judgement:
Appeals Nos. 2455 and 2540 of 1966.
Appeals by special leave from the judgment and order dated June 28, 1962 of the Madras High Court in Writ Appeal No. 113 of 1959 and Writ Petition No. 254 of 1960.
S.V. Gupte, M. Ranganatha Sastri, M.S.K. Sastri and M.S. Narasimhan, for the appellant (in both the appeals).
M.K. Ramamurthi, Shyamala Pappu and Vineet Kumar, for respondent No. 1 (in both the appeals).
K.N. Mudaliyar, Advocate General for the State of Madras and A.V. Rangam, for respondents Nos. 2 and 3 (in both the appeals).
The Judgment of the Court was delivered by Bhargava, J.
The appellant, the South Arcot Electricity Distribution Company Ltd. (hereinafter referred to as "the Company"), was carrying on the business of distribution of electricity as a Licensee under the Government in South Arcot District in the State of Madras.
The Government of Madras, in exercise of the powers conferred on it by the Madras Electricity Supply Undertakings (Acquisition) Act.
No. 29 of 1954 (hereinafter referred to as "the Madras Act"), took over the appellant 's undertaking with effect from 1st of June, 1957.
The Company chose to be paid compensation on Basis A laid down in section 5 (1 ) of the Madras Act, with the result that all the property belonging to the Company, including the fixed assets, cash, security investments, and the like and all rights, liabilities and obligations as on the date of vesting vested or must be deemed to have vested in the Madras Government.
Under Rule 17 of the Madras Electricity Undertakings (Acquisition) Rules, 1954 (hereinafter referred to as "the Rules") framed by the Governor of Madras under the provisions of the Madras Act, all the staff of the Company employed immediately before the vesting date were retained by the Government and were continued provisionally for a period of 12 months from the date of vesting on the same terms and conditions of service as were applicable to them under the Company immediately before the date of vesting.
In respect of future employment of the workmen by the Madras Government, their conditions of service came to be regulated by section 15 of the Madras Act and the various conditions laid down in r. 17 of the Rules.
Subsequently, the employees of the Company numbering 352 claimed that they had become entitled to retrenchment compensation under section 25F read with section 25FF of the No. 14 of 1947 (hereinafter referred to as "the Act") and filed applications for computation of the cora 905 pensation payable to them under section 33C(2) of the Act before the Labour Court.
All these 352 applications were based on an identical claim and were heard by the Labour Court together.
Initially, the Company was the sole opposite party in these applications, but, later on, the State of Madras was impleaded as another opposite party.
In addition, the Electricity Board of Madras, to which the State of Madras had transferred the undertaking, was also impleaded as an opposite party.
The Company contested these applications on various grounds, inter alia pleading that there had been no break in the service of the employees.
or any change in the conditions of their service to their detriment, so that the employees were not entitled to claim any compensation. ' Another plea taken was that the applications were not maintainable under section 33C(2) of the Act, because the Labour Court was not competent to decide the question whether the workmen were entitled to retrenchment compensation when this claim of theirs was.
not accepted by the Company.
It was, in addition, pleaded that, even if the workmen were entitled to any compensation, the liability to pay that compensation Was not that of the.
Company, but of the State of Madras or the Electricity Board in view of the provisions of the Madras Act, under which all the liabilities of the Company had vested first in the State of Madras and subsequently in the Electricity Board.
The Electricity Board also contended that no liability for payment of retrenchment compensation had arisen and that, in any case, there was no obligation on the part of the Board to pay retrenchment compensation.
The Board supported the Company in the plea that the services of the employees had not been interrupted and that the terms and conditions of service were in no way less favourable after the vesting of the undertaking.
in the State of Madras or the Electricity Board.
It was further pleaded that a dispute had arisen between the Company and the GOvernment under section 13(1)(b) of the ' Madras Act as to which of the two was liable to pay retrenchment compensation if at all, and no relief could be given to the employees by the Labour Court until the said dispute was decided in accordance with the provisions of the Madras Act by arbitration.
On these pleadings, three preliminary objections were raised, viz., (1) that the notice wages and retrenchment compensation claimed in the applications were not benefits due to the employees within the meaning of section 33C(2) of the Act; (2) that, as retrenchment came under Chapter VA of the Act, it could only be decided by an Industrial Tribunal and not by the Labour Court; and (3) that, having regard to the fact that complicated questions of law and fact as to the liability of the Company or the Government or the Board had to be decided, it was not competent for the Labour Court to decide the matter summarily in proceedings under section 33C(2) of the Act and that the dispute must be decided by a civil court.
The Labour Court, by an order dated 3rd October, 1958, 906 over ruled these preliminary objections and directed that the applications be listed for being tried on merits.
The Company, thereupon, filed writ petitions under Article 226 of the Constitution in the High Court of Madras numbered as 820 and 842 to 1847 of 1958 seeking directions of the Court restraining the Labour Court from inquiring into these applications on merits on the ground that the Labour Court had no jurisdiction to entertain the applications from the employees.
A learned single Judge of the Court dismissed the writ petitions holding that the Labour Court had jurisdiction to decide the applications and that the controversy between the Company on the one side, and the Government of Madras and the Electricity Board on the other side, as to the party which had to bear the liability will have to be disposed of in proceedings taken separately from these proceedings under the Act.
Aggrieved by this decision, the Company preferred Writ Appeal No. 113 of 1959 in the Appellate Side of the High Court.
In the meantime, the Labour Court took up the applications for decision on merits and, since common questions were involved in all the applications, one of these applications C.P. No. 81 of 1957 was taken up as a test case for disposal by the Labour Court by consent of all parties concerned.
The Labour Court, by its order dated 4th February, 1960, held that the workmen concerned were entitled to retrenchment compensation in accordance with section 25FF of the Act, computed the amount due, and passed an order directing the Company to pay the amount.
The Company, thereupon, filed Writ Petition No. 254 of 1960 in the High Court of Madras for quashing this order of the Labour Court.
Writ Appeal No. 113 of 1959 and this Writ Petition No. 254 of 1960 were heard together by a Division Bench of the High Court which decided them by a common judgment and dismissed the Writ Appeal as well as the Writ Petition.
The Company then sought leave to appeal to this Court under article 133 of the Constitution.
The High Court granted a certificate in respect of its judgment in Writ Petition No. 254 of 1960, while rejecting the application for grant of certificate in respect of the same judgment insofar as it had disposed of Writ Appeal No. 1134 1959.
Civil Appeal No. 2540 of 1966 now before us has been filed by the Company in pursuance of that certificate granted by the High Court.
The Company further obtained from this Court special leave to appeal against the same judgment insofar as it governed Writ Appeal No. 113 of 1959 and in pursuance of that special leave granted by this Court, Civil Appeal No. 2455 of 1966 has been filed.
These appeals have been heard by us together and are now to be disposed of by this common judgment.
907 Mr. S.V. Gupte, learned counsel appearing for the Company raised the following three points in his arguments in these two appeals : (1) That the Labour Court as well as the High Court were not right in holding that the conditions laid down in the proviso to section 25FF of the Act were not satisfied and in thus accepting the claim of the workmen to compensation under the principal clause of that section.
(2) That the applications under section 33C(2) of the Act were not maintainable, because the question whether the workmen were entitled to retrenchment compensation was outside the jurisdiction of the Labour Court which was not competent to decide such a disputed question.
(3) That the High Court was wrong in holding that the question whether the liability to pay the retrenchment compensation fell on the Company or the State of Madras or the Electricity Board could not be decided by the Labour Court under section 33C(2) of the Act and had to be determined in other appropriate proceedings.
Section 25FF of the Act is as.
follows : "Where the ownership or management of an undertaking is transferred, whether by agreement or by operation of law, from the employer in relation to that undertaking to a new employer, every workman who has been in continuous service for not less than one year in that undertaking immediately before such transfer shall be entitled to notice and compensation in accordance with the provisions of section 25Fi as if the workman had been retrenched: Provided that nothing in this section shall apply to a workman in any case where there has.been a change of employers by reason of the transfer, if (a) the service of the workman has not been interrupted by such transfer; (b) the terms and conditions of service applicable to the workman after such transfer are not in any way less favourable to the workman than those applicable to him immediately before the transfer; and (c) the new employer is, under the terms of such transfer or ' otherwise, legally liable to pay to the workman, in the event of his retrenchment, compensation on the basis that his service has been continuous and has not been interrupted by the transfer.
" 908 The principal clause of this section clearly confers a right on every workman, who has been employed continuously for not less than one year in any undertaking, to receive retrenchment compensation in accordance with the provisions of section 25F of the Act as if the workman had been retrenched whenever the ownership or management of the undertaking is transferred, whether by agreement or by operation of law.
Consequently, in the present case, the employees, who presented the applications under section 33C(2) of the Act, clearly became entitled to receive retrenchment compensation in accordance with section 25F of the Act when, under the Madras Act, this undertaking stood transferred to the State Government from the Company.
This would be the legal right vesting in the workmen if the proviso does not apply to their cases, and it accrues irrespective of the fact that the workmen had not actually been retrenched.
The right under this principal clause is conferred on the basis of the legal fiction that the workmen are to be deemed to have been retrenched unless their services are continued in accordance with the conditions laid down in the proviso.
The only question that falls for determination in respect of the first point raised by Mr. Gupte thus, is whether the right which accrued to the workmen under the principal clause was defeated because of the compliance of the conditions laid down in the proviso.
The proviso lays down three conditions in clauses (a); Co) and (c) each one of which has to be satisfied before it can be held that the right conferred by the principal clause does not accrue to the workman.
In the present case, there is no doubt that the services of the workmen had not been interrupted by the transfer, so that condition (a) was clearly satisfied.
It has, however, been found by the High Court that conditions (b) and (c) of the proviso had not been satisfied.
In our opinion, it is unnecessary to go into the question whether condition (c) has or has not been satisfied, because it is very clear that condition Co) of the proviso is certainly not satisfied.
Under clause Co), the requirement is that the terms and conditions of service applicable to the workman after the transfer must not in any way be less favourable than those applicable to him immediately before the transfer.
On examination of the Madras Act and the Rules, it is manifest that the terms and conditions of service of the workmen have not remained as favourable under the State Government or the Electricity Board as they were when the workmen were employed by the Company.
Under clause (1) of section 15 of the Madras Act, the State Government is given the power to terminate the services of any workman after giving him three calendar months ' notice in writing or paying him three months ' pay in lieu of such notice.
It has not been shown to us on behalf of the Company that there was any such liability to termination of services of these workmen while they were employ 909 ed by the Company.
In the absence of any special conditions of service, the rights of the workmen were to be governed by the provisions of the Act under which the only right of the Company to terminate the services of these workmen was by retrenchment after complying with the requirements of section 25F of the Act.
On such termination, each workman was entitled not only to one month 's notice or wages for one month in lieu of notice, but was also entitled to receive, at the time of retrenchment, compensation which was to be equivalent to 15 days ' average pay for every completed year of continuous service or any part thereof in excess of six months.
It does not appear that, if the Government were to terminate the service of the same workman under section 15(1) of the Madras Act, the workman would be entitled to the same compensation which he would have received from the Company if he had been retrenched in accordance with the provisions of section 25F of the Act.
Thus, clause (1 ) of section 15 of the Madras Act itself introduces a condition of service which was less favourable to the workmen than the conditions applicable when they were employed by the Company.
Similarly,, clause (2) of section 15 of the Madras Act lays down the Workmen, whose services are retained by the Government, shall be governed by such rules as the Government may, from time to time, make in regard to them.
It is clear that, in exercise of high power, the Government can make rules altering the terms and conditions of service of the workmen retained by the Government, and this power can be exercised from time to time.
There was no such liability of change of conditions of service of the workmen while they were employed under the Company.
If the Company had desired to alter their conditions of service, the Company would have been required to comply with the provisions of either section 9A of the Act, or section 10 of the Industrial Employment (Standing Orders) Act No. 20 of 1946.
Obviously, the right of the Government of Madras as the new employer under section 15(2) of the Madras Act to change the conditions of service of the workmen from time to time, in its very nature, alters the conditions of service of the workmen to theft disadvantage.
Rule 17 of the Rules further shows that, immediately on the vesting of the undertaking in the State Government, the services of the workmen retained by the Government becomes provisional and the subsequent permanent employment of those workmen in the undertaking is dependent on the conditions laid down in that Rule.
This liability imposed on the workmen is clearly disadvantageous to those workmen who were in the permanent employ of the Company.
The same Rule also shows that the employees would not be entitled to bonus or other concessions not allowed to the servants of the Government, even if the workmen were entitled to bonus and the concessions from the Company.
The workmen also became liable to transfer to any 910 other place or post in the Government Electricity Department depending on exigencies of service.
These are instances of a number of conditions of service which became less favourable to the workmen on their becoming employees of the State Government when the undertaking vested in that Government by transfer from the Company.
In these circumstances, the requirements of the proviso to section 25FF of the Act are obviously not satisfied and that proviso cannot be invoked by the Company for the purpose of defeating the claim made by the workmen under the principal clause of that section.
Under that principal clause, the workmen became entitled to receive retrenchment compensation in accordance with the provisions of section 25F of the Act on the basis of the legal fiction envisaged that those rights would accrue to them as if the workmen had been retrenched.
Labour Court and the High Court were, therefore, right in holding that the workmen were entitled to claim retrenchment compensation in accordance with the provisions of section 25F of the Act because of the right accruing to them under section 25FF of the Act.
In this connection, an additional point urged by Mr. Gupte was that the principal clause of section 25FF of the Act does not lay down which of the two employers mentioned therein is liable to pay the retrenchment compensation and, consequently, where there is a dispute between the two employers, an application for computation of the benefit under section 25FF of the Act cannot be competently entertained and decided by a Labour Court.
It appears to us that the language of that principal clause makes it perfectly clear that, if the right to retrenchment compensation accrues under it, it must be a right to receive that compensation from the previous employer who was the owner up to the date of transfer.
It is implicit in the language of that clause.
The clause lays down that every workman mentioned therein shall be entitled to notice and compensation in accordance with the provisions of section 25F as if the workman had been retrenched.
Obviously, in such a case, the date of the deemed retrenchment would be the date when the ownership or management of the undertaking stands transfered to the new employer.
In the present case, that date would be the 1st of June, 1957, when the undertaking of the Company was taken over by the Government of Madras under the Madras Act.
If the workmen 's services are to be deemed to be retrenched on that very date, it is clear that, for purposes of determining who has retrenched the workmen and who is liable to pay the retrenchment compensation, the workmen could not become the employees of the new employer.
The employment under the new employer could only commence from the time when the ownership or the management of the undertaking vested in the State Government; but, simultaneously with this vesting, the workmen had to be deemed to be retrenched from service.
That 911 retrenchment could, therefore, be deemed to have been made only by the previous employer.
Further, it would be that previous employer who would be competent to give the notice in accordance with the provisions of section 25F of the Act.
The notice of retrenchment, which has to be deemed to have become effective on the date of vesting of the undertaking in the State Government, could not possibly be given by the State Government.
In these circumstances, the conclusion is irresistible that the claim under section 25FF of the Act to compensation accrues to the workman against the previous employer under whom he was employed until the date of transfer.
In the present case, therefore, the right to receive compensation clearly accrued under section 25FF of the Act against the Company and there was, therefore, no difficulty in the Labour Court exercising jurisdiction on that basis.
So far as the second point is concerned, it is fully answered by our decision in Chief Mining Engineer, East India Coal Co. Ltd. vs Rameswar and Ors.(1) where it was held : "It is clear that the right to the benefit which is sought to be computed must be an existing one, that is to say, already adjudicated upon or provided for and must arise in the course of and in relation to the relationship between an industrial workman and his employer. ' ' The view was further clarified and affirmed by this Court in State Bikaner and Jaipur vs
R.L. Khandelwal(2) where the Court took notice of the decisions of this Court in the case cited above and in Punjab National Bank Ltd. vs
K.L. Kharbanda,(a) Central Bank of India vs P.S. Rajagopalan and Others,(4) and Bombay Gas Company Ltd. vs Gopal Bhiva and Others, (5) and held : "These decisions make it clear that a workman cannot put forward a claim in an application under section 33C(2) in respect of a matter which is not based on an existing right and which can be appropriately the subject matter of an industrial dispute only requiring reference under section 10 of the Act.
" In the present case, we have already indicated, when dealing with the first point, that the right, which has been claimed by the various workmen in their applications under section 33C(2) of the Act, is a right which accrued to them under section 25FF of the Act and was an existing right at the time when these applications were (1) [1968] 1 S.C.R. 140.
(2) (3) [1962] Supp. 2 S.C.R. 977.
(4) ; (5) (1964] 3 S.C.R. 709.
S.Sup.
C.I./69 7 912 made.
The Labour Court clearly had jurisdiction to decide whether such a right did or did not exist when dealing with the application under that provision.
The mere denial of that right by the Company could not take away its jurisdiction, so that the order made by the Labour Court was competent.
The third and the last point raised by Mr. Gupte fails and could not be pressed in view of our decision that the right of 'the workmen, which has been adjudicated upon by the Labour Court in the applications under section 33C(2) of the Act, was a right accruing to them against the Company under section 25FF of the Act.
The right having initially accrued under this provision of the law against the Company, the Labour Court was clearly justified in computing the benefit under that right and laying it down that the liability was enforceable against the Company.
The Labour Court was concerned with the right claimed under the Act.
Whether, by virtue of the provisions or the terms of transfer of the undertaking from the Company to the Government, or by virtue of the provisions of the Madras Act, the Company is entitled to claim that this liability should be ultimately met by the State Government was a point which did not affect the right of the workmen to claim their compensation from the Company and the Labour Court was, therefore, not required to go into this question when dealing with applications under section 33C(2) of the Act.
The appeals, consequently, fail and are dismissed with costs payable to workmen only.
One heating fee.
The amount of interest which has accrued on the amount deposited in the Bank will be proportionately payable with the principal to the employees concerned.
G.C. Appeals dismissed.

summary:
The appellant Company was taken over by the Government of Madras in exercise of the powers conferred on it by the Madras Electricity Supply Undertakings (Acquisition) Act 1954.
All the property and assets of the company became vested in the Madras Government.
Under r. 17 of the Madras.
Government Undertakings (Acquisition) Rules, 1954 all the staff of the Company employed immediately before the vesting date were retained by the Government and were continued provisionally for a period of 12 months from the date of vesting on the same terms and conditions of service as were applicable W them under the Company immediately before the date of vesting.
In respect of the future, employment of the workmen by the Madras Government, their conditions of service were to be regulated by section 15 of the Madras Act and ' the various conditions laid down in r. 17 of the Rules.
Subsequently the workmen claimed that they had become entitled to retrenchment compensation under section 25F read with section 25FF of the and filed application for computation of the compensation payable to them under section 33C of the Act, before the Labour Court.
Initially the Company was the only opposite party to the applications but later the State of Madras and the Electricity Board of Madras to which the State had transferred the undertaking, were also made parties.
The Company and the Electricity Board raised certain preliminary objections to the jurisdiction of the Labour Court which did not find favour with that Court.
On merits the Labour Court held that the workmen were entitled to retrenchment compensation under section 25FF and directed the Company to pay the amount.
The High Court upheld the Tribunals orders on merits as well as on the question of jurisdiction.
The Company appealed to this Court.
The submissions on behalf of the appellant were: (i) That the Labour Court as well as the High Court were not right in holding that the conditions laid down in the.
proviso to section 25FF were not satisfied; (ii) that the applications under section 33C(2) of the Act were not maintainable because the question whether the workmen were entitled to retrenchment compensation was outside the jurisdiction of the Labour Court which was not competent to decide such a disputed question; (iii) That the High Court was wrong in holding that the question whether the liability to pay the retrenchment compensation fell on the Company or the State of Madras or the Electricity Board could not be decided by the Labour Court under section 33C(2) of the Act and had to be decided in other appropriate proceedings.
903 HELD: (i) The conditions of service of the workmen under section 15 of the Madras Act and under r. 17 were less favourable than their conditions of service had been under the company.
In the circumstances the requirements of el.
(b) of the proviso to section 25FF were obviously not satisfied and that proviso could not be invoked by the Company for the purpose of defeating the claim made by the workmen under the principal clause of that section.
Under the principal clause the workmen became entitled to receive retrenchment compensation in accordance with section 25F of the Act on She basis of the legal fiction envisaged that those rights would accrue to them as if the workmen had been retrenched.
The Labour Court and the High Court were therefore right in holding that the workmen were entitled to claim retrenchment compensation in accordance with the provisions of section 25F of the Act because of the right accruing to them under section 25FF of the Act.
[910 A C] The employment under the new employer could only commence from the time when the ownership or the management of the undertaking vested in the State Government; but simultaneously with that vesting, the workmen had to be deemed to be retrenched from service.
The retrenchment could, therefore, be deemed to have been made only by the previous employer.
Further, it would be the previous employer who would be competent to give the notice in accordance with the provisions of section 25F of the Act.
In these circumstances the conclusion was irresistible that the claim under section 25FF of the Act to compensation accrues to the workmen against the previous employer under whom he was employed until the date of the transfer.
In the present case therefore the right to receive compensation clearly accrued under section 25FF of the Act against the Company and there was, therefore, no difficulty in the Labour Court exercising jurisdiction on that basis.
[910 H 911 C] (ii) The right which had been claimed by the various workmen in their applications under section 33C(2) of the Act, was a right which accrued to them under section 25FF of the Act and was an existing right at the time.
when these applications were made.
The Labour Court clearly had jurisdiction to decide whether such a right did or did not exist when dealing with the application under that provision.
The mere denial of that right by the company cold not take away its jurisdiction, so that the order made by the Labour Court was competent.
[911 H 912 A] Chief Mining Engineer, East India Coal Co. Ltd. vs Ratneswar & Ors.
[1968] 1 S.C.R. 140, applied.
State of Bikaner and Jaipur vs
R.L. Khandelwal, , Punjab National Bank Ltd. vs
K.L. Kharbanda, [1962] Supp.
2 S.C.R. 977, Central Bank of India vs
P.S. Rajagopalan & Ors., ; and Bombay Gas Company Ltd. vs Gopal Bhiva and Ors. ; , referred to.
(iii) The Labour Court was concerned with the right claimed under the Act.
Whether by virtue of the provisions or the terms of transfer of the undertaking from the company to the Government or by virtue of the provisions of the Madras Act, the company was entitled to claim that this liability should be ultimately met by the State Government was a point which did not affect the right of the workmen to claim their compensation from the Company and the Labour Court was therefore: not required to go into the question when dealing with application under section 33C(2) of the Act: [912 'C E]


judgement:
Appeal No. 1110 of 1965.
Appeal from the judgment and decree dated July 6, 1959 of the Patna High Court in First Appeal No. 235 of 1951.
Sarjoo Prasad and B.P. Jha, for the appellants.
C.B. Agarwala, P.K. Chatterjee and R.B. Datar, for the respondents (in Excepting respondents Nos.
15(b) to 15(d).
The Judgment of the Court was delivered by Bachawat, J.
This appeal arises out of Title Suit No. 12/9 of 1946 instituted in the Court of the First Additional Subordinate Judge, Darbhanga.
The plaintiffs claimed declaration of their title and possession in respect of 70 bighas of land in plot No. 1083 in village Siripur Majrahia.
They obtained settlements of the lands from the deity Shri Radhakrishan Jee Baldeojee.
The deity was the 16 annas proprietor of village Siripur Majrahia Pergana Jankhalpur, Tauzi No. 2794.
The river Karey flows between this village and the villages of Kazi Dumra and Shankarpur.
The contesting defendants were the landlords and tenants of villages Kazi Dumra and Shankarpur.
The deity was defendant No. 18 and was represented 'by one Tantreshwar Singh.
The plaintiffs claimed that in consequence of the changes in the channel of the river Karey the lands in suit were lost to villages Kazi Dumra and Shankarpur by diluvion and were annexed to plot No. 1083 in village Siripur Majrahia by gradual increment and accretioan.
The trial Court dismissed the suit.
It held that (1) the suit lands did not accrete to plots Nos. 1083 and 1089 in village Sirlput Majrahia due to slow, gradual and imperceptible changes in the channel of the river Karey, (2) there was no custom in the village by which the disputed lands became the property of the owner of those plots, (3) the deity Radha Krishanji Baldeoji or the owner of village Siripur Majrahia did not obtain possession of the lands in the manner ,alleged in the plaint, (4) the lands originally belonged to the proprietors of villages Kazi Dumra and Shankarpur and continued to be their property and (5 ) the plaintiffs failed to prove their title and possession in respect of the suit lands within 12 years before the date of the institution of the suit.
The plaintiffs filed F.A. No. 291 of 1951 in the High Court of Patna against the decree passed by the Trial Court.
The deity Shri Radha Krishanji Baldeoji, the original defendant No. 18 was 973 impleaded as respondent No. 23 in the appeal.
By an order dated January 24, 1952 the High Court appointed the Deputy Registrar as the guardian of the deity.
On February 18,.1952 the High Court passed the following order : "Two week 's further time is allowed to deposit D.R. guardian 's cost for respondent No. 23 (deity) failing which this appeal shall stand dismissed against him without further reference to a Bench." This peremptory order was not complied with and on the expiry of the two weeks the appeal stood dismissed 'against the deity.
At the hearing of the appeal the contesting defendants urged that the entire appeal became incompetent in view of the dismissal of the appeal against the deity.
The High Court accepted this contention and dismissed the appeal in its entirety.
The High Court held that there was a clear issue between defendant No. 18 and the contesting defendants as to whether the lands formed part of the village Siripur Majrahia, that the issue stood concluded against defendant No. 18 by the decree of the Trial Court, that the appeal had abated against defendant No. 18 and that as success in the appeal might lead to conflicting and inconsistent decrees, the appeal against all the defendants became incompetent.
The present 'appeal has been filed by the plaintiffs after obtaining a certificate from the High Court.
Clearly, the High Court was in error in holding that the appeal had abated either wholly or in part.
None of the parties to the appeal had died and there was no question of the abatement of the appeal.
Mr. C.B. Agarwala relying on the case of Munni Bibi vs Trilokinath(1) submitted that the decision of the Trial Court on the question whether the suit lands appertained to village Siripur Majrahia operated as res judicata between the deity and the contesting co defendants, that the appellate court could not record an inconsistent finding that the suit lands appertained to village Siripur Majrahia, and that in the circumstances, the entire appeal before the High Court became incompetent.
We are unable to accept these contentions.
The plaintiffs claiming as tenants of the deity sued the contesting defendants for declaration of their title and possession in respect of the suit lands on the allegation that the lands appertained to village Siripur Majrahia of which the deity was the proprietor.
The deity was not a necessary party to the suit.
It was joined as a defendant, but no relief was claimed against it.
The suit was dismissed on a finding that the suit lands did not appertained to village Siripur Majrahi 'a.
The plaintiffs filed an appeal against the decree impleading the deity as one of the respondents.
The appeal was dismissed against the deity for non(1) L.R. 58 I.A. 158.
974 payment of costs of its guardian ad litem.
The deity was not a necessary party to the appeal.
The plaintiffs were entitled to prosecute their appeal against the contesting defendants in the absence of the deity.
As soon as the appeal was filed by the plaintiffs in the High Court the decision of the Trial Court lost its character of finality and the question whether the suit lands appertained to village Siripur Majrahia became once again res sub judice.
The case of Munni Bibi vs Trilokinath(1) shows that a decision operates as res ludicata between co defendants if (1) there is a conflict of interest between them; (2) it is necessary to decide that conflict in order to give the plaintiffs the reliefs which they claim and (3 ) the question between the co defendants is finally decided.
In the present case, the third condition was not satisfied.
The question whether the suit lands appertain to Siripur Majrahia was not finally decided between the deity and the co defendants.
On the filing of the appeal by the plaintiffs, the question became once more subject of judicial inquiry between the deity and the contesting defendants.
Before the 'appeal was finally heard and decided, it was dismissed as against the deity for non payment of its guardian 's costs.
The appellate court did not give any decision on the merits of the case in the presence of the deity.
There is no final decision against the deity on the question of the title to the suit lands.
The decision of the 'appellate court against the contesting defendants will not lead to conflicting and inconsistent decrees.
The High Court was in error in holding that the appeal against the contesting defendants became incompetent.
In the circumstances the High Court ought to have decided the appeal before it on the merits.
Counsel for the parties agreed that the decision of the present appeal on the merits would abide by the decision in C.A. No. 140 of 1966 arising out of T.S. No. 29/11 of 1946.
That suit and T.S. No. 12/9 of 1946 out of which the present appeal arises were heard together by the Trial Court and disposed of by a common judgment.
In C.A. No. 140 of 1966 we have held that the disputed lands appertained originally to village Kazi Dumra and Shankarpur, that due to the recession of the river Karey the lands reformed in situ and that the property in the lands continued to remain with the proprietors of the lands in villages Kazi Dumra and Shankarpur.
The plaintiffs failed to prove that the deity Shri Radha Krishnaji Baldeoji came into possession of the disputed land as alleged in the plaint.
There was no issue on the question whether the deity had acquired title to the suit lands by adverse possession.
The plea of acquisition of title by adverse possession cannot be raised for the first time at the appellate stage.
The plaintiffs failed to establish acquisition of title of the deity to any portion cf the suit lands by adverse (1) L.R. 58 I.A. 158.
975 possession.
It follows that there was no merit in F.A. No. 235 of 1951.
Although the High Court did not decide this appeal on the merits, it is not necessary to remand the matter to the High Court.
Having regard to our findings in C.A. No. 140 of 1966, T.S. No. 12/9 of 1946 also must be dismissed.
In the result, the appeal is dismissed.
There will be no order to costs.
Y.P. Appeal dismissed.

dataset_name: IN-Abs

summary:
The plaintiffs (appellants herein) obtained settlements of certain land owned by a deity in village Siripur Majrahia in Bihar.
The contesting defendants (respondents herein) owned lands in the villages of Kazi Dumra and Shankarpur which were separated from Siripur Majrahia by a river.
The plaintiffs claimed that in consequence of the changes in the channel of the aforesaid river the lands in suit were lost to villages Kazi Dumra and Shankarpur by diluvion and were annexed to their land in village Siripur Majrahia by gradual increment and accretion.
The deity was also made defendant No. 18 in the suit although no relief was claimed against it.
The trial court dismissed the suit and the plaintiffs appealed to High Court, again impleading the deity as a respondent.
They, however, failed to deposit the cost of the guardian ad litem of the deity appointed by the High Court and the Court thereupon dismissed the appeal as against the deity.
The contesting defendants urged at the hearing that the entire appeal had become incompetent in view of the dismissal of the appeal against the deity.
Accepting the contention the High Court dismissed the appeal.
It held inter alia, that the appeal had abated against the deity.
The plaintiffs filed appeal, with certificate, in this Court.
On behalf of the respondents reliance was placed on Muni Bibi vs Trilokinath and it was urged that the decision of the trial court on the question whether the suit lands appertained to village Siripur Majrahia operated as res judicata between the deity and the contesting co defendants, that the appellate court could not record an inconsistent finding that the suit lands appertained.
to village Siripur Majrahia and that in the circumstances, the entire appeal before the High Court had become incompetent.
HELD: (i) The High Court was in error in holding that the appeal had abated either wholly or in part.
None of the parties to the appeal had died and there was no question of abatement of the appeal.
[973 E] (ii) The deity was not a necessary party to the appeal and the plaintiffs were entitled to prosecute: their appeal against the contesting defendants in the absence of the deity.
[973 G H; 974 A B] (iii) The case of Muni Bibi vs Trilokinath shows that a decision operates as res judicata between co defendants if (1) there is a conflict of interest between them; (2) it is necessary to decide that conflict in order to give the plaintiffs the reliefs which they claim and (3) the question between the co defendants is finally decided.
In the present case the third condition was not satisfied.
The question whether the suit lands appertained to Siripur Majrahia was not finally decided between the deity and the co defendants.
On the filing of the appeal by the plaintiffs, the question became once more the subject of judicial enquiry between the deity and the contesting defendants.
[974 B D] Muni Bibi vs Trilokinath, L.R. 58 I.A. 158, referred to.
972 (iv) Before the appeal was finally heard and decided, it was dismissed as against the deity for non payment of its guardian 's costs.
The appellate court did not give any decision on the merits of the case in the presence of the deity.
There was no final decision against the deity on the question of title to the suit lands.
The decision of the appellate court against the contesting defendants would not lead to conflicting and inconsistant decrees.
The High Court was in error in holding that the appeal against the contesting defendants became incompetent.
[974 D E]


judgement:
Appeal No. 61 of 1968.
Appeal under section 116 A of the Representation of the People Act, 1951 from the judgment and order dated August 21, 1967 of the Andhra Pradesh High Court in Election Petition No. 3 of 1967.
993 P. Ram Reddy and A.V.V. Nair, for the appellant.
R.K. Garg, D.P. Singh, S.C. Agarwal and Asif Ansari, for respondent No. 1.
The Judgment of the Court was delivered by Hidayatullah, C.J.
This appeal arises from the decision of the Andhra Pradesh High Court dated August 21, 1967 by which an election petition filed by the present appellant Goka Ramalingam to question the election of the answering respondent Boddu Abraham was dismissed.
The matter concerns the Cheriyal (Scheduled Caste) constituency in the election to the Andhra Pradesh Legislative Assembly held in February, 1967.
Three candidates had offered themselves for election.
Two of them we have already named, the third is one Devadanam.
The answering respondent obtained 15000 and odd, the appellant election petitioner 12000 and odd and Devadanam 7000 and odd votes.
The election petition was based only on one issue, namely, that the respondents who had stood for a scheduled caste Reserved seat had "converted themselves into Christianity long time back and they continue to profess the said religion Christianity even today.
" Under the Constitution (Scheduled Castes) Order, 1950, it is provided as follows: "(2) Subject to the provisions of this Order, the castes, races or tribes or parts of, or groups within, castes or tribes, specified in Parts I to XIII of the Schedule to this Order shall, in relation to the States to which those parts respectively relate, be deemed to be Scheduled Castes so far as regards members thereof resident in the localities specified in relation to them in those Pans of that Schedule.
(3) Notwithstanding anything contained ' in paragraph 2, no person who professes a religion different from the Hindu or the Sikh religion shall be deemed to be a member of a Scheduled Caste.
" It would therefore appear that if the answering respondent and Devadanam were not members of a named scheduled caste (in this case the Madiga caste) they were not eligible to stand for election for the Reserved Seat.
The case as put forward in the High Court was that these two candidates had themselves got converted into Christianity a long time ago and that they did not therefore profess Hindu religion although in the plea it is stated affirmatively that they profess Christian religion.
The case went to trial on this plea and the issues framed were as follows: "1.
Whether the respondents who admittedly once belonged to 'Madiga ' community embraced Christianity 994 and professed the religion of Christianity at the time of election and hence respondent No. 1 was not qualified to be chosen to fill the seat in the Assembly of the State as per section 5(a) read with Rule (3) of the Consittution (Scheduled Castes) Order, 1950 (C.O. 19 dated 10 8 59) ? 2.
Whether the nomination papers of both the respondents were improperly received and as a result thereof the result of the election has been materially affected? 3.
What is the effect of admission of respondent 2 in his W.S. as to his status on this election petition?" Evidence was led to prove that the answering respondent was converted to Christianity.
This evidence was not accepted by the High Court.
As regards the other respondent, he went out of the fight admitting that he was a Christian and nothing more need be said of him.
It appears that while this case was going on, the learned Judge was informed that a Register of all converted Christians was maintained by the church.
He accordingly sent for the Register and marked it as exhibit C 1.
In the judgment the learned Judge gives his order pertaining to this action.
It reads as follows: "I may mention here that since it came out in the evidence of R.W. 2 that the names of all converts to Christianity within the jurisdiction of Hanumakonda Baptist Mission would be entered in the General Record of the Field Association, Hanumakonda, and that register was flied as an exhibit in a suit pending in the District Court at Warangal, I summoned it and marked it as exhibit C 1.
I gave opportunity for the lawyers appearing on both sides to inspect the register and make their submissions.
The entries relating to Dharmasangaram village are to be found in pages 50 to 52 and 182.
It is true that the name of the 1st respondent is not found in this Record; but since this register does not appear to be an exhaustive and complete record of all the Christians in that area, I do not propose to rely on the entries in this register for any purpose." The Register was inspected by the parties.
They went into it with a view to finding out whether the answering respondent and his wife Chinna Mariamma had been converted or not.
There was no entry showing that they had been so converted.
It appears, however, that the Register did contain two entries show 995 ing the conversion of Boddu Kumaraiah and China Buchamma who are now said to be the father and mother of answering respondent.
An affidavit has also been filed from the Pastor of the Church in which it is stated that these entries refer to the parents of the answering respondent.
Even though the Register was in court and was open to inspection of the parties, care was not taken to discover these two names, with the result that the case was fought on the original plea and issue that the answering respondent was converted to Christianity.
That apparently was not a fact, because if he was born of Christian parents he did not need conversion.
The fact, however, is only alleged now before us and has not been subjected to proof.
The question therefore is whether in view of this fresh evidence, we should allow this appeal.
On a proper consideration of the entire matter we are of opinion that we cannot.
An application was made to us asking for amendment of the plea of conversion of the answering respondent into one of conversion of his parents to Christianity.
We have been unable to allow that petition, because it changes the nature of the case requiring fresh evidence to be taken and is filed also beyond the period of limitation prescribed for filing of election petitions.
That it does change the entire nature of the case is obvious, because instead of the plea that the answering respondent was converted to Christianity, it is now sought to be substituted a plea that the parents were converted to Christianity.
We should have understood such an application being made in the Court of trial when the Register was produced, because that might have been a matter not within the knowledge of the election petitioner till the register was produced.
But after the Register had been produced and it lay in the Court for nearly an year and had been inspected by the answering respondent, it does not lie in his mouth to say that he had no notice of the true facts.
He had notice of them because he had the register with him and the names of the alleged parents of the answering respondent are clearly mentioned therein.
In fact the register seems to be a well kept document written extremely legibly and there was no danger of any name having been overlooked.
Therefore we must consider this as a belated plea and reject it on the two grounds already mentioned by us.
Once the application for amendment is out the way, the question is whether the appeal of the election petitioner can be otherwise sustained.
Mr. Ram Reddy contended that under el.
(3) of the Presidential Order, it is sufficient to prove that if a person professes religion other than Hinduism or Sikhism it disentitles him to contest for a reserved seat.
He says that for whatever reason the answering respondent be regarded as a 986 Christian today or at any rate at the time he filed his nomination paper, he would be incompetent to stand for the election from the reserved seat if he professed a religion other than Hinduism " or Sikhism.
In other words, 'he wants to extract from the plea and the issue a very much narrower field for enquiry, namely, that the answering respondent was not a Hindu on that date.
This would have been a proper plea to take in the first instance.
It is because of clumsy blundering that the petitioner undertook a much greater burden than the law required him to take.
He should have pleaded only that the returned candidate was a Christian on the date he filed his nomination paper and therefore was not ,a Hindu and was not competent to stand for the Reserved Seat.
Instead he proceeded to demonstrate through his plea and his evidence that the returned candidate was himself converted to Christianity and failed.
In this view of the matter we do not think that we should allow him to change his front and narrow the field of enquiry to one which he should have adopted in the first instance.
Not having done so, we think that it is too late for him to change his case now.
For these reasons, we are constrained to dismiss the appeal.
We may say that it is an odd situation, because probably a Christian occupies a Reserved Seat, but this is the result of the vagaries of litigation which have to be carried on according to rules.
The rules do not permit us to give relief where the party himself is at fault in making a wrong plea and in not making the right plea in time.
But in the circumstances of the case, we think that the parties should be directed to bear their costs throughout.
V.P.S. Appeal dismissed.

summary:
The appellant and respondents were contestants for a reserved seat from 'a scheduled caste constituency for election to the State Legislative Assembly, and the first respondent was elected.
The election was challenged by the appellant on the ground that the respondent was not a member of scheduled caste because, he embraced Christianity and professed the Christian religion, and therefore, was not eligible to stand for election for the reserved seat.
During the trial, the High Court summoned a Register, containing the names of all converted Christians of the locality, which was maintained by the local church.
There was no entry showing that the first respondent was converted to Christianity.
On the issue whether the first respondent was converted to Christianity, the High Court, on a consideration of the entire evidence held that there were no proof of such conversion and dismissed the petition.
In appeal to this Court, a petition was flied alleging that the Register contained entries showing that the parents of the first respondent were converted to Christianity and it was prayed that the case should proceed on the plea of conversion to Christianity of the parents of the first respondent, in place of the original plea that the first respondent himself was so converted.
HELD: The prayer in the petition could not be granted because: (a) The plea changed the entire nature of t e case and required fresh evidence, (b) it was belated and beyond the period of limitation prescribed for filing of election petitions; and (c) the application should have been filed in the High Court itself, for, the Register was produced in the High Court and it was inspected by the parties who had thus ample opportunity to discover the basis for the new plea.
[995 D F] Under cl.
(3) of the Constitution (Scheduled Castes) Order, 1950, it would have been sufficient if the appellant pleaded and proved that the first respondent was a Christian that therefore he was not a Hindu and was not competent to stand for the reserved seat; but he chose to establish that the first respondent was himself converted to Christianity and failed to do so.
[996 B C]


judgement:
iminal Appeal No. 7 of 1953.
Appeal by Special Leave from the Judgment and Order of the High Court of Judicature at Nagpur dated the 15th.
September, 1952, in Criminal Case No. 45 of 1951 from the Order of the Court of the Magistrate 1st Class, Hoshangabad, in Criminal Case No. 75 of 1949.
H.J. Umrigar, Rameshwarnath and Rajinder Narain for the appellants.
T. L. Shevde, Advocate General of Madhya Pradesh (T. P. Naik and I. N. Shroff, with him) for the respondent.
May 14.
The Judgment of the Court was delivered by MEHAR CHAND MAHAJAN C.J.
The facts giving rise to this appeal are these: The appellant, Harishankar Bagla, and his wife, Smt.
Gomti Bagla, were arrested at Itarsi, by the Railway Police on the 29th November, 1948, for contravention of section 7 of the Essential Supplies (Temporary Powers) Act, 1946, read with clause (3) of the Cotton Textiles (Control of Movement) 383 Order.
, 1948, having been found in possession of new cotton cloth " weighing over six maunds which cloth, it was alleged,was being taken by them from Bombay to Kanpur without any permit.
After various vicissitudes through which the chalan passed the case was eventually withdrawn by the High Court to itself on the 3rd of September, '1951, as it involved a decision of constitutional issues.
By its order dated the 15th September, 1952, the High Court upheld the provisions of sections 3 and 4 of the Essential Supplies (Temporary Powers) Act, 1946, as constitutional.
It also upheld the constitutionality of the impugned Order.
Section 6 of the Act was held to be inconsistent with the provisions of the Railway Act but it was held that its unconstitutionality did not affect the prosecution in this case.
The High Court directed that the prosecution should proceed and the records sent back to the trial Court for being dealt with in accordance with law.
Leave to appeal was given both to the appellants and the respondent and requisite certificates under articles 132 and 134 of the Constitution were granted.
This appeal along with the connected appeal No. 6 of 1953 is before us on the basis of the said certificates.
Mr. Umrigar, who appeared in this and the connected appeal, urged the following points for our consideration and decision: (1) That sections 3 and 4 of the Essential Supplies (Temporary Powers) Act, 1946, and the provisions of the Cotton Cloth Control Order contravened the fundamental right of the appellants guaranteed by article 19(1)(f) and (g) of the Constitution; (2) That section 3 of the Essential Supplies (Temporary Powers) Act, 1946, and in particular section 4 were ultra vires, the Legislature on the ground of excessive delegation of legislative power; (3) That section 6 having been found ultra vires, section 3 was inextricably connected with it and that both the sections should have been declared ultra vires on that ground; and (4) That the impugned Control Order contravened existing laws, viz., the provisions of section 27,28 and 384 41 of the Indian Railways Act, and was thus void in its entirety.
The respondent challenged the judgment of the High Court that section 6 of the Act was unconstitutional.
In our judgment, none of the points raised by Mr. Umrigar have any validity.
On the other hand, we are of the opinion that the High Court was in error in declaring section 6 of the Act unconstitutional.
Sections 3 and 4 of the Essential Supplies (Temporary Powers) Act, 1946, provide as follows: "3.
(1) The Central Government, so far as it appears to it to be necessary or expedient for maintaining or increasing supplies of any essential commodity, or for socuring their equitable distribution and availability at fair prices, may by order provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein (2) Without prejudice to the generality of the powers conferred by sub section (1), an order made thereunder may provide (a) for regulating by licences, permits or otherwise the production or manufacture of any essential com modity;. . (d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity; 4.
The Central Government may by notified order direct that the power to make orders under section 3 shall,in relation to such matters and subject to such conditions, if any, as may be specified in the direction, be exercisable also by (a) such officer or authority subordinate to the Central Government, or (b) such State Government or such officer or authority subordinate to a State Government as may be specified in the direction.
" Section 6 runs thus: "6.
Any order made under section 3 shall have effect notwithstanding anything inconsistent therewith 385 contained in any enactment other than this Act or any instrument having effect by virtue of any enactment other than this Act." Under powers conferred by section 3 the Central Government promulgated on 10th September, 1948, Cotton Textiles (Control of Movement) Order, 1948.
Section '2 of this order defines the expressions "apparel," " carrier," " hosiery," " cloth " and " textile commissioner.
" Section 3 of the order runs as follows: "3.
No person.
shall transport or cause to be transported by rail, road, air, sea or inland navigation any cloth, yarn or apparel except under and in accordance with (i) a general permit notified in the Gazette of India by the Textile Commissioner, or (ii) a special transport permit issued by the Textile Commissioner.
" Section 8 provides that the Textile Commissioner may, by notification in the Gazette of India, prescribe the manner in which any application for a special transport permit under this Order shall be made.
The Central Government has prescribed forms for application for obtaining permits and the conditions under which permits can be obtained.
The first question canvassed by Mr. Umrigar was that the provisions of section 3 of the Control Order infringed the rights of a citizen guaranteed in subclauses (f) and (g) of article 19(1) of the Constitution.
These sub clauses recognise the right of a citizen to dispose of property and to carry on trade or business.
The requirement of a permit to transport by rail cotton textiles to a certain extent operates as a restriction on the rights of a person who is engaged in the business of purchase and sale of cotton textiles.
Clause (5) of article 19 however permits such restrictions to be placed provided they are in the public interest.
During the period of emergency it was necessary to impose control on the production, supply and distribution of commodities essential to the life of the community.
It was for this reason that the Legislature passed the Essential Supplies (Temporary Powers) Act 50 386 authorising the Central Government to make orders from time to time controlling the production, supply and distribution of essential commodities.
Clause 3 of the Control Order does not deprive a citizen of the right to dispose of or transport cotton textiles purchased by him.
It requires him to take a permit from the Textile Commissioner to enable him to transport them.
The requirement of a permit in this regard cannot be regarded as an unreasonable restriction on the citizen 's right under sub clauses (f) and (g) of article 19(1).
If transport of essential commodities by rail or other means of conveyance was left uncontrolled it might well have seriously hampered the supply of these commodities to the public.
Act XXIV of 1946 was an emergency measure and as stated in its preamble, was intended to provide for the continuance during a limited period of powers to control the production, supply and distribution of, and trade and commerce in, certain commodities.
The number of commodities held essential are mentioned in section 2 of the Act, and the requirement of a permit to transport such commodities by road or rail or other means of transport cannot, in any sense of the term, be said, in a temporary Act, to be unreasonable restriction on the citizen 's rights mentioned in clauses (f) and (g) of article 19(1).
The High Court was therefore right in negativing the contention raised regarding the invalidity of the Control Order as abridging the rights of the citizen under article 19(1) of the Constitution.
Mr. Umrigar further argued that the Textile Commissioner had been given unregulated and arbitrary discretion to refuse or to grant a permit, and that on grounds similar to those on which in Dwarka Prasad vs The State of Uttar Pradesh (1), this Court declared void section 4(3) of the Uttar Pradesh Coal Control Order, section 3 of the Control Order in question should also be declared void.
This argument again is not tenable.
In the first place, the appellants never applied for a permit and made no efforts to obtain one.
If the permit had been applied for and refused arbitrarily they might then have had a right to attack the law on (1) A.T.R. ; 387 the ground that it vested arbitrary and unregulated power in the textile commissioner.
The appellants were not hurt in any way by any act of the textile commissioner as they never applied for a permit.
They were transporting essential goods by rail without a permit and the only way they can get any relief is by attacking the section which obliges them to take a permit before they can transport by rail essential commodities.
It may also be pointed out that reference to the decision of this Court in Dwarka Prasad 's case(1) is not very opposite and has no bearing on the present case.
Section 4(3) of the Uttar Pradesh Coal Control Order was declared void on the ground that it committed to the unrestrained will of a single individual to grant, withhold or cancel licences in any way he chose and there was nothing in the Order which could ensure a proper execution of the power or operate as a check upon injustice that might result from improper execution of the same.
Section 4(3) of the Uttar Pradesh Coal Control Order was in these terms: " The Licensing Authority may grant, refuse to grant, renew or refuse to renew a licence and may suspend, cancel, revoke or modify any licence or any terms thereof granted by him under the Order for reasons to be recorded.
Provided that every power which is under this Order exercisable by the Licensing Authority shall also be exercisable by the State Coal Controller, or any person authorized by him in this behalf In the present Control Order there is no such provision as existed in the Uttar Pradesh Coal Control Order.
Provisions of that Control Order bear no analogy to the provisions of the present Control Order.
The policy underlying the Order is to regulate the transport of cotton textile in a manner that will ensure an even distribution of the commodity in the country and make it available at a fair price to all.
The grant or refusal of a permit is thus to be governed by this policy and the discretion given to the Textile Commis sioner is to be exercised in such a way as to effectuate this policy.
The conferment of such a discretion (i) ; A.I.R. 1954 S.C. 225; 388 cannot be called invalid and if there is an abuse of the power there is ample power in the Courts to undo the mischief Presumably, as appears from the different forms published in the Manual, there are directions and rules laid down by the Central Government for the grant or refusal of permits.
The next contention of Mr. Umrigar that section 3 of the Essential Supplies (Temporary Powers) Act, 1946, amounts to delegation of Legislative power outside the permissible limits is again without any merit.
It was settled by the majority judgment in the Delhi Laws Act case (1) that essential powers of legislation cannot be delegated.
In other words, the legislature cannot delegate its function of laying down legislative policy in respect of a measure and its formulation as a rule of conduct.
The Legislature must declare the policy of the law and the legal principles which are to control any given cases and must provide a standard to guide the officials or the body in power to execute the law.
The essential legislative function consists in the determination or choice of the legislative policy and of formally enacting that policy into a binding rule of conduct.
In the present case the legislature has laid down such a principle and that principle is the maintenance or increase in supply of essential commodities and of securing equitable distribution and availability at fair prices.
The principle is clear and offers sufficient guidance to the Central Government in exercising its powers under section 3.
Delegation of the kind mentioned in section 3 was upheld before the Constitution in a number of decisions of their Lordships of the Privy Council, vide Russell vs The Queen (2), Hodge vs The Queen (3), and Shannon vs Lower Mainland Dairy Products Board (4)and since the coming into force of the Constitution delegation of this character has been upheld in a number of decisions of this Court on principles enunciated by the majority in the Delhi Laws Act case (1).
As already.
pointed out, the preamble and the body of the sections sufficiently formulate the legislative policy and the ambit and character of I I) ; (2) 7 A.C. 829.
(3) 9 A.C. II7.
(4) [I938] A.C. 708.
389 the Act is such that the details of that policy can only be worked out by delegating them to a subordinate authority within the framework of that policy.
Mr. Umrigar could not very seriously press the question of ' the invalidity of section 3 of the Act and it is unnecessary therefore to consider this question in greater detail.
Section 4 of the Act was attacked on the ground that it empowers the Central Government to delegate its own power to make orders under section 3 to any officer or authority subordinate to it or the Provincial Government or to any officer or authority subordinate to the Provincial Government as specified in the direction given by the Central Government.
In other words, the delegate has been authorized to further delegate its powers in respect of the exercise of the powers of section 3.
Mr. Umrigar contended that it was for the Legislature itself to specify the particular authorities or officers who could exercise power under section 3 and it was not open to the Legislature to empower the Central Government to say what officer or authority could exercise the power.
Reference in this connection was made to two decisions of the Supreme Court of the United States of America Panama Refining Co. vs Ryan (1) and Schechter vs United States (2).
In both these cases it was held that so long as the policy is laid down and a standard established by a statute, no unconstitutional delegation of legislative power is involved in leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the policy as declared by the Legislature is to apply.
These decisions in our judgment do not help the contention of Mr. Umrigar as we think that section 4 enumerates the classes of persons to whom the power could be delegated or sub delegated by the Central Government and it is not correct to say that the instrumentalities have not been selected by the Legislature itself.
The decision of their Lordships of the Privy Council in Shannon 's case (3), completely negatives the contention raised regarding the invalidity of section 4.
(1) ; (3) (2) ; 390 In that case the Lt.Governor in Council was given power to vest in a marketing board the powers conferred by section 4A(d) of the Natural Products Marketing (British Columbia) Act, 1936.
The attack on the Act was that without constitutional authority it delegated legislative power to the Lt.Governor in Council.
This contention was answered by their Lordships in these terms: " The third objection is that it is not within the powers of 'the Provincial Legislature to delegate so called legislative powers to the Lt. Governor in Council, or to give him powers of further delegation This objection appears to their Lordships subversive of the rights which the Provincial Legislature enjoys while dealing with matters falling within the classes of subjects in relation to which the Constitution has granted legislative powers.
Within its appointed sphere the Provincial Legislature is as supreme as any other Parliament; and it is unnecessary to try to enumerate the innumerable occasions on which Legislatures, Provincial, Dominion and Imperial, have entrusted various persons and bodies with similar powers to those contained in this Act.
" The next contention that the provisions of the Textile Control Order operate as an implied repeal of sections 27, 28 and 41 of the Indian Railways Act and are therefore invalid is also not well founded.
The requirement of a permit by clause (3) and provisions of clause (4) of the Order which empower the Textile Commissioner to direct a carrier to close the booking or transport of cloth, apparel, etc., are not in direct conflict with sections 27, 28 and 41 of the Railways Act.
The Railways Act does not exclude the placing of a disability on a railway administration by the Government or any other authority.
This clause merely supplements the relevant provisions of the Railways Act and does not supersede them.
Similar observations apply to clause (5) which enables the Textile Commissioner to place an embargo on the transport of certain textiles from one area to another.
There is nothing in the provisions of the order which in any way overrides or supersedes the provisions of the different sections of the Railways Act referred to above.
391 The last contention of Mr. Umrigar that section 6 having been declared invalid, section 3 is inextricably mixed with it and should also have been declared invalid is also not valid, because apart from the grounds given by the High Court for holding that the two sections were not so interconnected that the invalidity of one would make the other invalid, the High Court was in error in holding that section 6 was unconstitutional.
Section 6 of the Act cited above declare, that an order made under section 3 shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or any instrument having effect by virtue of any enactment other than this Act.
In other words it declares that if there is any repugnancy in an order made under section 3 with the provisions of any other enactment, then notwithstanding that inconsistency the provisions of the Order will prevail in preference to the provisions of other laws which are thus inconsistent with the provisions of the Order.
In the view of the High Court the power to do something which may have the effect of repealing, by implication, an existing law could not be delegated in view of the majority decision of this Court in In Re: Delhi Laws Act (1), where it was held that to repeal or abrogate an existing law is the exercise of an essential legislative power.
The learned Judges of the High Court thought that the conferment of power of the widest amplitude to make an order inconsistent with the pre existing laws is nothing short of a power to repeal.
In our opinion the construction placed on section 6 by the High Court is not right.
Section 6 does not either expressly or by implication repeal any of the provisions of pre existing laws; neither does it abrogate them.
Those laws remain untouched and unaffected so far as the statute book is concerned.
The repeal of a statute means as if the repealed statute was never on the statute book.
It is wiped out from the statute book.
The effect of section 6 certainly is not to repeal any one of those laws or abrogate then;.
Its object is simply to by pass them where they are inconsistent with the provisions of the Essential Supplies (Temporary Powers) (I) [1951) S.C.R, 747. , or the orders made thereunder.
In other words, the orders made under section 3 would be operative in regard to the, essential commodity covered by the Textile Control Order wherever there is repugnancy in this Order with the existing laws and to that extent the existing laws with regard to those commodities will not operate.
By passing a certain law does not necessarily amount to repeal or abrogation of that law.
That law remains unrepealed but during the continuance of the order made under section 3 it does not operate in that field for the time being.
The ambit of its operation is thus limited without there being any repeal of any one of its provisions.
Conceding, how ever, for the sake of argument that to the extent of a repugnancy between an order made under section 3 and the provisions of an existing law, to the extent of the repugnancy, the existing law stands repealed by implication, it seems to us that the repeal is not by any Act of the delegate, but the repeal is by the legislative Act of the Parliament itself.
By enacting section 6 Parliament itself has declared that an order made under section 3 shall; have effect notwithstanding any inconsistency in this order with any enactment other than this Act.
This is not a declaration made by the delegate but the Legislature itself has declared its will that way in section 6.
The abrogation or the implied repeal is by force of the legislative declaration contained in section 6 and is not by force of the order made by the delegate under section 3.
The power of the delegate is only to make an order under section 3.
Once the delegate has made that order its power is exhausted.
Section 6 then steps in wherein the Parliament has declared that as soon as such an order comes into being that will have effect notwithstanding any inconsistency therewith contained in any enactment other than this Act.
Parliament being supreme, it certainly could make a law abrogating or repealing by implication provisions of any pre existing law and no exception could be taken on the ground of excessive delegation to the Act of the Parliament itself.
There is no delegation involved in the provisions of section 6 at all and that section could not be held to be unconstitutional on that ground, 393 The result therefore is that in our opinion the provisions of sections 3, 4 and 6 of the Essential Supplies (Temporary Powers) Act, 1946, are constitutional and.
the impugned order is also constitutional.
Accordingly ' this appeal is dismissed, and the trial Court is directed to proceed expeditiously with the case in accordance with law.
Appeal dismissed.

summary:
Clause 3 of the Cotton Textile (Control of Movement) Order, 1948, promulgated by the Central Government under section 3 of the Essential Supplies (Temporary Powers) Act, 1946, does not deprive a citizen of the right to dispose of or transport cotton tex B tiles purchased by him.
It requires him to take a. permit from the Textile Commissioner to enable him to transport them.
The requirement of a permit in this respect cannot be regarded as an A unreasonable restriction on the citizen 's right under sub clauses (f) and (g) of article 19(1) of the Constitution.
The policy underlying the Control Order is to regulate the transport of cotton textiles in a manner that will ensure an even distribution of the commodity in the country and make it available at a fair price to all.
The grant or a refusal of a permit is to be governed by the policy and the discretion given to the Textile Commissioner is to be exercised in such a way as to effectuate this policy.
The conferment of such a discretion cannot be called invalid and if there is an abuse of power there is ample power in Courts to undo the mischief.
Messrs. Dwarka Prasad Laxmi Narain vs The State of Uttar Pradesh (([1954] S.C.R. 803) distinguished.
It was settled by the majority judgment in the Delhi Laws Act case ([1951] 'S.C.R. 747) that the essential powers of legislation cannot be delegated.
The Legislature must declare the policy of the law and the legal principles which are to control any given cases and must provide a standard to guide the officials or the body in power to execute the law.
The Legislature has laid down such a principle in the Act and that principle is the maintenance or increase in supply of essential commodities and of securing equitable distribution and availability at given prices.
The preamble and the body of the sections in the Essential Supplies (Temporary Powers) Act, 1946, sufficiently formulate the legislative policy and the ambit and the character of the Act is such that the details of that policy can only be worked out by delegating that power to a subordinate authority within the framework of that policy.
Therefore section 3 of the Act is not ultra vires the Legislature on the ground of delegation of legislative power.
Section 4 of the Act enumerates the classes of persons to whom the power could be delegated or sub delegated by the Central Government and it is not correct to say that the instrumentalities have not been selected by the Legislature itself.
Accordingly section 4 of the Act is not ultra vires on the ground of excessive delegation of legislative powers.
Shannon vs Lower Maintand Dairy Products Board ([1938] A.C. 708) applied.
382 The requirements of a permit by clause 3 and the provisions of clause 4 of the Central Order which empower the Textile Commissioner to direct a carrier to close booking or transport of cloth apparel, etc., are not in conflict with sections 27, 28 and 41 of the Railways Act.
These clauses merely supplement the relevant provisions of the Railways Act and do not supersede them. ' Section 6 of the Act does not either expressly or by implication repeal any of the provisions of the preexisting laws ; nor does it abrogate them.
Those laws remain untouched and unaffected so far as the statute book is concerned.
The repeal of a statute means that the repealed statute must be regarded as if it had never been on the statute book.
The effect of section 6 is not to repeal those laws or abrogate them but simply to by pass them where they are inconsistent with the provisions of the Essential Supplies (Temporary Powers) Act, 1946 or the orders made thereunder.
Even assuming that the existing law stands repealed by implication, such abrogation or repeal is by force of the legislative declaration contained in section 6 and is not by force of the order made by the delegate under section 3.
Accordingly there is no delegation involved in the provision of section 6 and it cannot be held uncon stitutional on that ground.