judgement:
Appeal Nos.
1448 & 1587 of 1971.
(From the Judgment and Decree dated the 29 1 1971 of the Madras High Court in Writ Appeal No. 119/70 and Writ Peti tion No. 471/70) Lal Narain Sinha, Solicitor General, 8.
N. Prasad (in CA No. 1448/71) and Girish Chandra, for the appellants.
316 K.K. Venugopal and K.R. Nambiar for the respondents.
The Judgment of the Court was delivered by RAY, C.J.
These appeals are by certificate against judgment and order dated 29 January 1971 of the High Court of Madras.
The respondents filed writ petitions in the High Court for a declaration that the Presidential Order dated 27 April 1960, the Railway Board orders dated 25 January 1962, Memo randa or Orders of the Ministry of Home Affairs dated 3 March 1966 and the Posts & Telegraph Department Orders dated 6 February 1965, 4 December 1965.
23 September 1967, 19 June 1968 and 9 February 1970 are void.
The Presidential Order dated 27 April 1960 was inter alia as follows : XXX XXX XXX 5.
Training of administrative personnel in the Hindi Medium . . (a) In accordance with the opinion expressed by the Committee in service training in Hindi may be made obligatory for Central Government employees who are aged less than 45 years.
This will not apply to employees below Class III Grade, industrial establishtments and work charged staff.
In this Scheme no penalty should be imposed for failure to attain the prescribed standard by the due date.
Facilities for Hindi training may continue to be provided free of costs to the trainees.
(b) Necessary arrangements may be made by the Ministry of Home Affairs for the train ing of typists and stenographers employed under the Central Government in Hindi type writing and stenography.
(c) The Ministry of Education may take early steps to evolve a standard key board for Hindi typewriters.
XXX XXX XXX 7.
Recruitment to local offices of Central Government Department : (c) The Committee has agreed with the recommendation of the Commission that the Union Government would be justified in pre scribing a reasonable measure of knowledge of Hindi language as a qualification for entering into their services provided a sufficiently long notice is given and the measure of lin guistic ability prescribed is moderate, any deficiency being made good by further in service training.
This recommendation may be applied for the present in regard to recruitment in the local offices of the Central Government De partments in the Hindi speaking areas only and not in the local offices in non Hindi speaking areas.
The directions under (a), (b) and (c) above will not apply to offices under the Indian and Audit and Accounts Department . " 317 The Railway Board Notification dated 25 January 1962 inter alia stated as follows: "The progress of Hindi training of staff on the Railways is very slow and the facili ties provided by the Government are not being utilized properly.
Immediate steps should be taken to correct the position and ensure that the facilities offered by the Government are not misused.
Since training in Hindi is obligatory and is being imparted during work ing hours, wilful absence from Hindi classes should be treated as absence from duty and dealt with as such.
" The Home Ministry Memorandum dated 3 March 1966 inter alia stated as follows: In service training in Hindi was made obligatory for all Central Government Employees below 45 years of age, excluding employees below Class III Grade, industrial establishments and workcharged staff.
The pro gramme for facilitating the progressive use of Hindi should be completed by March 1966.
Steps for the fuller use of facilities under the Hindi Teaching Scheme were being laid down.
The facilities indicated that employees working in a Ministry should get themselves enrolled in the Hindi classes and failure to attend these classes should be discouraged and the obligatory training should include their appearance at the examinations.
One of the Posts & Telegraph 's Orders referred to above is set out as a type.
This Order provides teaching facili ties and free training in Hindi during office hours.
One of the petitioners in the High Court was Murasoli Maran.
He described himself as a sitting Member of Parlia ment and stated that he had duty to represent the people.
The locus standi of the petitioner was challenged in the High Court '.
The High CoUrt rightly held that the petition er could not maintain the petition in the High Court.
The petitioner in the other writ petition described himself as Assistant Manager in the Office of the Post Master General, Madras.
His locus standi was not chal lenged.
The petitioners contended in the High Court that the Presidential Order ceased to have any effect because the Second Language Commission was not appointed as contemplated under Article 344 of the Constitution.
The second conten tion was that the Presidential Order and other orders, circulars and memoranda issued pursuant thereto were incon sistent with section 3 of the Official Language Act 1963, as amended, inasmuch as they placed persons like the petition ers in a disadvantageous position on account of their having no proficiency in the Hindi language.
The two relevant Articles in the Constitution are Arti cles 343 and 344.
Broadly stated, Article 343 provides as follows.
The official language of the Union shall be Hindi in Devanagari script.
For a period of 15 years from the commencement of the Constitution, the English language shall continue to be used for all the official purposes of the Union for which it was being used immediately before such commencement.
The proviso to Article 343 (2) is that the President may, 318 during the said period, by order authorise the use of the Hindi language in addition to the English language.
Parlia ment may by law provide for the use, after the said period of 15 years,of the English language for such purposes as may be specified in the law.
Article 344 is as follows.
The President shall, at the expiration of five years from the commencement of the Con stitution and thereafter at the expiration of ten years from such commencement, by order constitute a Commission.
It shall be the duty of the Commission to make recommendations to the President as to (a) the progressive use of the Hindi Language for the official purposes of the Union; (b) re strictions on the use of the English language for all or any of the official purposes of the Union; (c) the language to be used for all or any of the purchases mentioned in Article 348.
Article 344 further provides that a Committee shall be constituted and it shall be the duty of the Committee to examine the recommendations of the Commission constituted under Article 344(1) and to report to the President their opinion thereon.
Article 344(6), provides that notwithstanding anything in Article 343, the President may, after consideration of the report referred to in clause (5), issue directions in accordance with the whole or any part of that report.
Article 351 provides that it shall.
be the duty of the Union to promote the spread of the Hindi language, to devel op it so that it may serve as a medium of expression for all the elements of the composite culture of India.
In exercise of the posers conferred on the Parliament by Article 343(3) of the Constitution, the Parliament passed the .
Section 3 of the Act provided us follows : "Notwithstanding the expiration of the period of fifteen years from the commencement of the Constitution, the English language may, us from the appointed day, continue to be used, in addition to Hindi, (a) For all the official purposes of the Union for which was ,,being used immediately before that day, and (b) for the transaction of business in Parlia ment.
" In 1968, the Parliament amended the and sub section (4) was added to section 3.
Sub section (4) as introduced by Amendment in 1968 is as fol lows: "Without prejudice to the provisions of sub section (1) or sub section (2) or sub section (3), the Central Government may, by rules made under section 8, provide for the language or languages to be used for the official purpose of the Union, including the working of any Ministry, Department, Section or Office, and in making such rules, due consideration shall be given to the quick and efficient disposal 319 of the official business and the interests of the general public and in particular, the rules so made shall ensure that persons serving in connection with the affairs of the Union and having proficiency either in Hindi or in the English language may function effectively and that they are not placed at a disadvantage on the ground that they do not have proficiency in both the languages.
" On 7 June 1955, the Official Language Commission was ap pointed by the President under Article 344(1) of the Consti tution.
The Commission submitted its report in which the arrangements made by Government of India for training their employees on voluntary basis in Hindi Language was reviewed.
The Commission was of opinion that if experience showed that no adequate results were forthcoming under such option al arrangements, necessary steps should be taken by the Government of India making it obligatory on Government ser vants to qualify themselves in Hindi within the requisite period, to the extent requisite for the discharge of their duties.
The recommendations of the Official Language Com mission were placed before a Committee of the Parliament as envisaged under Article 344(4) of the Constitution.
The Committee was of opinion that the Government should pre scribe obligatory requirements on Government servants to qualify themselves in Hindi language.
The President of India after considering the report of the Committee, issued the Presidential Order dated 27 April 1960 to which a reference has already been made.
Training in Hindi was made obligatory for employees.
Pursuant to the Presidential Order of 27 April 1960, the Home Ministry issued an office Memorandum dated 3 March 1966.Reference has already been made to that order.
The Home Ministry Order made it obligatory for Government em ployees below 45 years of age excluding certain classes of employees to have, what is described, "In service training in Hindi".
The Memorandum stated that 20 per cent of the employees should be deputed to attend the Hindi classes every year.
The Memorandum also stated that failure to attend these classes should attract penalties.
The obligatory training was to include their appearance at the examinations.
Pursuant to the Home Ministry instructions, the Post Master General, Madras, under the directions of the Director General of posts and Telegraph, issued a Memoran dum referring 10 the Presidential Order of 27 April 1960 and the Home Ministry Order dated 3 March 1966.
The Posts & Telegraph Memorandum made "In service training in Hindi" compulsory for all Central Government employees who were aged less than 45 as on 1 January 1961.
The Memorandum further outlined the facilities and incentives provided for the Hindi teaching.
Specific mention was made that attend ance to Hindi class was compulsory and was treated as part of duty.
Non compliance of Government Orders was to be treated as breach of discipline.
Solicitor General contended on behalf of the appel lant that the instructions were aimed at promoting the policy of the constitutional 320 provisions that Hindi should be the official language of the Union It was said that with a view to achieving the objec tive the employees of the Government of India ought to be trained in Hindi language.
It was also said that no one was placed at a disadvantage even if one could not qualify oneself in Hindi because no penalty was prescribed for an employee who did not attain any particular standard.
It was submitted that the Government was within its right to issue orders obliging its employees to take training in the Hindi language, so that ultimately when Hindi became the language of the Union, they could perform their duties in an effi cient and smooth manner.
The High Court upheld the contention of the respondents and held that the directions were inconsistent with section 3 of the .
The High Court held that the penal consequences which followed if a Government employee absented himself from Hindi Classes had the effect of putting such an employee at a disadvantage.
Counsel for the respondents contended first that under Article 343(3), Parliament may by law provide for the use, after the period of fifteen years, of the English language for such purposes as may be specified in the law.
Emphasis was placed on Article 343 of the Constitution to submit that Article 343 is transitional and directions of the President are limited to the period of 15 years from the commencement of the Constitution.
The following reasons were advanced: The fact that the Commission has to be constituted under Article 344 at the expiration of five years from the com mencement of the Constitution.
namely, 1955 and thereafter at the expiration of ten years from the commencement of the Constitution, namely, 1960 and not thereafter, would show that the directions issued by the President under Article 344(6) are limited to the period of fifteen years from the commencement of the Constitution.
The position which would prevail after 1965 would not be within the knowledge of the Commission of the years 1955 and 1960 because the Parliament has to decide the same.
The recom mendations of the Commission and the directions of the President cannot relate to the period after 1965.
By reason of Article 344(2)(a) and (b) the recommenda tions of the Commission as to the progressive use of the Hindi language and the restrictions on the use of the Eng lish language are matters to come within the period of fifteen years from the commencement of the Constitu tion.
Article 344(3) of the Constitution which requires the Commission to have due regard to the claims of non Hindi speaking persons in public services, indicates that these claims cart be protected only when both English and Hindi language continue.
Article 344(6) which states that notwithstanding any thing in Article 343, the President may issue directions should be related to purposes of sub clauses (a) to (e) of Article 344(2).
321 Council for the respondent relied on Article 349 in support of the contention that the affect of Article 349 is that after fifteen years from the commencement of the Con stitution, if Parliament desires to substitute Hindi for English it can do so under unfettered discretion but during fifteen years it can substitute Hindi for English language by Presidential directions.
The second broad contention on behalf of the respondent was that the (referred to as the Act) occupies a field covered by Parliamentary Legislation.
Reference was made to Objects and Reasons of the , to show that acquiring of proficiency in Hindi is the principal purpose.
Section 3(4) of the Act which was introduced and inserted by Amendment in 1968, was said by the respondent to cover that area and inasmuch as the speaks of rules and the same being laid before Parliament that is the only mode of direc tions.
In other words, it was said that the Presidential Order would not have any effect when the Official Lan guages Act occupied the field.
The third head of submissions was that the Presidential Order is inconsistent with section 3(4) of the Act.
It was said in the High Court that if the Presidential Order was inconsistent with section 3 (4) of the Act it would to that extent be void.
It was stressed that Under section 3(4) of the Act, persons were not to be placed at a disad vantage on the ground that they do not have proficiency in both the languages, namely, English and Hindi.
In the forefront stands Article 343 which states that the official language of the, Union shall be Hindi in Deva nagari script.
Article 351 states that it shall be the duty of the Union to promote the spread of the Hindi language, to develop it so that it may serve as a medium of expression for all the elements of the composite culture of India and to secure its enrichment by assimilating without interfering with its genius, the forms, style and expressions used in Hindustani and in the other languages of India specified in the Eighth Schedule.
The original calculation of the framers of the Constitution was that for a period of fif teen years the English language should be used for all official purposes.
That is why two Commissions were contem plated under Article 344 one in 1955 and one in 1960.
The provisions of Article 344 indicate that it shall be the duty of the Commission to make recommendations to the Presi dent as to the progressive use of the Hindi language.
The provisions of the Constitution indicate the progress towards the use of Hindi language.
It is in this context that Article 344 is enacted for the purpose of achieving the object of replacing English by Hindi within a period of fifteen years.
Article 343(3) states that Parliament may by law after the period of fif teen years provide for the use of.
English language.
Al though the Constitution considered the period of 15 years for replacing English the Constitution also found that it might not be possible to complete it.
Therefore, Article 343(3) provides merely for extension of time for the use of English language after the period of 15 years.
The progres sive use of the Hindi language is thereby ,not to be im paired.
Extending the time for the use of the English 322 language does not amount to abandonment of progress in the use of Hindi as the official language of the Union.
Comparing clauses (2) and (3) of Article 343 it will be noticed that while English is permitted to be continued for all official purposes for which it was being used clause (3) contemplated that having regard to the progress made Parliament, if necessary will choose the purpose for which the use of the English language might be continued.
Article 344(6) provides that notwithstanding anything in Article 343, the President may, after consideration of the report of the Committee referred to in clause (5), issue directions.
The non abstante clause in Article 344(6) does not operate on1y against Article 344(1) and (2) but against the entire Article 344 for the reason that so far as transi tion is concerned the directions under Article 344(6) may continue.
Article 343 and 344 deal with the processes of transition.
The ultimate aim is provided in Article 351 which fulfils the object of the spread and development of the Hindi language and enrichment of the composite culture of India.
Article 344(6) takes into account this objective and is intended to determine the pace of progress and to achieve the same.
The provisions in Article 344 indicate that if there is a second Commission at the expiration of ten years from the commencement of the Constitution, the President may, after consideration of the report issue directions at the end of fifteen years.
The provisions contained in Article 344(6) are not exhausted by using it once.
The President can use it on more than one occasion.
Further the effect of the power used cannot be said to be exhausted on the expiry of fifteen years.
The PreSidential Order which was issued in 1960 continues to be in force and cannot be said to have exhausted itself at the end of 15 years from the commence ment of the Constitution.
It would be strange that the steps necessary for the change should be given up at the expiry of 15 years because what is said to be a switch over from English to Hindi has not been possible and Parliament provided by law for r. he continued use of the English language for particular purposes specified in that law.
The Presidential Order keeps in view the ultimate object to make the Hindi language as official language, but take is into note the circumstances prevailing in our country and considers it desirable that the change should be a gradual one and due regard should be given to the just claims and the interests of persons belonging to the nonHindi speak ing areas.
The purpose of the Presidential Order is to promote the spread of the Hindi language and to provide the Central Government employees the facilities to take training in Hindi language when they are in service.
The Presidential Order was validly made and there has been and can be no challenge to it.
It is erroneous to suggest that the Presidential Order of 1960 became invalid after the passing of the Act.
The High Court failed to see the sequence of the Presidential Order and the Act.
323 The Act merely continues the use of the English language in addition to Hindi.
The Act does not provide anything which can be interpreted as a limitation on the power of the President to issue directions under Article 344(6) of the Constitution.
The Presidential Order has no inconsist ency with the Act.
The non obstante provisions in Article 344(6) empower the President.
Therefore, the Presidential Order is paramount.
Parliament is legislating in a different field.
The filed is the per missive use of English language in addition to Hindi during the period following 15 years because the change to Hindi could not be complete.
, The transitional period has exceeded 15 years.
The Presidential Order keeps in view the steps to replace the use of English language.
The operation of the Act and the Presidential Order is in different fields and has different purposes.
The Act is to continue the use of English language after the expiry of fifteen years.
Presidential Order on the other hand is to provide for the progressive use of the Hindi language.
The contention of the respondent that persons are placed at a disadvantage is incorrect.
The Presidential Order confers an additional qualification on those who learn Hindi.
The Presidential Order does not take away anything from the Government employees.
Prizes are offered and there may be increase in pay.
These are incentives.
The measures taken for enforcement of provisions for learning Hindi by providing for absence from classes as breach of discipline and insisting on appearance at the examinations are steps in aid of fulfilling the object of what is described as "in service training in Hindi language.
" Such enforcement of attendance and examinations for proficiency is necessary for completion of training.
The contention that the Presiden tial Order conflicts with section 3(4) of the Act is un sound.
The "in service training" of the employees is during hours of duty and free of cost.
Even if they fail there is no penalty.
There is no treatment of unequals alike.
For the foregoing reasons, the judgment of the High Court is set aside.
The Presidential Order and other Orders challenged in the writ petitions are upheld.
The appeals are accepted.
The writ petitions are dismissed.
Parties will pay and bear their own costs.
S.R. Appeal allowed.

summary:
Presidential Orders dated 27th April 1960 and the var ious orders and circulars issued pursuant thereto by the Home Ministry, P & T Department and Railway Board, compel ling attendance in "Hindi in service training" as part of duty and providing for penal consequences for non attendance were quashed by the Madras High Court as being inconsistent with section 3 of the as amended by Act 1 of 1968 which was law made by Parliament under article 343(3) of the Constitution.
In appeals to this Court on certificates, the appellant Union contended: (i) The instructions were aimed at promoting the policy of the constitutional revisions that Hindi should be the official language of the Union; (ii) No employee was placed at a disadvantage even if one could not qualify oneself in Hindi because no penalty was prescribed for an employee who did not attain any particular standard; and (iii) The Government was within its rights to issue orders obliging its employees to take training in Hindi language, so that ultimately when Hindi became the language of the Union they could perform their duty in an efficient and smooth manner.
The respondents reiterated their stand, namely, (i) Article 343 of the Constitution is transitional and directions of the President are limited to the period of 15 years from the commencement of the Constitution in view of the provision in Articles 343, 344(1), 344(2)(a) and (b), 344 (3), 344 (6) indicating that directions should relate to purposes of subclauses (a) to (e) of Article 344(2); (ii) When the embodied the field covered by Parliamentary legislation, the Presidential Order would not have any effect; (iii) The Presidential Order is inconsistent with section 9 (4) of the as amended in 1968 and to that extent void; and (iv) Under section 3(4) of the , persons were not to be placed at a disadvantage on the ground that they do not have proficiency in both the languages, namely, English and Hindi.
Dismissing the writ petitions and allowing the appeals, HELD: (1) The Presidential Orders dated 27th April 1960 and the various orders and circulars issued by Home Minis try, P & T Department and Railway Board pursuant thereto are valid.
[323H] (2) The Presidential Order was validly made and there has been and can be no challenge to it.
The President Order keeps in view the ultimate object to make the Hindi language as official language, but takes into note the circumstances prevailing in our country and considers it desirable that the change should be a gradual one and due regard should be given to the just claims and the interests of persons belonging to the non Hindi speaking areas.
The purpose of the Presidential Order is to promote the spirit of the Hindi language and to provide the Central Government employees the facilities to take training in Hindi language when they are in service.
[322F G] (3) The provisions in article 344 indicate that if there is a Second Commission at the expiration of ten years from the commencement of the Constitution, the President, may after consideration of the report, issue directions at the end of fifteen years.
The provisions contained in article 344(6) are not exhausted by using it once.
The President can use it on more than one occasion.
Further the effect of the power used cannot be said to be exhausted on the expiry of fifteen 315 years.
The Presidential Order which was issued in 1960 continues to be in force and cannot be said to have exhaust ed itself at the end of fifteen years from the commencement of the Constitution.
It would be strange that the steps necessary for the change should be given up at the.
expiry of fifteen years because what is said to be a switch over from English to Hindi has not been possible and Parliament provided by law for the continued use of the English lan guage for particular purposes specified in that law.
[322D F] (4) Article 344 is enacted for the purpose of achieving the object of replacing English by Hindi within a period of 15 years.
The ultimate object is provided in article 351 which fulfils the object of the spirit and development of the Hindi language and enlargement of the composite culture of India, Articles 343 and 344 deal with the process of transi tion.
Article 343(3) provides merely for extension of time for the use of English language after the period of 15 years.
The progressive use of the Hindi language is thereby not to be impaired.
Extending the time for the use of the English language does not amount to abandonment of progress in the use of Hindi as the official language of the Union.
[321G H, 322A B] (5) Article 344(6) provides that notwithstanding any thing in article 343, the President may after consideration of the report of the committee issue directions.
The non obstante clause in article 344(6) does not operate only against article 344(1) and (2) but against the entire article 344 for the reason that so far as transition is concerned, the direc tions under article 344(6) may continue.
Article 344(6) takes this objective and is intended to determine the pace of progress and to achieve the same.
[322B C] (6) The High Court failed to see the sequences of the Presidential Order and the .
It is erroneous to suggest that the Presidential Order of 1960 became invalid after the passing of the Act.
The Act merely continues the use of English language in addition to Hindi.
The Act does not provide anything which can be interpreted as a limitation on the vower of the President to issue directions under article 344(6) of the Constitution.
The Presidential Order has no inconsistency with the Act.
The non obstante provision in article 344(6) empowers the Presi dent.
[322G H, 323A B] (7) Parliament is legislating in a different field.
The field is the permissible use of English language in addition to Hindi during the period following 15 years because the change to Hindi could not be complete.
The trasitional period has exceeded 15 years.
The Presidential Order keeps in view the steps to replace the use of English in Hindi and the application of the Act and the Presidential Order is in different fields and has different purposes.
The Offi cial Languages Act is to continue the use of English lan guage after the expiry of 15 years, but Presidential Order, on the other hand is, to provide for the progressive use of Hindi language.
It confers an additional qualification on those who learn Hindi and does not take away anything from the Government employees.
Prizes are offered and there may be increase in pay.
These are incentives.
The measures taken for enforcement of provisions for learning Hindi by providing for absence from classes as breach of discipline and insisting on appearance at the examinations are steps in aid of fulfilling the object of what is described as in service, training in Hindi language.
Such enforcement of attendance in examinations for proficiency if necessary for completion of training.
The contention that the Presiden tial.
Order conflicts with section 3(4) of the Act is unsound.
The "In service training" of the employees is during hours of duty and free of cost.
Even if they fail, there is no penalty.
There is no treatment of unequals alike.[323 B H] [323B F] Murasoli Maran etc.
vs Union of India & Ors.
1972 Madras 40 reversed.


judgement:
: Criminal Appeal No. 316 of 1971.
(Appeal by Special Leave from the Judgment and Order dated the 17th September, 1971 of the Patna High Court in Criminal Revision No. 2488 of 1971) and Criminal Appeal No. 317 of 1971.
(Appeal by Special Leave from the Judgment and Order dated the 7th October, 1971 of the Patna High Court in Criminal Revision No. 1491 of 1971.) D. Goburdhan and D.P. Sharma for the appellants in both the appeals.
S.C. Agrawala and V.J. Francis for respondents in both the appeals.
The Judgment of the Court was delivered by SHINGHAL, J.
The point for consideration in these appeals by special leave is whether affidavits, sworn or affirmed before magistrates who are not in seisin of the case under section 145 of the Code of Criminal Procedure, hereinafter referred to as the Code, could be read in evi dence under that section ? The High Court has held such affidavits to be inadmissible in evidence, in its impugned judgments dated September 17, 1971 and October 7, 1971, and that is why the present appeals by special leave have arisen at the instance of the aggrieved parties.
It is not in controversy that in the absence of any specific provision to the contrary in the Code, the affida vits have to be Sworn or affirmed in accordance with the provisions of the Oaths Act, 1873.
It is also not in con troversy that the Oaths Act of 1969 has no application to the controversy.
Sub section (1) of section 145 of the Code provides, inter alia, that the Magistrate making an order under it shall require the parties concerned in the dispute to attend his court in person or by pleader and to put in such docu ments, or to adduce, "by putting in affidavits, the evidence of such persons" as they rely upon in support of their claims.
The affidavits contemplated by the sub section are therefore evidence for purposes of the proceedings before the Magistrate concerned even though the Evidence Act does not apply to them by virtue of the express provision of section 1 of that Act.
Chapter XLVI of the Code deals with miscellaneous mat ters including the affidavits referred to in sections 539, 539 A and 539 AA.
Section 539 deals with courts and persons before whom affidavits and affirmations to be used before any High Court or any officer of such Court may be sworn and affirmed.
Section 539 A relates to 176 affidavits in proof of conduct of public servants, while section 539 AA relates to the authorities before whom affi davits to be used under section 510A or 539 A may be sworn or affirmed.
An affidavit under section 145 is not however of a formal character because it is meant to prove or dis prove the competing claim of the parties as respects the fact of actual possession of the subject or dispute.
There is thus no provision in the Code specifying the courts or persons before whom the affidavits referred to in section 145 have to be sworn and affirmed.
This has therefore to be done according to the general provisions relating to affidavits.
The definition of "affidavit" in section 3(3) of the (Act X of 1897) only states that it shall include affirmation and declaration in the case of persons by law allowed to affirm or declare instead of swearing.
But it is an essential characteristic of an affidavit that it should be made on oath or affirmation before a person having authority to administer the oath or affirmation It is here that section 4 of the Oaths Act comes into operation which provides as follows: "4.
The following Courts and persons are authorised to administer by themselves or by an officer empowered by them in this behalf, oaths and affirmations in discharge of the duties or in exercise of the powers imposed or conferred upon them respectively by law : (a) all Courts and persons having by law or consent of parties authority to receive evidence;" Then follow clause (b) and a proviso, with which we are not concerned.
It is therefore clear that all courts and persons having by law or consent of parties authority to receive evidence are authorised to administer oaths and affirmations, but they can do so only where they are otherwise acting" in the discharge of the duties or in exercise of the powers imposed or conferred upon them respectively by law." So the court or person mentioned in clause (a) of section 4 of the Oaths Act can administer oath or affirmation to the deponent in an affidavit only if the, court or person in acting in the "discharge of the duties or in exercise of the powers im posed or conferred upon them respectively by law." In the present cases, the Magistrates concerned with the proceeding under section 145 of the Code were discharging the duties imposed and exercising the powers conferred by the Code, and they alone could administer the oaths and affirmations to the persons who made the affidavits, and not the magistrates who were not discharging any such duty or exercising any such power.
As the affidavits in the cases before us were admittedly not sworn or affirmed before Magistrates who were dealing with the disputes under section 145 of the Code, they were not proper affidavits and did not constitute evidence for purpose of section 145.
A similar view 177 has been taken in Nandial Ghost vs Emperor(1), Hemdan vs State Rajasthan and others(2), Govind vs State and oth ers(3), Krishna Chandra Naik vs Sk.
Makbul and others(4) Mahesh Thakur and others vs Lakshman Prasad Thakur and another(5) and State Madhya Pradesh vs Triveni Prasad(6) on which reliance has been placed by counsel for the respond ents.
We have gone through Ahmad Din vs Abdul Selem,(7) which has been cited with approval in Shambhu Nath Chopra vs State,(8) on which reliance. has been placed by counsel for the appellants.
We find however that in Ahmad Din 's case (supra) the Punjab High Court did not take proper notice of the requirement of section 4 of the Oaths Act that the courts and persons mentioned in clause (a) could administer oaths only "in discharge of the duties or in exercise of the powers imposed or conferred upon them respectively by law.
" We have also examined the reasoning in Shambhu Nath Chopra 's case (supra), but the Delhi High Court there went wrong in holding that the evidence on affidavits referred to in section 145 of the Code was of a formal character within the meaning of section 510A so as to attract section 539 AA.
At the High Court has rightly held in the two impugned judgments that the affidavits were inadmissible in evidence as they were sworn before Magistrates who were never in seisin of the case, we find no force in these appeals and they are hereby dismissed.
P.H,P. Appeals dis missed.
(1) A.I.R. 1944 Cal.
(2) A.1.R. (3) A.I.R. 1969 All.
(4) A.I.R. 1970 Orissa 209.
(5) (1971) 19 Bihar, Law Journal 727.
(6) [1971] XVI M.P.L. J. 1059a (7) A.I.R. (8) A.I.R. 1970 Delhi 210. 13 1:158SCI/77 178 STATE OF KERALA vs M.T. JOSEPH November 25, 1976 [A. N. RAY, C.J., M.H. BEG AND JASWANT SINGH, JJ.] Kerala Land Reforms Act 1963 Kerala Government Land Assignment Act 1960 Sec.
8 Whether after a person ac quires title to Government land any further restrictions can be imposed.
The Government of Travancore sanctioned a scheme for the reclamation of the Vimbana Lake upon terms and conditions contained in at document dated 4 10 1963.
The document provided that one Joseph his father on payment of Rs. 10 '/ per acre which was to.
be recovered in 10 equal instalments would be given possession of certain tracts of land which they undertook to reclaim.
The said agreement was modified by an order dated 12 2 1941 and a fresh agreement was exe cuted in July 1941.
The said agreement provided that till tie remittances of all amounts due to the Government by way of land value are paid the executant shall have no right of alienation in respect of the property in question and that till then the property shall remain with the Government as sole owner.
It further provided that, until the entire land value is paid by the executant and until the assignment of the land and issue of Patta is completed, the executant undertook not to do any act which might reduce the value of tie property.
Joseph complied with the conditions laid down in the agreement and ;acquired full ownership rights by fulfilling the said terms.
In 1957, Joseph executed a deed of settlement of this land.
Thereafter Kerala Land Reforms Act of 1963 was passed so that the State Land Board started proceedings for the surrender of the land.
The question before the Land Board was whether the whole land should be treated as a single unit belonging to Joseph or whether it may be divided and treated as separate units of persons in whose favour Joseph made the settlement.
If the children of Joseph had acquired rights under the settlement each of them could be treated as entitled to compensation for a separate unit.
The State relied on section 8 of the Kerala Government Land Assignment Act 1960 which pro vides that all provisions, restrictions conditions and limitations contained ha any Patta or other document evi dencing an assignment of Government land shall be valid and take effect according to their tenure, any rule of law or usage to the contrary notwithstanding.
Dismissing the appeal, HELD: Tie terms in the 1941 agreement operated as a restraint upon the alientation of the rights only so long as all the amounts due to the Government by way of land revenue were not paid up.
Since, in the present case the entire amount had been paid by 10 yearly instalments before the year 1957 and since the Government had effected the mutation in its record acting upon the settlement of 1957 in favour of the children of Joseph, it could not be said that there was any patta or other documents containing any condition to which section 8 of the Act applied.
The chil dren derived rights under the deed of settlement and there fore, each of them is entitled to compensation for a sepa rate unit.
[180 C E] CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.
587 696 & 598 600 of 1976.
(Appeals by Special Leave from the Judgment and order dated 13th of July 1975 of the Kerala High Court in CRP Nos. 1188, 1227, 1250, 1272.
1278, 1279.
, 1284 1287, 1309, 1312 and 1386/73).
179 M.M. Abdul Khader, Adv.
and K.M.K. Nair, for the Appellants.
T.S. Krishnamoorthy Iyer and P.K. Pillai, for RR.
ex cepting R. 8 in CA 587/76.
The Judgment of the Court was delivered by BEG, J.
These appeals by special leave raise the ques tion whether the Kerala High Court had correctly interpreted and applied Section 8 of the Kerala Govt.
Land AsSignment Act, 1960 (hereinafter referred to as 'the Act ') to the cases before us.
This provision reads as follows: "8.
All provisions, restrictions, conditions and limitations over, contained in any Patta or other document evidencing an assignment of Government land shah be valid and take effect according to their tenor, any rule of law of usage to the contrary notwithstanding".
The facts upon which the provision was sought to be applied are these: On 23 October, 1939, the Government of Travancore sanctioned a. scheme for the reclamation of the Vimbang Lake upon terms and conditions which were set forth in a document dated 4 October, 1939.
The agreement provided that one M. T. Joseph and his father, on payment of Rs. 10/ per acre, which were to be recovered in ten equal instal ments, would be given possession of certain tracts of land which they undertook to reclaim.
For the first two years after what is called the "Registry" of the names of the two lessees no tax was to be levied.
The "Registry" was liable to be cancelled if adequate progress was not made within these two years.
It appears that the agreement was modified by an order dated 12 February, 1941 and a fresh agreement was executed in July 1941 by M.T. Joseph (now dead) who entered into possession of Keyal land, constructed the ring bunds at considerable expense, and brought the very large tracts of and to be reclaimed under paddy cultivation.
In June 1957, M.T. Joseph executed a deed of settlement of all this land, after he had acquired full ownership rights by fulfilling the terms of the agreement.
The Act which is sought to be now applied was then passed.
After that, the Kerala Land Reforms Act of 1963.
was passed so that the, "State Land Board" started proceedings for the surrender of these lands in accordance with the provisions of the Land Reforms Act.
The only question now before us is whether, by an appli cation of section 8 of the Act, the whole land is to be treated as a single unit belonging to M.T. Joseph (since dead), on the dispositions made by M.T. Joseph, under the deed of settlement executed by him on 15th June, 1957, distributing the land among his children, resulted in sepa rate units for the purposes of compensation for the land surrendered.
If the children had acquired right under the deed of settlement each of them could be treated as entitled to compensation for a separate unit.
If the deed was of no effect, the mere fact that the children were in possession, under an authority from their father could not change the ' ownership of the land in the constructive possession of the father.
We have been taken through the deed of agreement of July, 1941, with the Government.
which contains the follow ing term, the effect of which has to be determined: 180 "Till the remittance of all amount due to.
the Government by way tharavila (land value) etc.
the executant shall have no right of alienation in respect of the schedule property and the property shall remain with the Government as sole owner.
The executant shall remit the tax at the thirteenth thoram in the village office every year after the first two years of registry so long as no default is made in the payment of instalment and obtain receipt therefor.
Until the entire tharavila (land value under this agreement as stated above is paid by the executant and until the assignment of the land and issue of patta is completed the executant undertakes not to do any act which may reduce the value of the property and if as stated above due to any reason the property is recovered.
from the executant he shall not put forward any claim for improvements etc.
and the property shall be surrendered to Government".
It is clear to us that this term in the agreement oper ated as a restraint upon the alienation of rights only so.
long as.
all the amounts due to the Government as Tharavila had not been paid up.
The whole amount had to be paid up in ten yearly instalments.
It has been paid up before 1957.
Furthermore, as the Kerala High Court found, the settlement of land on 15th June, 1957 had not merely been given effect to by a mutation in the relevant Government records but pattas had actually been given by the Government, acting upon the settlement of 1957, in favour of the children of M.T. Joseph.
Hence, it could not be said that there was any patta of other document containing any condition to which Section 8 of the Act could apply.
We find, from the Judgment under appeal, that several questions, which have no real bearing on the rights of the parties, were: also. argued.
One of these questions was whether land could be acquired by adverse possession by the alienees of the allottees of the. land from the Government under the scheme for its reclama tion.
We fail to see how a question of adverse possession arises here when the Government itself recognises the rights of the children of M.T. Joseph in the pattas executed by it in their favour.
The High Court recorded the following findings about the Government acting on the terms of the settlement of 15th June, 1957, the correctness of which had not been challenged before us: "This settlement deed has been recognised by the Government mutation has been effected in the names of the children and pattas have also. been issued to them.
It has been further stated on behalf of the revision petitioners (the heirs of the said Joseph and those who took under the settlement deed dated 15.6.1957) that levy under the Kerala Rice and Paddy (Procurement by Levy) Order, 1966, has been collected from each of the shares under the deed of 1957, that land tax has been imposed on each of the shares sepa rately and agricultural income tax collected on the income of the properties of each of the sharers".
We do not think it is necessary to go into any other question.
The High Court was of opinion that some facts had still to be as 181 certained when the case goes back to the Land Board for proceeding on the footing determined by the High Court.
We think that we should make it clear that matters to.
be still determined could not, in view of our finding, involve deter mination of any question of adverse possession of the claimants, the children of M.T. Joseph.
For the reasons given above, we dismiss these appeals.
We make no order as to costs.
P.H.P, Appeals dis missed.

dataset_name: IN-Abs

summary:
Proceedings under section 145(1) of the Criminal Proce dure Code 1898 were going on between the parties.
The appellants filed affidavits before the Magistrate.
The said affidavits were not sworn before the Magistrate who was in seisin of the case but were sworn before some other Magis trate.
It was contended before the Magistrate by the re spondents that the said affidavits were not admissible in evidence.
The High Court held those affidavits to be inad missible.
Dismissing the appeal by special leave, HELD: (1) In the absence of any specific provision to the contrary in the Criminal Procedure Code the affidavits have to be sworn or affirmed in accordance with the provi sions of the Oaths Act, 1873.
Section 145(1) of the Code provides that the Magistrate making an order under it shall require the parties concerned in the dispute to attend his court in person or by pleader and to put in such documents or to adduce by putting in affidavits the evidence of such persons as they rely upon in support of their claim.
The affidavits contemplated by the sub section are, therefore, evidence for purposes of proceedings before the Magistrate concerned even though the Evidence Act does not apply to them.
[175G H] (2) There is no provision in the Code specifying the courts before whom the affidavits referred to in section 145 have to be sworn and affirmed.
The definition of affidavit in section 3(3) of.the only states that it shall include affirmation and declaration in the case of persons by law allowed to affirm or declare instead of swearing.
Section 4 of the Oaths Act reads as under: "4.
The following Courts and persons are authorised to administer by themselves or by an officer empowered by them in this behalf, oaths and affirmations in discharge of the duties or in exercise of the powers imposed or conferred upon them respectively by law : (a) all Courts and persons having by law or consent of parties authority to receive evidence;" It is clear that all Courts and persons having by law or consent of parties authority to receive evidence are autho rised to.
administer oaths and affirmations, but they can do so only where they are otherwise acting in the discharge of the duties or in exercise of the powers imposed or conferred upon them respectively by law.
In the present case the Magistrate concerned with the proceedings under section 145 of the Code was discharging the duties imposed and exercising the powers conferred by the Code and he alone could adminis ter the oaths and affirmations to the persons who made affidavits and not Magistrates who were not discharging any such duty or exercising any such power.
[176A H] Nandial Ghose vs Emperor AIR 1944 Cal. 283, Hemdan vs State of Rajasthan & Ors., AIR 1966 Raj. 5; Govind vs State and others AIR 1969 All. 405; Krishna Chandra Naik vs Sk.
Makbul and others AIR 1970 Orissa 309; Mahesh Thakur and others vs Lakshman Prasad Thakur and another (1971) 19 Bihar Law Journal 727 and State of Madhya Pradesh vs Trivedi Prasad (1971) XVI H.R. Law journal 1059 approved.
175 Ahmad Din vs Abdul Salem AIR and Shambhu Nath Chopra vs State AIR 1970 Delhi 210, over ruled.


judgement:
ivil Appeal No. 1020 of 1975.
(Appeal by Special Leave from the Judgment and Order dated the 18 4 1975 of the Maharashtra State Co op.
Appel late Court in Appeal No. 54 of 1975.) J. L. Nain, U. R. Lalit, and V. N. Ganpure, for the appel lant.
V.M. Tarkunde, Sharad Manohar, P.H. Parekh and Miss Manju Jetley, for respondent No. 1.
M.C. Bhandare, Mrs. section Bhandare, N.S. Narasimhan, K.C. Sharma, ,A. K. Mathur and ,4.
K. Sharma, for respondent No. 2. 343 The Judgment of the Court was delivered by RAY, C.J.
This appeal by special leave is from the judgment dated 18 April 1975 of the Maharashtra State Co operative Appellate Court.
The question for consideration in this appeal is whether a mortgagor can exercise his right of redemption after a mortgagee under an English Mortgage with power to sell mortgaged property without the intervention of the court gives notice to the mortgagor to sell the mortgaged property by public auction and sells it by public auction.
The appellant is the auction purchaser.
The respondents are Flora Co operative Housing Society in liquidation the mortgagors (hereinafter referred to as the Society) and the Maharashtra Co operative Housing Finance Society Ltd., the mortgagee (hereinafter referred to as the mortgagee).
In 1964 the Society was registered as a Housing Society with 12 members.
The paid up capital of the Society was Rs.21,000/ .
The Society wanted 12 flats to be constructed in one structure of ground and two upper floors.
The Society purchased plot No. 153 in Santa Cruz at Bombay, measuring 1002 sq. yards.
The price was Rs.1,02,000/ .
In 1966 the Society mortgaged the land and the incomplete structure in favour of the mortgagee.
The mort gage was for the sum of Rs.70,000/ .
It was an English mortgage.
In 1968 the mortgagee advanced a further sum of Rs.42,000/ .
In 1966 Fair Deal Builders entered into a contract with Society to build.
The work was stopped.
Thereafter in 1967 the Society entrusted the work to Maharaja Builders.
In 1968 the contract with Maharaja Builders was terminated.
The work was given in 1969 to Kamal Construction Company, who abandoned it in incomplete stage.
On diverse dates between 29 August 1967 and 29 November 1970, notice was given by the mortgagee to the Society for non payment to the mortgagor and to sell the property by public auction.
On 9 March 1971 the Assistant Registrar of Co opera tive Societies, Maharashtra, appointed a Special Liquidator of the Society under section 102 of Maharashtra Co operative Societies Act, 1960.
The Assistant Registrar communicated the order of appointment liquidator to the mortgagee on 22 April 1971.
The order of appointment of a liquidator was published in Maharashtra Government Gazette on 29 April 1971.
The mortgagee advertised through Government auc tioner for public auction of the property.
The public auction was held on 14 April 1971.
The claim was for Rs.1,22,888.22 paise.
The appellant was declared the highest bidder for Rs.1,31,001/ .
The terms of sale inter alia were that 25 per cent was to be paid in advance and the balance in 30 days.
The sum of Rs.33,000/ was paid as 6 1546SCI/76 344 25 per cent advance and the balance purchase price of Rs.98,001/was paid to attorneys of the mortgagee.
The auction purchaser took possession on 17 April 1971.
On 13 August 1971 the Society filed a dispute before the Officer on Special Duty under the Maharashtra Co operative Societies Act against the auction purchaser and the mortga gee for injunction against completing sale.
The Society obtained an ex parte injunction restraining transfer.
On 29 September 1971, the interim injunction was vacated.
Thereafter the Society filed an appeal against the said order before the Appellate Tribunal.
In the meantime the appellant filed a writ petition in the Bombay High Court under Article 227 of the Constitution.
On 16 June 1972 there was an interim order by the High Court in the writ petition.
The Society undertook not to dispose of property until disposal of dispute.
Both par ties were allowed to keep watchmen.
The Society borrowed a sum of Rs.1,31,000/ and paid the same to the mortgagee on 15 October 1972.
On 16 January 1975 the Officer on Special Duty delivered judgment.
He held that the dispute was maintain able under section 91 of the Maharashtra Co operative Socie ties Act.
The Society was held not competent to challenge the auction sale held on 14 April 1971.
It was also held that the validity of auction was not affected.
The mortgagee was held entitled to exercise power of sale as a secured creditor without being affected by the winding up order against the Society.
It was also held that the mortgagee did ' not commit any breach of the statutory provisions of section 69 of the .
The sale was pot vitiated.
It was found that there was no irregularity at the auction and there is no ground for setting aside the sale.
The society was entitled to redeem the proper ty because the conveyance was not complete.
The auction purchaser filed before the Maharashtra State Cooperative Appellate Court an appeal against the said order.
In appeal the plaint was allowed to be amended and prayer for redemption was allowed to be introduced.
On 18 April 1975 the Maharashtra State Cooperative Appellate Court dismissed the appeal and held that the dispute as initiated by the Society fell within the ambit of section 97 of the Maharashtra Cooperative Societies Act.
The Appel late Court further held that there was no complete sale within the meaning of section 69(3) of the and the equity of redemption was therefore not lost.
It was further held that the auction price was grossly inadequate.
The auction sale was not a sale after a fair competition.
The Mortgage Deed provided inter alia as follows : 345 "it is hereby agreed and declared that it shall be lawful for the mortgagees at any time without any further consent on the part of the mortgagors to sell the said mortgaged premises . .
The aforesaid power shall be deemed to be a power to sell or concur in selling the said mortgaged premises in default of payment of the mortgage money without the intervention of the court within the meaning of section 69 of the .
" Clauses (7), (8) and (33) in the Conditions of Sale may be referred to.
Clause (7) provided as follows.
Upon payment of the balance Of the purchase price, the purchaser shall be enti tled to a conveyance from the vendors.
The vendors shall in the conveyance of the property purchased by purchaser give the usual covenant required of a limited owner against encumbrances.
The vendors shall give no other covenant required of an absolute of full owner.
The vendors shall not be required to procure the consent of the mortgagors or of any other person in the conveyance.
Clause (8) was as follows.
After payment of the balance of the purchase money the purchaser shall be entitled to the rents and profits of the said property.
The vendors as the mortgagees are not in possession of the property and will not do anything to deliver possession of the proper ty to the purchaser.
The vendors as the mortgagees shall not be able to give vacant or symbolic possession of the property to the purchaser.
On payment of the balance of the purchase price the purchaser shall at his own cost be at liberty to take such steps as the purchaser may deem neces sary for obtaining possession of the property from the mortgagors.
Clause (33) provided as follows.
If the mortgagors shall deposit all the amounts due to the vendors as mortga gees in court or pay the same to the vendors or their attor neys between the date of sale and the completion thereof and if as a result thereof the vendors have to reconvey the property to them or if the vendors cannot thus proceed with the sale and the sale is not completed on that account the vendors shall return the said deposit to the purchaser without any interest and/or costs and the vendors as such mortgagees shall not be held liable for any damage.
Counsel for the appellant advanced these contentions.
First, under section 69 of the a mortgagor confers on the mortgagee a power of sale through Court Or without intervention of court.
The power of sale is of the entire legal estate of the mortgagor.
Second, when such a power is conferred it is agency coupled with interest under section 202 of the , the agency cannot be revoked without payment to mortgagee.
Third,if the power is acted upon revocation even on payment cannot nullify acts pursuant to powers.
Reliance was placed on sections 203 and 204 of the .
Fourth, if the act done pursuant to power is that the property is put up for sale and it is knocked down it is an act done by the mortgagee for mortgagor In 346 other words it is as if an act done by the mortgagor.
The, sale pursuant to the power is a subsequent act within the meaning and this subsequent act will extinguish the mortgagor 's right of redemption.
Fifth, in a suit for specific performance by auction pur chaser the purchaser will be entitled to specific perform ance because it is a sale by mortgagor.
Counsel for the appellant relied on two English deci sions.
These are: Waring (Lord) vs London and Manchester Assurance Co. (1), and Property & Bloodstock Ltd. vs Emer ton(2) in support of the propositions that the mortgagor 's right to redemption would be extinguished when the mortgagee exercised the power of sale and the third party entered into a binding contract to purchase the property.
The English decisions are based on the provisions of the English Law of Property Act.
The provisions create a statu tory power of sale, which gives to a mortgagee power to sell the mortgaged property, and it means that the mortgagee has power to sell out and out by private contract or by auction, and subsequently to complete the conveyance.
The English decisions are that if a mortgagee exercises power under section 100(1)(i) of the Law of Property Act, 1925, to sell the mortgaged property by public auction or by private contract it is binding on the mortgagor before completion unless it is proved that he exercised it in bad faith.
It was said in the Property & Bloodstock case (supra) that the contract for sale by the mortgagees to the pur chaser precludes the mortgagor from his right of redemp tion pending completion even if the property is sold subject to one or more conditions.
The English decision naturally notices distinction between condition precedent and the terms of contracts of sale, namely, conditions dealing with matters of title for carrying out the contract.
The mere fact that the label "condition" happens to be attached to conditions does not preclude its being in the latter catego ry of "condition" or matter of title.
The condition that the sale is subject to the reversioner 's licence being obtained where necessary. is held in the English decision to be commonly regarded as no more than a term of the contract relating to title.
The provisions in the relevant to the purpose of present appeal are sections 54, 60 and 69.
Under section 54 of the , sale is a transfer of ownership in exchange for a price paid or promised or part paid and partpromised.
Such transfer in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a rever sion or other intangible thing can be made only by a regis tered instrument.
A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties.
An English Mortgage is defined in section 58(e) of the .
Where the mortgagor binds himself to repay the mortgage money on a certain date, and transfers the mortgaged pro (1) (1935) Chancery 310.
(2) (1968) L.R. Chancery 94.
347 perty absolutely to the mortgagee, but subject to a proviso that he will retransfer it to the mortgagor upon payment of the mortgagemoney as agreed, the transaction is called an English mortgage.
The Rights and Liabilities of Mortgagor are dealt with in section 60 of the .
It is that at any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgagemoney, to require the mortgagee (a) to deliver to the mortgagor the mortgage deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee, (b) where the mortgagee is in possession of the mortgaged property to deliver possession thereof to the mortgagor and (c) at the cost of the mortgagor either to re transfer the mortgaged property to him or to such third person as he may direct, or to execute and to have registered an acknowledgement in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished.
There is a proviso that the right conferred by this section has not been extinguished by the act of the parties or by decree of a Court.
The right conferred by section 60 of the Trans fer of Property Act is called a right to redeem.
Therefore, the said section 60 provides for a right of redemption provided that the right has not been extinguished by the act of parties.
Section 69 of the deals with mortgagees ' power of sale.
Under the said section 69(1)(c), a mortgagee has power of sale without the intervention of the Court where power is conferred by the mortgage deed and the mortgaged property or any part thereof was on the date of the execution of the mortgage deed, situate within the towns of Calcutta, Madras, Bombay or in any other town or area which the State Government, may, by notification in the official Gazette, specify.
The principal question in this appeal is whether the right to redemption has been extinguished by any act of the parties.
The English decisions are based on the provisions of the Law of Property Act, 1925.
In England sale is ef fected by the contract of sale, and in India an agreement for sale is not a sale or transfer of interest.
In England, a mortgagee gets an equitable interest in the property.
Under the English doctrine a contract of sale transfers an equitable estate to the purchaser.
The Court does not assist the mortgagor by granting him a remedy unless there is collusion on the part of the mortgagee.
In India there is no equity or right in property created in favour of the purchaser by the contract between the mortgagee and the proposed purchaser.
In India, there is no distinction between legal and equitable estates.
The law of India knows nothing of that distinction between legal and equitable property in the sense in which it was under stood when equity was administered by the Court of Chan cery in England.
Under the Indian law, there can be but one owner that is, the legal owner.
See Rani Chhatra Kumari vs Mohan Bikram (1) (1) (1931) 58 I.A. 279.
348 A contract of sale does not of itself create any inter est in, or charge on, the property.
This is expressly declared in section 54 of the .
See Rambaran Prasad vs Ram Mohit Hazra(1) & Ors.
C) The fidu ciary character of the personal obligation created by a contract for sale is recognised in section 3 of the and in section 91 of the Trusts Act.
The personal obligation created by a contract of sale is de scribed in section 40 of the as an obligation arising out of contract and annexed to the owner ship of property, but not amounting to, an interest or easement therein.
In India, the word "transfer" is defined with reference to the word "convey".
The word "transfer" in English law in its narrower and more usual sense refers to the transfer of an estate in land.
Section 205 of the Law of Property Act in England defines: "Conveyance" includes a mortgage, charge, lease, assent, vesting declaration, vesting instru ment.
The word "conveys" in section 5 of the transfer of Property Act is used in the wider sense of conveying owner ship.
The right of redemption which is embodied in section 60 of the is available to the Mortga gor unless it has been extinguished by the Act of parties.
The combined effect of section 54 of the Transfer of Proper ty Act and section 17 of the Indian Registration Act is that a contract for sale in respect of immovable property of the value of more than one hundred rupees without registration cannot extinguish the equity of redemption.
In India it is only on execution of the conveyance and registration of transfer of the mortgagor 's interest by registered instru ment that the mortgagor 's right of redemption will be extin guished.
The conferment of power to sell without interven tion of the Court in a Mortgage Deed by itself will not deprive the mortgagor of his right to redemption.
The extinction of the right of redemption has to be subsequent to the deed conferring such power.
The right of redemption is not extinguished at the expiry of the period.
The equity of redemption is not extinguished by mere contract for sale.
The mortgagor 's right to redeem will survive until there has been completion of sale by the mortagee by a registered deed.
In England a sale of property takes place by agreement but it is not so in our country.
The power to sell shall not be exercised unless and until notice in writing requir ing payment of the principal money has been served on the mortgagor.
Further section 69(3) of the Transfer of Proper ty Act shows that when a sale has been made in professed exercise of such a power, the title of the purchaser shall not be impeachable on the ground that no case had arisen to authorise the sale.
Therefore, until the sale is complete by registration the mortgagor does not lose right of redemp tion.
It is erroneous to suggest that the mortgagee is acting as the agent of the mortgagor in selling the property.
The mortgagor exercises his right under a different claim.
The mortgagee 's right is different from, (1) ; 349 the mortgagor 'section The mortgagee exercises his right under a totally superior claim which is not under the mortgagor, but against him.
In other words, the sale is against the mort gagor 's wishes.
Rights and interests of the mortgagor and the mortgagee in regard to sale are conflicting.
In view of the fact that only on execution of convey ance, ownership passes from one party to another it cannot be held that the mortgagor lost the right of redemption just because the property was put to auction.
The mortgagor has a right to redeem unless the sale of the property was complete by registration in accordance with the provisions of the Registration Act.
The decision in Abraham Ezra Issac Mansoor vs Abdul Latiff Usman(1) is correct law that the right to redeem a mortgage given to a mortgagor under section 60 of the , is not extinguished by a contract of sale of the mortgaged property entered into by a mortga gee in exercise of the power of sale given to him under the mortgage deed.
Until the.
sale is completed by a registered instrument, the mortgagor can redeem the mortgage on payment of the requisite amount.
The Madras decision reported in Meenakshi Velu & Ors.
vs Kasturi Sakunthala & Ors.(2) on which counsel for the appellant relied is contrary to the view expressed in Ellappa Naiker and others vs Sivasubramania Maniagaran,(3) and the aforesaid Bombay decision.
We are entirely in agreement with the Bombay decision.
The Madras decision Meenakshi Velu & Ors.
vs Kasturi Sakun thala & Ors.
(2) which holds a contrary view on which coun sel for the appellant relied is wrong.
For the foregoing reasons, the appeal is dismissed with costs to respondent no 1.
P.H.P. Appeal dismissed.
(1)I.L,R, (2) 1.1 .R, (1967) 3 Madras 161.
(3) (1936) 71 Madras Iaw Journal 607.

summary:
In 1964, respondent No. 1 Society was registered as a Housing Society.
The Society wanted 12 plots to be con structed for its 12 members.
The Society, therefore, pur chased a plot of land.
In 1966, the Society mortgaged the land and the incomplete structure in favour of respondent No. 2.
In March, 1971, the Special Liquidator of the Socie ty was appointed under section 102 of the Maharashtra Co operative Societies Act, 1960.
The mortgagee after demand ing the dues from the mortgagor advertised the public auc tion for the sale of the property.
In the auction sale the appellant was declared as the highest bidder.
The auction purchaser took the possession of the land and the incomplete structure.
Society filed a dispute before the Officer on Special Duty under the Maharashtra Co operative Societies Act against the auction purchaser and the mortgagee praying for an injunction against the completion of the sale.
The Society in the meanwhile paid the mortgage money to the mortgagee.
The Officer on Special Duty delivered his judg ment in January 1975 and held that the Society was entitled to redeem the property because the conveyance was not com plete.
The appellant filed an appeal before the Maharashtra State Co operative Appellate Court.
In the appeal, plaint was allowed to be amended and a prayer for redemption was allowed to be introduced.
The appellate Court held that there was no complete sale within the meaning of section 69(3) of the and the equity of redemption was, therefore, not lost and that the auction price was grossly inadequate and that the sale was not after a fair competition.
One of the conditions of auction sale was that if the mortgagor deposited the mortgage money in court between the date of the sale and completion thereof and if as a result thereof the mortgagee was to reconvey the property to the mortgagor the auction purchaser Would be entitled to the refund of the amount paid without any inter est and/or cost.
In an appeal by Special Leave the appellant contended: (1) When under section 69 of the a mortgagor confers on the mortgagee a power of sale through court or without intervention of court, the power of sale extends to the entire legal estate of the mortgagor.
(2) When such a power is conferred it is agency coupled with interest under section 202 of the .
If the power is acted upon revocation even on payment of mortgage money cannot nullify acts already done pursuant to the said powers.
(3) Knocking down at an auction sale by the mortgagee pursuant.
to the power of sale extinguishes the mortgagor 's right of redemption.
(4) In a suit for specific performance by auction pur chaser, the purchaser will be entitled to specific perform ance because it is a sale by mortgagor.
Dismissing the appeal, 342 HELD: (1) Under section 69(1)(c) a mortgagee has power to sell without intervention of the court where power is con ferred by the mortgage deed and the mortgaged property or any part thereof was on the date of the execution of the mortgage deed situated in certain big towns.
[347D E] (2) In India the word "transfer" is defined with refer ence to the word ,"convey".
The word "transfer" in English law in its narrower and more usual sense refers to the transfer of an estate in the,land.
Section 205 of the Law of Property Act in England defines "conveyance as including mortgage, charge, lease, assent vesting declara tion, vesting instrument".
The word "conveys" in section 5 of the and section 17 of the Indian Registration Act is that contract for sale in respect of immovable property of the value of more than Rs.100 without registration cannot extinguish the equity of redemption.
In India it is only on execution of the conveyance and regis tration of transfer of the mortgagor 's interest by regis tered instrument that mortgagors right of redemption will be extinguished.
The conferment of power to sell without intervention of the Court in a mortgage deed by itself will not derrive the mortgagor of his right to redemption.
The extinction of the right of redemption has to be subsequent to the deed conferring such power.
The right of redemp tion is not extinguished at the expiry of the period.
The equity of redemption is not extinguished by mere contract for sale.
[348B, D E] Abraham Ezra Issac Mansoor vs Abdul Latif Usman I.L.R. 1944 Bombay 549, approved.
Meenakshi Velu & Ors.
vs Kasturi Sakunthala & Ors.
I.L.R. , overruled.
Ellappa Naiker and Ors.
vs Sivasubramania Manisaran , approved.
(3) Under the English doctrine, a contract of sale transfers an equitable estate to the purchaser.
In India there is no equity or right in property accrued is favour of the purchaser by the contract between the mortgagee and the proposed purchaser.
In India there is no distinction be tween legal and equitable estates.
In India there can be but one owner i.e. legal owner.
[347G H] Rani Chhotra Kumari vs Mohan Bikram (1931) 58 I.A. 279 and Rambaran Prasad vs Ram Mohit Hazra & Ors.
(1967) I SCR 293, followed.
(4) Under section 100(1)(i) of the Law of Property Act, 1925, if a mortgagee exercises power to sell the mortgaged proper ty by public auction or by private contract it is binding on the mortgagor before completion of the sale unless it is proved that the power was exercised in bad faith.
The English decisions are based on the said provision of the English Law of Property ,Act and, therefore, they are not applicable to India.
[346 B D] Waring (Lord) vs London and Manchester Assurance Co. (1935) Chancery 310 and Property & Bloodstock Ltd. vs Emer ton (1968) L.R. Chancery 94 distinguished.


judgement:
Civil Appeal No. 424 1971.
Appeal from the Judgment and Order dated the 22 2 1971 of Madras High Court in W.P. No. 3125 of 1970.
M. Natesan, and (Mrs).
section Gopalakrishanan, for the Appel lant.
K.S. Ramamurthi, A. T.M. Sampath, M.M.L. Srivastava and E.C.Agarwala, for Respondent No. 1.
The Judgment of the Court was delivered by KRISHNA IYER, J.
This appeal, without any merit, deserves to be dismissed without much ado.
The few facts of the case are that the appellant and the respondent, both operators Of stage carriages, applied for a permit on an 86 Km.
route.
Marks were awarded to both under the relevant Motor Vehicles Rules to settle their compara tive merit.
The appellant secured 8.79 marks and the re spondent 12.08.
The latter thus secured an easy arithmeti cal victory over the former and the sense of the scheme would have ordinarily led to the award of the permit to the respondent.
However, the Road Transport Authority preferred the candidate with the lesser marks on the compassionate ground that the rival with the larger marks had already got a permit a couple of months before, on an overlapping route of 53 Km.
On appeal, the Appellate Tribunal set aside this award and granted 10 1546 SCI/76 408 the permit to the one who had more merit.
This has been affirmed throughout, repelling the challenge by writ peti tion.
The aggrieved appellant contends that his permit should not have been set aside, the ground being that the respondent had got an earlier permit on a part of the route.
We are not persuaded about this ground being good.
Permits cannot be equated with distribution of patron age.
We must remember that public interest is at stake when public transport services are operated.
The scheme of the statute, viz., the is that he who can serve the travelling public best, is to be chosen as the permit holder.
Considerations of grace, charity and compas sion at the expense of public interest are an act of unfairness to the Act.
The conclusion, therefore is that the appellant 's claim was rightly rejected and the respond ent 's award was rightly made.
We dismiss the appeal but in the circumstances without costs.
P.H.P. Appeal dis missed.

summary:
The appellant and the respondent applied for a permit of stage carriages.
The respondent secured higher marks than the appellant.
The Road Transport Authority preferred the appellant on the compassionate ground that the respondent already had another permit on a route which was partly over lapping over the route in question.
On an appeal the Appellate Tribunal set aside the order of the Transport Authority and granted the permit to the respondent.
Dismissing the appeal, HELD: Permits cannot be equated with distribution of patronage.
Public interest is at stake when public trans port services are operated.
The scheme of the Motor Vehi cles Act and the Rules is that he who can serve the travel ling public best is to be chosen as the permit holder.
Considerations of grace, charity and compassion at the expense of public interest are an act of unfairness to the Act.
[408B C]