falling in line with other States, the State of Haryana decided to implement the same with effect from 1 December, 1967.
As the deficit between the original grades and the revised grades was found too burdensome for the managements of the aided schools to bear, the State decided to meet the increased expenditure entirely in regard to Pay and Dearness Allowance.
The State Government followed the principle of parity between the teachers working in aided schools and Government schools until 1979.
In 1979, the pay scale of teachers in Government schools was revised by the State after the report of the Pay Commission, but in the case of the teachers of aided schools the revision was effected two years later.
The appellants and the writ petitioners, who were teachers employed in various recognised aided private schools, alleged that the salary and other emoluments such as Dearness Allowance, House Rent Allowance, City Compensatory Allowance, Medical Reimbursement, Gratuity, etc., paid to them had fallen far behind the emoluments paid to the teachers in Government schools and this Court should interfere in order to remove such discrimination since the constitutional responsibility of providing education in schools devolved on the Government and it exercised deep and pervasive control over the running of aided schools.
Disposing of the appeal and petitions, ^ HELD: There is general agreement between the parties that there is no reason for discrimination between the teachers employed in aided 683 schools and those employed in Government schools far as the salaries and Additional Dearness Allowances are concerned.
The State Government has expressed its readiness to reimburse the payment of ten instalments of the Additional Dearness Allowance, but not the twenty five Additional Dearness Allowance instalments released after 1 April, 1981.
In our opinion, the teachers of aided schools must be paid the same pay scale and Dearness Allowance as teachers in Government schools for the entire period claimed by the petitioners, and that the expenditure on that account should be apportioned between the State and the Management in the same proportion in which they share the burden of the existing emoluments of the teachers.
[685B C, E G] The State Government will also take up with the managements of the aided schools the question of bringing about Party between the teachers of aided schools and the teachers of Government schools so that 9 scheme for payment may be evolved after having regard to the different allowances claimed by the petitioners.
[686C]


judgement:
tition (Civil) No. 1426 of 1987.
(Under Article 32 of the Constitution of India).
Ms. Abha Jain for the Petitioner.
M.P. Jha for the Respondent.
The Judgment of the Court was delivered by PATHAK, C.J.
This writ petition arises upon a letter received from the Yuva Adhivakta Kalyan Samiti, Sasaram, District Rohtas (Bihar).
Among other things, it is alleged in the letter that the female inmates of the "Care Home", Patna (Bihar) are compelled to live in 757 inhuman conditions in an old dilapidated building, that they are ill treated, provided food which is both insufficient and of poor quality, and that no medical attention is afforded to them.
On 18 November, 1987 this Court issued notice to the Superintendent of the Home, the District Magistrate, Patna and the State of Bihar and simultaneously ordered the learned District Judge, Patna to visit the Home and submit a report on the conditions actually prevailing there in the context of the allegations contained in the letter.
The learned District Judge has submitted his report.
He states that the "Care Home" is managed by the Welfare Department of the State Government under the administrative control of the Deputy Director, Welfare, Patna, that although there is provision for a full time Superintendent no full time Superintendent has been appointed, and instead the District Welfare officer, Smt.
M.B. Verma, who is posted at Arrah, is in dual charge of the "Care Home".
The staff includes two whole time matrens, two male clerks and two night Guards and recently three Supervisors have been attached to the Home.
There are three teachers and one senior Instructress for imparting vocational training.
He points out that thirty inmates recently escaped from the "Care Home" and now three Home Guards have been posted.
His report discloses a sorry state of affairs.
He points out that the building in which the inmates are housed is a century old dilapidated house rented for the purpose.
The building is absolutely uninhabitable and unsafe, and during the rainy season the roof leaks almost at every point.
Five small damp and dirty rooms with no windows are used to accommodate twenty five inmates, while the remaining women have to sleep in an open verandah.
Only a few of the women have been provided with blankets and cots.
He reports that whereas the capacity of the "Care Home" is over one hundred, the Deputy Superintendent admitted before him that there were only twenty five thin blankets.
Most of the inmates were compelled to sleep on the broken floor without even a sheet to cover themselves.
There was no woollen clothing at all, nor were they provided with soap or oil.
The diet provided to them cost Rs.5 per day and was hardly adequate to sustain them.
As regards toilet facilities, he says that there is one municipal tap outside in the open, which also was not in proper working order.
There was acute scarcity of water.
One hand pump had been installed in the previous month.
Three dilapidated lavatories existed far away from the main apartment.
There was no bathroom or toilet inside the apartment and the inmates had to go out in the night to the distant toilets.
The report discloses further that the inmates stated that they were often beaten up in case they complained before the authorities, and most of them expressed a desire to be set free to earn their livelihood or to return to their families.
Twelve lunatic inmates 758 had been transferred to the Ranchi Mental Asylum, and eleven children had been sent to the Bal Bhawan, Deoghar.
The majority of the inmates were major? five of them being deaf and dumb. All of them were in protective custody by the order of various judicial and executive magistrates of the State.
There was no regular visit by any physician, the last visit of a doctor having taken place almost two months before.
India is a welfare State governed by a Constitution which holds the pride of place in the hearts of its citizens.
It lays special emphasis on the protection and well being of the weaker sections of society and seeks to improve their economic and social status on the basis of constitutional guarantees spelled out in its provisions.
It shows a particular regard for women and children, and notwithstanding the pervasive ethos of the doctrine of equality it contemplates special provision being made for them by law.
This is only to be expected when an enlightened constitutional system takes charge of the political and socio economic governance of a society, which has for centuries witnessed the relegation of women to a place far below their due.
We live in an age when this Court has demonstrated, while interpreting Article 21 of the Constitution, that every person is entitled to a quality of life consistent with his human personality.
The right to live with human dignity is the fundamental right of every Indian citizen.
so, in the discharge of its responsibilities to the people, the State recognises the need for maintaining establishments for the care of those unfortunates, both women and children, who are the castaways of an imperfect social order and for whom, therefore, of necessary provision must be made for their protection and welfare.
Both common humanity and considerations of law and order require the State to do so.
To abide by the constitutional standards recognised by well accepted principle, it is incumbent upon the State when assigning women and children to these establishments, euphemistically described as "Care Home", to provide at least the minimum conditions ensuring human dignity.
What we see before us in the instant case is a crowded hovel, in which a large number of human beings have been thrown together, compelled to subsist in conditions of animal survival, conditions which blatantly deny their basic humanity.
How else shall we describe an establishment where women are detained in miserable conditions, compelling most of them to sleep on broken floors, in damp and dank conditions, with no covering whatever to protect them from the chill wind and near freezing temperatures of the north Indian winter, who are fed a wretched health denying diet, are denied the basic amenities of convenient toilets and a private bathing place, who, 759 if they complain, are beaten up, and although attacked by disease and illness are unable to find timely medical relief.
It is clear that the Welfare Department of the State Government of Bihar views its responsibilities in regard to these women with a lightness which ill befits its existence and the public funds appropriated to it.
The name of "Care Home" given to these establishments is an ironic misnomer.
The primitive conditions in which the inmates are compelled to live shock the conscience.
The counter affidavit filed on behalf of the Welfare Department of the State Government seeks to minimise and gloss over the deplorable conditions faced by the inmates, and the presence of many of the facilities alleged to exist cannot be accepted in the face of the report of the learned District Judge.
The affidavit, sworn by the Assistant Director (Social Welfare), does not disclose that he visited the home personally.
The facts seem to have been supplied to him by others.
The report of the learned District Judge, on the contrary, is the report of an objective neutral observer who took the trouble of visiting the place himself.
We have every reason to prefer the facts set out in his report.
In the circumstances, we think it necessary to direct the State Government to provide suitable alternative accommodation expeditiously for housing the inmates of the present "Care Home".
It is said that the State Government has given two acres of land near the Ganga bridge at Patna to the Welfare Department for putting up a complex as a "Care Home" and for shifting to it such inmates as are also housed in a Government building.
It is stated that the Welfare Department has sanctioned 31.10 lakhs for establising a Care Home in the building and that Rs. 12 lakhs have been allocated for constructing the building.
We do not know how long it will take for the new building to be ready.
It is necessary meanwhile to put the existing building, in which the inmates are presently housed, into proper order immediately, and for that purpose to renovate the building and provide sufficient amenities by way of living rooms, bathrooms and toilets within the building, and also to provide adequate water and electricity.
A suitable range of furniture including Cots must be provided at once, and an adequate number of blankets and sheets, besides clothing, must be supplied to the inmates.
We note that the Welfare Department has stated that the allowance of the inmates is being increased from Rs. 150 per month to Rs. 200 per month and that besides they will be provided such amenities as Soap, oil and other toilet requisites.
The Welfare Department of the State Government will take immediate steps to comply with the directions we have framed for the welfare of the 760 inmates of the Care Home.
We direct the Welfare Department further to appoint a full time Superintendent to take care of the Home, and to ensure that a Doctor visits the Home daily.
We are constrained to note also that the inmates have been committed to the care of this Home under orders issued by various Courts in Bihar or by different Executive authorities.
The Welfare Department will submit a report within one month from today detailing the particulars of these cases and mentioning the judicial or executive authority concerned to the High Court, and the High Court will thereupon issue necessary instructions to the pertinent District authority for taking appropriate steps in the different cases for their early disposal.
With these directions, we dispose of this Writ Petition.
We make it clear, however, that in the event of no, or insufficient, compliance being made with this order, we will have no hesitation in reopening the case for such further steps as may be considered necessary for enforcing this order.
H.L.C. Petition disposed of.

summary:
This writ petition arose upon a letter received from a voluntary organisation alleging that the female inmates of a `Care Home ' in Bihar were compelled to live in inhuman conditions.
Pursuant to a direction made by the court, the District Judge, Patna visited the `Care Home ' and submitted a report on the conditions actually prevailing there.
Disposing of the writ petition, ^ HELD: Every person is entitled to a quality of life consistent with his human personality.
The right to live with human dignity is the fundamental right of every Indian citizen under article 21 of the Constitution.
And, so, in the discharge of its responsibilities to the people, the State recognises the need for maintaining establishments for the care of those unfortunates, both women and children, who are the castaways of an imperfect social order and for whom, therefore, of necessity provision must be made for their protection and welfare.
Both common humanity and considerations of law and order require the State to do so.
To abide by the constitutional standards recognised by well accepted principle, it is incumbent upon the State when assigning women and children to these establishments, to provide at least the minimum conditions ensuring human dignity.
[758D F] India is a welfare State governed by a Constitution which lays special emphasis on the protection and well being of the weaker sections of society and seeks to improve their economic and social status.
It shows a particular ragard for women and children, and notwithstanding the pervasive ethos of the doctrine of equality it contemplates special provision being made for them by law.
[758B C] What we see before us in the instant case is a crowded hovel, in which a large number of human beings have been thrown together, compelled to subsist in conditions of animal survival, conditions which 756 blatanly deny their basic humanity.
It is clear that the Welfare Department of the State Government of Bihar views its responsibilities in regard to these women with a lightness which ill befits its existence and the public funds appropriated to it.
The name of "Care Home" given to these establishments is an ironic misnomer.
The primitive conditions in which the inmates are compelled to live shock the conscience.
[758G; 759A B] The State Government should provide suitable alternative accommodation expeditiously for housing the inmates of the present "Care Home".
It is necessary meanwhile to put the existing building, in which the inmates are presently housed, into proper order immediately, and for that purpose to renovate the building and provide sufficient amenities by way of living room, bathrooms and toilets within the building, and also to provide adequate water and electricity.
A suitable range of furniture, including Cots must be provided at once, and an adequate number of blankets and sheets, besides clothing, must be supplied to the inmates.
The Welfare Department of the State Government will take immediate steps to comply with these directions.
[759D, F H] The inmates have been committed to the care of this Home under orders issued by various Courts in Bihar or by different Executive authorities.
The Welfare Department will submit a report within one month from today detailing the particulars of these cases and mentioning the judicial or executive authority concerned to the High Court, and the High Court will thereupon issue necessary instructions to the pertinent District autority for taking appropriate steps in the different cases for their early disposal.
[760B C]


judgement:
vil Appeal No. 2746 of 1988.
From the Judgment and Order dated 25.8.1987 of the Calcutta High Court in Appeal from Original Order No. 158 of 1982.
D. Bhandari for the Appellant.
S.K. Dholakia and Vineet Kumar for the Respondent.
PG NO 233 The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
Special leave granted.
The appeal is disposed of by the order herein.
This appeal is directed against the judgment and order of the Division Bench of the High Court of Calcutta, dated 25th August, 1987, dismissing the application for setting aside the award, on the ground that the said application was barred by lapse of time.
The award in this case was filed in the High Court on 4th February, 1977.
The respondent affirmed an affidavit on 29th November, 1977 stating that the award had been filed in the Court on 4th February, 1977 and Prayed that a notice be issued and served on the appellant so that the judgment in terms of the award could be passed.
On 10th January, 1978 the respondent 's advocate on record took out a Master 's Summons and used the aforesaid affidavit as the ground for the prayers which were made in the summons.
On lst February, 1978 M/s. Khaitan & Company, solicitors, on behalf of the appellant, filed a Vakalatnama and a requisition in the department of the High Court for searching the records in this case.
On 2nd February, 1978, M/s. Khaitan & Co. searched the records of the High Court of Calcutta.
On 4th February, 1978, the appellant filed an affidavit stating that the award had been wrongly filed in the High Court of Calcutta and it should be taken off the file.
On 3rd May, 1978 an order was passed as prayed in the affidavit and the Master 's Summons, and on 30th July, 1981, a notice under Section l4(2) of the (hereinafter called `the Act ') was served on the appellant.
Section 14(2) of the Act enjoins the arbitrator or the umpire to give notice to the parties of filing of the award in order to facilitate the passing of the order thereon.
On 18th August, 1981, the appellant applied for a certified copy of the award and the application for setting aside the award under Section 30 of the Act, was filed on 8th September, 1981.
Under clause (b) of Article 119 of the the time for setting aside an award or getting an award remitted for reconsideration is 30 days from the date of the service of the notice of the filing of the award.
Hence, there must be filing of the award in Court.
A notice must be given to the party/parties concerned of such filing of the award in the Court and on the expiry of 30 days from the service of the said notice limitation for setting aside an award expires.
ln this case, it appears PG NO 234 that the appellant applied for a certified copy of the award on 18th August, 1981 and on lst September, 1981, the appellant received the certified copy from the Court.
The application under Section 30 of the Act, for setting aside the award was made on 8th September, 1981.
Hence, if the date of service of the notice of the filing of award be 30th July, 1981, then in the events that have happened as narrated above, indisputably the application was within time.
If, however, the notice is attributed to have been served prior to that date then the application was barred by lapse of time.
The High Court held that the notice in this case was served prior to 30th July, l981.
It appears as mentioned before that on 4th February, 1978 an affidavit had been filed in the High Court, stating on behalf of the appellant that the award had been wrongly filed in that Court.
The appellant has, therefore, acknowledged that the award had been filed and a notice was issued to it in respect of the said award.
ln our opinion, this conclusion irresistibly follows from the narration of events mentioned hereinbefore.
ln order to be effective both for the purpose of obtaining the judgment in terms of the award and for setting aside the award, the award must be filed in the Court.
There must be service of notice or intimation or communication of the filing of the said award by the Court to the parties.
If all these factors are established or are present, the mode of service of the notice would be irrelevant.
If the substance is clear, the form of the notice is irrelevant but the notice of the award having been filed in the court, is necessary.
The filing in the Court is necessary and the intimation thereof by the Registry of the Court to the parties concerned, is essential.
Beyond this there is no statutory requirement of any technical nature under Section 14(2) of the Act.
This conclusion, in our opinion, irresistibly follows from the principles enunciated by this Court in Nilkantha Shidramappa Ningashetti vs Kashinath Sommanna Ningashetti & Ors., where this Court held that the communication by the Court to the parties concerned or their counsel, of the information that an award has been filed was sufficient compliance with the requirements of sub section (2) of Section 14 of the Act.
ln the aforesaid decision this Court reiterated that the notice need not necessarily mean "communication in writing".
The expression "give notice" in sub section (2) of Section 14 of the Act simply means giving intimation of the filing of the award.
Such intimation need not be given in writing and could be communicated orally or otherwise.
That would amount to service of the notice when no particular mode was specified.
Elaborating the aforesaid PG NO 235 principles this Court at page 555 of the said report observed as follows: "Sub section (1) of section 14 of the (X of 1940) requires the arbitrators or umpire to give notice in writing to the parties of the making and signing of the award.
Sub section (2) of that section requires the Court, after the filing of the award, to give notice to the parties of the filing of the award.
The difference in the provisions of the two sub sections with respect to the giving of notice is significant and indicates clearly that the notice which the Court is to give to the parties of the filing of the award need not be a notice in writing.
The notice can be given orally.
No question of the service of the notice in the formal way of delivering the notice or tendering it to the party can arise in the case of notice given orally.
The communication of the information that an award has been filed is sufficient compliance with the requirements of sub s.(2) of section 14 with respect to the giving of the notice to the parties concerned about the filing of the award.
`Notice ' does not necessarily mean `communication in writing '.
`Notice ' according to the Oxford Concise Dictionary, means `intimation, intelligence, warning ' and has this meaning in expressions like `give notice, have notice ' and it also means `formal intimation of something, or instructions to do something ' and has such a meaning in expressions like `notice to quit, till further notice '.
We are of opinion that the expression `give notice ' in sub section
(2) of section 14, simply means giving intimation of the filing of the award, which certainly was given to the parties through their pleaders on February 21, 1948.
Notice to the pleader is notice to the party, in view of r. 5 of O. III, Civil Procedure Code, which provides that any process served on the pleader of any party shall be presumed to be duly communicated and made known to the party whom the pleader represents and, unless the court otherwise directs, shall be as effectual for all purposes as if the same had been given to or served on the party in person.
" The aforesaid question was again examined from a slightly different angle later in Dewan Singh vs Champat Singh & Ors., ; where this Court while dealing with Article 158 of the Limitation Act, 1908 which was the previous Article corresponding to clause (b) of Article 119 of the , held that the said PG NO 236 Article gave 30 days ' time for applying to set aside the award; from the date of service of the notice of the filing of the award.
As mentioned hereinbefore, the notice of the service of the award may be communicated in any form.
It need not necessarily be in writing.
If that is the position in law then in view of the facts of this case the conclusion would irresistibly be that the notice was served at least either on 3rd or 4th February, 1978 because at that time the appellant had acknowledged that the award had been filed in view of the affidavit filed by it in the High Court of Calcutta and that the award had been filed in a wrong Court, according to the appellant, and that he had notice of the said filing communicated to him by the Court.
That would be natural and ordinary inference to draw from the conduct of the parties as narrated before.
lf that is the position then the application, in our opinion, for setting aside the award was, indisputably, barred by limitation.
Counsel for the appellant, however, drew our attention to the statement recorded by the High Court where it was stated as follows: "The learned counsel for both parties have agreed the service of notice under section 14(2) of the is a mandatory provision and an application for setting aside of the award shall not be time barred so long as the aforesaid notice is not served.
" It was, however, submitted on behalf of the appellant that there cannot be any concession on a question of law.
We are of the opinion that this concession does not, as such, help the parties very much.
The fact that the parties have notice of the filing of the award, is not enough.
The notice must be served by the Court.
We reiterate again that there must be (a) filing of the award in the proper court; (b) service of the notice by the court or its officer to the parties concerned; and (c) such notice need not necessarily be in writing.
It is upon the date of service of such notice that the period of limitation begins and as at present under clause (b) of Article 119 of the Act, the limitation expires on the expiry of the thirty days of the service of that notice for an application for setting aside of the award.
The importance of the matter, which need be emphasised, is the service of the notice by the Court.
It is not the method of the service that is important or relevant.
In this case as both the Courts have, in fact, found that the notice was issued and served and, in our opinion, that finding is based on cogent material and relevant evidence, prior to 30th July, 1981, the application made in this case was clearly barred by lapse of time.
PG NO 237 We find, therefore, no ground to interfere with the decision of the High Court.
The appeal accordingly fails and is dismissed without any order as to costs.
P.S.S. Appeal dismissed.

summary:
Section 14(2) of the enjoins the arbitrator or the umpire to give notice to the parties of filing of the award.
Under clause (b) of Article 119 of the , the time for making an application for setting aside an award or getting an award remitted for reconsideration is thirty days from the date of service of the notice of the filing of the award.
The award was filed in the court on 4th February, 1977.
The respondent affirmed an affidavit on 29th November, 1977 to that effect and prayed that a notice be issued and served on the appellant.
Thereafter a Master 's Summons was taken out by the respondent on 10th January, 1978 using the said affidavit as the ground for the prayers.
On 4th February, 1978 the appellant filed an affidavit stating that the award had been wrongly filed in the High Court and it should be taken off the file.
On 3rd May, 1978 an order was passed as prayed in the affidavit and the Master 's Summons, and on July 30, 1981 a notice under section 14(2) of the Act was served on the appellant.
The appellant applied for certified copy of the award on 18th August, 1981 and received the same on lst September, 1981.
It made an application under section 30 of the Act on 8th September, 1981 for setting aside of the award.
The High Court held that the notice was served prior to 30th July, 1981 and as such the application was barred by lapse of time.
PG NO 232 Dismissing the appeal by special leave, HELD: In order to be effective both for the purpose of the judgment in terms of an award and for setting aside the award, the award must be filed in the proper court.
There must be service of notice or intimation or communication of the filing of the said award by the court to the parties.
If all these factors are established or are present, the mode of service of the notice would be irrelevant.
It need not necessarily be in writing.
If the substance is clear the form of the notice is irrelevant but the notice of award having been filed in the court, is necessary.
The filing in the court is necessary and the intimation thereof by the Registry of the court to the parties concerned is essential.
Beyond this there is no statutory requirement of any technical nature under section 14(2) of the .
[234D] It is upon the date of service of such notice that the period of limitation begins and as at present under clause (b) of article 119 of the the limitation expires on the expiry of the thirty days of the service of that notice for an application for setting aside of the award.
l236F] In the instant case, on 4th February, 1978 an affidavit had been filed in the High Court, stating on behalf of the appellant that the award had been wrongly filed in that Court.
The appellant had, therefore, acknowledged that it had notice of the said filing communicated to it by the Court.
The notice can thus be attributed to have been served on the appellant either on 3rd or 4th February, I978, prior to 30th July, 1981.
If that is the position then the application for setting, aside of the award was clearly barred by lapse of time.
[234C, 236B H, 237A] Nilkantha Shidramappa Ningashetti vs Kashinath Somanna Ningashetti & Ors., and Dewan Singh vs Champat Singh & Ors., ; referred to.


judgement:
vil Appeal Nos. 1271 and 1272 of 1978.
From the Judgment and Order dated 18.4.1978 of the Allahabad High Court in Civil Revision Nos. 161 and 163 of 1975.
G.L. Sanghi, K.B. Rohtagi and Praveen Jain for the Appellants.
Satish Chandra Aggarwal, S.K. Dhingra, Pramod Swarup, S.K. Mehta and Aman Vachhar for the Respondents.
The Judgment of the Court was delivered by OJHA, J.
These appeals by special leave have been preferred by tenants of certain premises against the judgment of the Allahabad High Court dismissing their civil revisions.
The facts in a nutshell necessary for the decision of these appeals are that one Mahabir Prasad had let out the PG NO 240 premises in question to the appellants.
It appears that on 28th November, 1966 Sukmal Chand alias Lalloo, son of Mahabir Prasad was murdered leaving Smt.
Sulochna Devi as his widow and two sons Sanjeev Kumar alias Teetu aged 1 1/2 years and Rajeev Kumar alias Cookoo aged 3 years.
Mahabir Prasad on 8th December, 1966 executed a registered deed with regard to certain properties including the premises in question which he described as his own by using the words "out of my property".
The nature of the deed would appear from the following recital contained therein: "I give the benefits arising out of the above said property to my grand sons Rajeev Kumar alias Cookoo aged 3 years, and Sanjeev Kumar alias Teetu aged 1 1/2 years S/o Sukmal Chand and Guardian Smt.
Sulochna Devi mother of the children, residents of Town Sardhana.
Therefore Smt.
Sulochna Devi will be able to maintain herself and her born and unborn children from the rent realized from the above said three shops and she will use the house as her residence and with her I and my wife Sunheri Devi will live throughout life.
Sulochna Devi will neither be able to transfer these shops and house nor to mortgage them by borrowing money.
She will have the right to maintain her children only with the benefit arising from them.
I will neither interfere with her right nor transfer the ownership of this property.
Hence this Parivarik Vayawastha Patra i.e. family settlement has been scribed.
dated 8 December.
" It further appears that after executing the said deed Mahabir Prasad informed the tenants concerned to make payment of rent to Smt.
Sulochna Devi in terms of the aforesaid deed and the tenants started paying rent accordingly.
Mahabir Prasad, however, subsequently executed a deed of cancellation dated 3rd November, 1970.
This deed too was registered and Mahabir Prasad thereby purported to cancel the deed dated t3th December, 1966 for reasons stated therein.
In this deed Mahabir Prasad inter alia stated that by the deed dated 8th December, 1966 written in favour of Sanjeev Kumar alias Teetu and Rajeev Kumar alias Cookoo, guardian Smt.
Sulochna Devi mother had been given the right to realise rent and that the deed of cancellation "debarred them from the right to realising the rent".
The tenants were informed about the deed of cancellation also.
PG NO 241 Subsequently suits were instituted by Mahabir Prasad against the appellants for recovery of arrears of rent etc.
and their eviction from the premises in their tenancy on the ground that notwithstanding being informed of the deed of cancellation they had not paid rent to him and were in arrears.
One of the pleas raised in defence by the appellants was that the deed dated 8th December, 1966 could not be unilaterally cancelled by Mahabir Prasad by the subsequent deed dated 3rd November, 1970 and that the rent claimed by Mahabir Prasad to be in arrears had already been paid by them to Smt.
Sulochna Devi.
In other words, title of Mahabir Prasad to realise rent from the appellants was disputed by them.
Sulochna Devi was also arrayed as a defendant in these suits.
She seems to have filed a written statement acknowleding receipt of rent claimed by Mahabir Prasad as arrears from the appellants.
The pleas raised by.
the appellants in their defence did not find favour with the Judge, Small Causes in whose court the suits were filed and consequently the suits were decreed.
The appellants filed revisions before the District Judge and on these revisions being dismissed the appellants filed further revisions before the High Court which too were dismissed.
It is against these judgments of the High Court that these appeals have been preferred.
With regard to the deed dated 8th December, 1966 it has been held that by the said deed only a permission bad been granted by Mahabir Prasad to Smt.
Sulochna Devi to realise rent and to maintain herself and her two children and that it did not amount to a transfer of immovable property in favour of Smt.
Sulochna Devi.
It has further been held that in this view of the matter Mahabir Prasad was competent to revoke the permission granted to Smt.
Sulochna Devi.
The other plea that the suit involved a question of title and consequently was not cognizable by a court of small causes also did not, as a consequence of the aforesaid finding, find favour with the courts below.
It has been urged by learned counsel for the appellants that by the deed dated 8th December, 1966 the right to rent and not only the right to realise the rent was transferred and this right was described in the deed by saying "I give the benefits arising out of the abovesaid property".
According to learned counsel benefits arising out of immovable property themselves partook the nature of immovable property and the said deed having been acted upon, it was not open to Mahabir Prasad to unilaterally cancel the benefits conferred on Smt.
Sulochna Devi and her sons, by the subsequent deed.
PG NO 242 Learned counsel appearing for the landlord on the other hand urged that the courts below have rightly interpreted the deed dated 3th December, 1966 to be one which only granted the permission to realise rent and the plea raised by the tenants did not involve any question of title.
Having heard learned counsel for the parties we are of the opinion that on the facts of the instant case the provisions of Section 23 of the Provincial Small Cause Courts Act (hereinafter referred to as the Act) are clearly attracted and the plaints of these cases ought to have been returned for presentation to a court having jurisdiction to determine the title.
Section 23 reads as hereunder: "23.
Return of plaints in suits involving questions of title : (1) Notwithstanding anything in the foregoing portion of this Act, when the right of a plaintiff and the relief claimed by him in a Court of Small Causes depend upon the proof or disproof of a title to immovable property or other title which such a Court cannot finally determine, the Court may at any stage of the proceedings return the plaint to be presented to a Court having jurisdiction to determine the title.
(2) When a Court returns a plaint under sub section (1), it shall comply with the provisions of the second paragraph of section 57 of the Code of Civil Procedure ( 14 of 1982) and make such order with respect to costs as it deems just and the Court shall, for the purposes of the Indian Limitation Act, 1877 (15 of 1877) be deemed to have been unable to entertain the suit by reason of a cause of a nature like to that of defect of jurisdiction.
With regard to the applicability of Section 23 aforesaid the High Court has taken the view that the said section gave a discretion to a court to return or not to return the plaint where a question of title is raised and did not debar it from deciding the suit.
If in a particular case the Judge, Small Causes did not exercise his discretion to return the plaint the said discretion could not be interfered with in a civil revision.
It is true that Section 23 does not make it obligatory on the court of small causes to invariably return the plaint once a question of title is raised by the tenant.
It is also PG NO 243 true that in a suit instituted by the landlord against his tenant on the basis of contract of tenancy, a question of title could also incidentally be gone into and that any finding recorded by a Judge, Small Causes in this behalf could not be res judicata in a suit based on title.
It cannot, however, be gainsaid that in enacting Section 23 the Legislature must have had in contemplation some cases in which the discretion to return the plaint ought to be exercised in order to do complete justice between the parties.
On the facts of the instant cases we feel that these are such cases in which in order to do complete justice between the parties the plaints ought to have been returned for presentation to a court having jurisdiction to determine the title.
In case the plea set up by the appellants that by the deed dated 8th December, 1966 the benefit arising out of immovable property which itself constituted immovable property was transferred and in pursuance of the information conveyed in this behalf by Mahabir Prasad to them the appellants started paying rent to Smt.
Sulochna Devi and that the said deed could not be unilaterally cancelled, is accepted, it is likely not only to affect the title of Mahabir Prasad to realise rent from the appellants but will also have the effect of snapping even the relationship of landlord and tenant.
between Mahabir Prasad 'and the appellants which could not he revived by the subsequent unilateral cancellation by Mahabir Prasad of the said deed dated 8th December, 1966.
In that event it may not he possible to treat the suits filed by Mahabir Prasad against the appellants to be suits between landlord and tenant simpliciter based on contract of tenancy in which an issue of title was incidentally raised.
If the suits cannot be construed to be one between landlord and tenant they would not be cognizable by a court of small causes and it is for these reasons that we are of the opinion that these are such cases where the plaints ought to have been returned for presentation to appropriate court so that none of the parties was prejudiced.
In the result.
both these appeals are allowed and the judgments and decrees of the courts below are set aside and the Judge, Small Causes is directed to return the plaints of these two cases for presentation to the appropriate court as contemplated by Section 23 of the Act.
The amount of rent which may have been deposited by the appellants in any of the courts below in these suits shall, however.
not be refunded to the appellants and shall be disbursed in accordance with the decision of the appropriate civil court.
In case the dispute about title is settled by the parties amicably, the aforesaid amount of rent can be disbursed in pursuance of such amicable settlement also.
We further direct that the tenant appellants shall, till the dispute PG NO 244 about title is decided or settled, deposit rent of the premises in their tenancy regularly as contemplated by sub section (2) of Section 30 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1977.
In the circumstances of the case, the parties shall bear their own costs throughout.
S.L. Appeals allowed.

summary:
These appeals were preferred by tenants against the judgment of the High Court in civil revisions.
Respondent Mahabir Prasad had executed a registered deed dated 8th December, 1966 with regard to premises in question, giving the benefits arising out of the said properties to his grandsons and their mother Smt.
Sulochana Devi.
He informed the tenants to make payment of rent to Smt.
Sulochana Devi in terms of the said deed.
Later, Mahabir Prasad executed a registered deed of cancellation dated 3rd November, 1970, cancelling the aforesaid deed dated 8th December, 1966 and debarring the grandsons and their mother from the right to realise rent and informed the tenants about the said deed of cancellation.
Subsequently, Mahabir Prasad instituted suits in the Court of the Judge, Small Causes against the appellant tenants for recovery of arrears of rent and their eviction on the ground that in spite of their being informed of the deed of cancellation, they had not paid rent to him.
The appellants contended that the deed dated 8th December, 1966, could not be unilaterally cancelled by Mahabir Prasad, and the rent claimed by him had already been paid by them to Smt.
Sulochana Devi.
The title of Mahabir Prasad to realise rent was disputed by the appellants who had contended that the suit involving a question of title was not cognizable by a Court of Small Causes.
The Judge, Small Causes, decreed the suits.
The appellants filed revisions before the District Judge who dismissed the same.
Further revisions filed by the appellants in the High Court were also dismissed.
The appellants moved this Court for relief by special leave against the Judgments of the High Court.
PG NO 238 PG NO 239 Allowing the appeals, the Court, HELD: The provisions of section 23 of the Provincial Small Cause Courts Act (the Act) were clearly attracted in these cases and the plaints in the cases ought to have been returned for presentation to a Court having jurisdiction to determine the title.
It is true that Section 23 does not make it obligatory on the Court of Small Causes to invariably return the plaint once a question of title is raised by the tenant, and that in a suit instituted by the landlord against his tenant on the basis of contract of tenancy, a question of title could also incidentally be gone into and that any finding recorded by a Judge, Small Causes, in this behalf could not be res judicata in a suit based on title, but it cannot be gainsaid that in enacting section 23 the Legislature must have had in contemplation some cases in which the discretion to return the plaint ought to be exercised in order to do complete justice between the parties.
On facts, these are cases in which~ in order to do ' complete justice between the parties the plaints ought to have been returned for presentation to a court having jurisdiction to determine the title so that none of the parties was prejudiced.
[242E, H, 243A C, F] Judgments and decrees of the courts below were set aside and the Judge, Small Causes was directed to return the plaints of the cases for presentation to the appropriate Court as contemplated by section 23 of the Act.
[243F G]


judgement:
Writ Petition (Crl) No. 163 of 1988.
(Under Article 32 of the Constitution of India).
Petitioner in person.
K. Parsaran, Attorney General, Kuldip Singh, Additional Solicitor General and Ms. A. Subhashini for the Respondents.
The Judgment of the Court was deliver by VENKATARAMIAH, J.
On the basis of the allegations made in the above Writ Petition at the time of the preliminary hearing the Court felt that notice should be issued to the Union of India regarding two matters and accordingly the court made an order that the Union Government shall show PG NO 226 cause (i) why it should not be directed to implement faithfully the decision of this Court in Prem Shankar Shukla vs Delhi Administration, ; as regards the handcuffing of the accused arrested under the provisions of the Criminal Law; and (ii) why it should not be directed to consider the question of issuing a Notification bringing section 30 of the (hereinafter referred to as 'the Act ') into force since already more than 25 years had elapsed from the date of the passing of the Act.
The first question referred to above arose on account of the allegations relating to the alleged handcuffing of an advocate practising in Delhi contrary to law while he was being taken to the Court of the Metropolitan Magistrate at Delhi after he had been arrested on the charge of a criminal offence.
It is urged that the Union Government and the Delhi Administration had not issued necessary instructions to the police authorities with regard to the circumstances in which an accused, arrested in a criminal case, could be handcuffed or fettered in accordance with the judgment of this Court in Prem Shankar Shukla vs Delhi Administration, (supra).
The learned Attorney General of India very fairly conceded that it was for the Union of India to issue necessary instructions in this behalf to all the States Governments and the Governments of Union Territories.
We accordingly direct the Union of India to frame rules or guidelines as regards the circumstances in which handcuffing of the accused should be resorted to in conformity with the judgment of this Court referred to above and to circulate them amongst all the State Governments and the Governments of Union Territories.
This part of the order shall be complied with within three months.
We shall now take up for consideration the second question referred to above.
The received the assent of the President of lndia on the 19th of May, 1961.
Sub section (3) of section 1 of the Act provides that it shall in relation to the territories other than those referred to in sub section (4) come into force as the Central Government may by notification in the Official Gazette appoint and different dates may be appointed for different provisions of the Act.
Chapters I, II and VII of the Act were brought into force on 16.8.1961, Chapter III and section 50(2) on 1.12.1961, section 50(1) on 15.12.1961, sections 51 and 52 on 24.1.1962, section 46 on 29.3.1962, section 32 and Chapter VI (except sections 50(1) and (2), 51, 52 and 46 which had already come into force) on 4.1.1963, Chapter V on 1.9.1963 and sections 29, 31, 33 and 34 of Chapter IV of the Act on 1.6.1969.
Section 30 of the Act, with which we are concerned, has not yet been brought into force.
Section 30 of the Act reads thus: PG NO 227 "30.
Right of advocates to practise Subject to the provisions of this Act, every Advocate whose name is entered in the State roll shall be entitled as of right to practise throughout the territories to which this Act extends (i) in all courts including the Supreme Court, (ii) before any tribunal or person legally authorised to take evidence; and (iii) before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practise.
" When section 30 of the Act is brought into force every advocate whose name is entered in the State roll will be entitled as of right to practise throughout the territories to which the Act extends, before the Courts, Tribunals and other authorities or persons referred to therein.
Even today there are laws in force in the country which impose restrictions on the right of an advocate to appear before certain Courts, Tribunals and authorities.
Section 36(4) of the provides that in any proceeding before a Labour Court, Tribunal or National Tribunal a party to a dispute may be represented by a legal practitioner with the consent of the other parties to the proceeding and with the leave of the Labour Court, Tribunal or National Tribunal, as the case may be.
Section 13 of the Family Courts Act, 1984 provides that no party to a suit or proceeding before a Family Court shall be entitled, as of right, to be represented by a legal practitioner.
There is a proviso to the said scction whereunder if the Family Court considers it necessary in the interests of justice it may seek the assistance of a legal expert as amicus curiae.
There are certain land tribunals constituted under some of the Acts which are in force in certain States before which advocates cannot appear at all.
In many of the cases which come up before the Courts or Tribunals before which advocates cannot appear as of right complicated questions of law affecting the rights of individuals arise for consideration and they need the assistance of advocates.
We have travelled a long distance from the days when it was considered that the appearance of a lawyer on one side would adversely affect the interests of the parties on the other side.
The Legal Aid and Advice Boards, which are functioning in different States, can now be approached by people PG NO 228 belonging to weaker sections, such as, Scheduled Castes, Scheduled Tribes, women, labourers etc.
for legal assistance and for providing the services of competent lawyers to appear on their behalf before the Courts and Tribunals in which they have cases.
In these circumstances prima facie there appears to be now no justification for not bringing into force section 30 of the Act.
It is no doubt true that the Central Government has been given the power by Parliament to appoint the date on which any of the provisions of the Act shall come into force by sub section (3) of section 1 of the Act and the said provision does not lay down any objective standards for the determination of the date on which any of the specific provisions of the Act should be brought into force.
The question for consideration is whether this Court can issue a writ in the nature of mandamus to the Central Government to bring section 30 of the Act into force.
Dealing with a similar question a Constitution Bench of this Court in A.K. Roy, etc.
vs Union of India & Another, ; has taken the view that a writ in the nature of mandamus directing the Central Government to bring a statute or a provision in a statute into force in exercise of powers conferred by Parliament in that statute cannot be issued.
Chandrachud, C.J., who spoke for the majority of the Constitution Bench has observed at pages 314 to 316 of the Report thus: "But we find ourselves unable to intervene in a matter of this nature by issuing a mandamus to the Central Government obligating it to bring the provisions of section 3 into force.
The Parliament having left to the unfettered judgment of the Central Government the question as regards the time for bringing the provisions of the 44th Amendment into force, it is not for the Court to compel the Government to do that which, according to the mandate of the Parliament, lies in its discretion to do when it considers it opportune to do it.
The executive is responsible to the Parliament and if the Parliament considers that the executive has betrayed its trust by not bringing any provision of the Amendment into force, it can censure the executive.
It would be quite anomalous that the inaction of the executive should have the approval of the Parliament and yet we should show our disapproval of it by issuing a mandamus . . . .
But, the Parliament has left the matter to the judgment of the Central Government without PG NO 229 prescribing any objective norms.
That makes it difficult for us to substitute our own judgment for that of the Government on the question whether section 3 of the Amendment Act should be brought into force . .
It is for these reasons that we are unable to accept the submission that by issuing a mandamus, the Central Government must be compelled to bring the provisions of section 3 of the 44th Amendment into force . .
If only the Parliament were to lay down an objective standard to guide and control the discretion of the Central Government in the matter of bringing the various provisions of the Act into force, it would have been possible to compel the Central Government by an appropriate writ to discharge the function assigned to it by the Parliament.
" The effect of the above observations of the Constitution Bench is that it is not open to this Court to issue a writ in the nature of mandamus to the Central Government to bring a statute or a statutory provision into force when according to the said statute the date on which it should be brought into force is left to the discretion of the Central Government.
As long as the majority view expressed in the above decision holds the field it is not open to this Court to issue a writ in the nature of mandamus directing the Central Government to bring section 30 of the Act into force.
But, we are of the view that this decision does not come in the way of this Court issuing a writ in the nature of mandamus to the Central Government to consider whether the time for bringing section 30 of the Act into force has arrived or not.
Every discretionary power vested in the Executive should be exercised in a just, reasonable and fair way.
That is the essence of the rule of law.
The Act was passed in 1961 and nearly 27 years have elapsed since it received the assent of the President of India.
In several conferences and meetings of lawyers resolutions have been passed in the past requesting the Central Government to bring into force section 30 of the Act.
It is not clear whether the Central Government has applied its mind at all to the question whether section 30 of the Act should be brought into force.
In these circumstances, we are of the view that the Central Government should be directed to consider within a reasonable time the question whether it should bring section 30 of the Act into force of not.
If on such consideration the Central Government feels that the prevailing circumstances are such that section 30 of the Act should not be brought into force immediately it is a different matter.
But it cannot be allowed to leave the matter to lie over without applying its mind to the said PG NO 230 question.
Even though the power under section 30 of the Act is discretionary, the Central Government should be called upon in this case to consider the question whether it should exercise the discretion one way or the other having regard to the fact that more than a quarter of century has elapsed from the date on which the Act received the assent of the President of India.
The learned Attorney General of India did not seriously dispute the jurisdiction of this Court to issue the writ in the manner indicated above.
We, therefore, issue a writ in the nature of mandamus to the Central Government to consider within a period of six months whether section 30 of the Act should be brought into force or not.
The Writ Petition is accordingly disposed of.
N.P.V. Petition disposed of.

summary:
In the writ petition filed before this Court regarding alleged handcuffing of a practising advocate, contrary to law, while he was being taken to the court after he had been arrested on the charge of a criminal offence, it was alleged that the Union Government and the Delhi Administration had not issued necessary instructions to the police authorities with regard to the circumstances in which an accused, arrested in a criminal case, could be handcuffed or fettered in accordance with the judgment of this Court in Prem Kumar Shukla vs Delhi Administration, The question whether this Court can issue a writ for bringing into force section 30 of the , providing the right to every advocate, whose name was entered in the State roll to practice throughout the territories to which the Act extended before the Courts, Tribunals and other authorities or persons referred to in the Scction, in view of section 3(1) of the Act empowering Central Government to decide the dates on which various provisions of the Act, including section 3. should be brought into force, also came up for consideration.
On behalf of the respondents, it was submitted that it was for the Union of India to issue necessary instructions regarding handcuffing of an accused to all the State Governments and the Governments of Union Territories in accordance with the judgment in P.K. Shukla 's case, and that this Court had jurisdiction to issue a writ directing the Central Government to consider the question of bringing into force section 30 of the .
PG NO 223 PG NO 224 Disposing of the writ petition, HELD: 1.1 It is not open to this Court to issue a writ in the nature of mandamus to the Central Government to bring a statute or a statutory provision into force when according to the said statute the date on which it should be brought into force is left to the discretion of the Central Government.
[229D] A. K. Roy, etc.
vs Union of India and Another, ; , followed.
However, this Court is of the view that this cannot come in the way of this Court issuing a writ in the nature of mandamus to the Central Government to consider whether the time for bringing section 30 of the into force has arrived or not.
[229E] 1.2 Every discretionary power vested in the Executive should be exercised in a just, reasonable and fair way.
That is the essence of the rule of law.
[229F] In the instant case, the Act was passed in 1961 and nearly 27 years have elapsed since it received the assent of the President of India.
In several conferences and meetings of lawyers resolutions have been passed in the past requesting the Central Government to bring into force section 30 of the Act.
It is not clear whether Central Government has applied its mind at all to the question whether section 30 of the Act should be brought into force.
[229F G] Even today there are laws in force in the country which impose restrictions on the fight of an advocate to appear before certain courts, tribunals and authorities.
ln many of the cases which come up before the Courts or Tribunals before which advocates cannot appear, as of right, questions of law affecting the rights of individuals arise for consideration and they need the assistance of advocates.
We have travelled a long distance from the days when it was considered that the appearance of a lawyer on one side would adversely affect the interests of the parties on the other side.
The legal Aid and Advice Boards, which are functioning in different States, can now be approached by people belonging to weaker sections, such as, Scheduled Castes, Scheduled Tribes, women, labourers etc.
for legal assistance and for providing the services of competent lawyers to PG NO 225 appear on their behalf before the Courts and Tribunals in which they have cases.
In these circumstances prima facie there is no justification for not bringing into force section 30 of the Act.
[227D, G H, 228A B] 1.3 Even though the power under section 30 of the is discretionary, this Court is of view that the Central Government should be called upon to consider within a reasonable time the question whether it should exercise the discretion one way or the other having regard to the fact that more than a quarter of century has elapsed from the date on which the Act received the assent of the President of India.
[230A] A writ in the nature of mandamus will issue to the Central Government to consider within a period of six months whether section 30 of the Act should be brought into force or not.
The Union of India is directed to frame rules or guidelines as regards the circumstances in which handcuffing of the accused should be resorted to in conformity with the judgment of this Court in Prem Shankar Shukla vs Delhi Administration, and to circulate them amongst all the State Governments and the Government of Union Territories within three months.[226E] Prem Shankar Shukla vs Delhi Administration, ; , referred to.