judgement:
Appeal Nos. 1173 to 1175 of 1976.
Appeals by Special Leave from the Judgment and Order dated the 1 3 1975 of the, Bombay High Court (Nagpur Bench) in Special Civil Application No. 695 of 1971.
L.N. Sinha, Sol Genl., M.N. Shroff for the Appellants in CA 1173/76 for R. 3 in C.A. 1174/76 and 1175/76.
M.N. Phadke, V. M. Phadke and ,4.
G. Ratnaparkhi for RR.
J. and 2 in CA 1173/76 and CAs.
1174 75/76.
Nilofer (Mrs.).Bhagwat, S.C. Agrawal and V. J. Fran cis for R. 5 in C.A. 1174 and 1175/76.
V.J. Francis for RR.
No. 6 in CA 1175/76.
The Judgment of the Court was delivered by SINGHAL J.
These appeals arise out of a judgment of the Bombay High Court dated March 11, 1975, by which the High Court quashed that part of Government resolution dated January 15, 1970, "which holds that the respondents Nos.
3 to 5 should not be compelled to go back to their respective lists.
and which gives a further option to these three respondents to indicate whether they wanted to go back to the department of History.
" The High Court has further held that the writ petitioners will be entitled to be considered for promotion to Class I posts in the department of Politi cal Science and the seniority of respondents Nos. 3 to 5 "will be considered in the seniority list relating to the Department of History".
The controversy arose because of a writ petition filed by Bhalchandra Khanderao Joshi and Padmakar Siddhanath Kane.
Both of them were members of the Maharashtra Educational Service, Class II (Collegiate Branch).
Bhalchandra Khande rao Joshi was M.A. in Political Science as well as in History.
He was appointed Lecturer in Political Science in 1958, and was confirmed in that capacity.
Padmaliar Siddhanath Kane passed M.A. Examination in Political Science in 1956 and was appointed Lecturer in Political Science in 1958.
He was also confirmed on that post.
Both of them filed a writ 784 petition and challenged the resolution of the State Govern ment, in the Education and Social Welfare Department, No. SCP No. 1064 D dated January 15, 1970, in pursuance of which respondents Smt.
K.A. Parekh, S.A. Bari and Smt.
R.S. Dossal were promoted as Professors of Political Science and were given the option to opt for the History or the Political Science department.
It may be mentioned that after the reorganisation of States, a combined seniority list was prepared on November 1, 1956, for History and Political Science teachers.
In that list respondent No. 3 was; shown at serial No. 3, and respondent No. 4 at serial No. 5.
One S.R. Nanekar was appointed as Lecturer in Political Science on June ' 26, 1954.
Respondents Nos. 3 and 5 were M.A. in History.
It was not disputed in the High Court that Political Science was not a separate subject until 1956, in Bombay, because out of the eight papers for post graduation in History, four were in Political Science.
K.A. Parekh was M.A. in History and was recruited as Lecturer on August 5, 1946.
She however taught both History and Political Science upto 1963, when she was appointed officiating Professor of Political Science on February 27, 1963.
Dr. S.A. Bari was recruited as Lecturer in History on October 1, 1947.
He was thereafter promoted as Professor in that subject.
M.G. Sonnal, who. was M.A. in History, was appointed as Professor of Political Science.
R. S, Dassal was recruited as Assistant Lecturer in History on August 5, 1946, and taught both History and Political Science upto 1956.
Thereafter she taught only Political Science, and was promoted as Profes sor in that subject in 1968.
She was confirmed in that capacity in 1972.
These facts are quite sufficient for purposes of the present appeals.
The controversy relates to the question whether the Director of Education, Maharashtra State, had the authority to issue the letter dated August 20, 1963, which was ad dressed to all the Principals of he Government Colleges.
It was stated by the Director in that letter as follows, "It has been decided to amalgamate the two lists of lecturers in 'History ' and 'Political Science ' and to combine the two lists under the common subject of 'History ' and 'Political Science '.
The revised seniori ty list so prepared is enclosed herewith.
Please bring this decision of Government to the notice of the officers concerned.
" The Director thus conveyed the decision to amalgamate the lists .of
Lecturers in History and Political Science and to prepare a single seniority list for both the subjects.
It was expressly stated in the letter that it had been issued in pursuance of the decision of the State Government.
A revised seniority list was therefore prepared in which respondent No. 3 was placed at serial No,. 4, respondent No. 4 at serial No. 5, and S.R. Nanekar at serial No. 7.
Nanekar challenged that order in the High Court by Special Civil Application No. 120 of 1964, mainly on the ground that when two separate seniority lists had been prepared for the.
departments of History and Political Science, 785 in accordance with the earlier Government Order of 1960, the new list was invalid.
The High Court however took the view that the existence of the Government resolution dated February 27, 1963, which was said to be the authority for the issue of the Director 's letter dated August 20, 1963, had not been proved.
It therefore held that there was no such resolution or order requiring the preparation of a combined seniority list.
It decided that the earlier order of 1960, requiring the preparation of separate lists for History and Political Science, continued to be opera tive and that as Nanekar could not claim to be the senior most person in his department, he had no cause of action.
It therefore dismissed the writ petition.
The High Court, in the present case, went by the deci sion in Nanekar 's case, and held that there was no order or decision dated February 27, 1963, so that the action of amalgamating the lists of History and Political Science departments was invalid.
The High Court made a reference to the Director 's letter dated July 27, 1967 asking the Principals to forward information in the prescribed pro forma in respect of those Professors and Lecturers of Histo ry in their respective colleges who were qualified to teach Political Science and had been recognised therefore.
It also made a reference to the impugned resolution dated January 15, 1970 which reads as follows, "A decision was taken by Government in the year 1963 to amalgamate the lists of Lecturers in 'History ' and Lecturers in 'Political Science ' into one common list of Lecturers in 'History and Political Science '.
According ly, a combined seniority list was prepared with reference to the date of appointment of the officer concerned in the M.E.S. Class 11, irrespective of the fact as to whether the Lecturers are qualified in both the subjects of "History" and "Political Science" or in any one of the two.
The decision to amalgamate the two lists into one was taken because it was noticed that some of the Lecturers in the seniority list of the subject "History" also possessed the qualifications in the subject "Political Science".
Similarly, some of the Lecturers in "Political Science" possessed the qualifications in "History".
But they were not considered eligible for appointment to a post of Professor in a subject other than the subject under which their names were included in the seniority list of their subject.
In order to remove this anomaly, decision to amalgamate the seniority lists of Lecturers in "History" and "Political Science" and to make appointment to the posts of Professors on the basis of the combined seniority list in the subjects of "History" and "Political Science" was taken by Government.
However, in view of the difficulties experienced with regard to the implementation of the decision of Government referred to above, Government on reconsideration decided in the year 1967 to revert to the old practice of having separate seniority lists of Lecturers for the two subjects.
, 'History ' and 'Political Science '.
786 2.
Some of the teaching members of the Department of History brought to the notice of Government that in the western Maharashtra formerly there were no separate posts for Political Science as "Political Science" did not exist as distinct subject.
All teachers were designated as Lecturers/ Professors in History, but they used to teach the subject "Political Science" also.
The question of giving option to those Lecturers/Professors, who were qualified to teach both, the sub jects, viz., "History" and "Political Science" and recognised as such, to elect either of the two subjects, was under consideration of Government for some time past.
While re verting to the decision to split up the combined seniority list of "History and Polit ical Science", Government considers that those who were promoted to the posts of professors on the basis of the combined seniority list should not be compelled to go back to their respective .lists.
Government has now decided that an option should be given to those Lecturers/Professors of the Old Bombay State, who were recruited as Lecturers/Professors of History but have been recognised as teachers of Political Science and also those who have been promoted to the posts of Professors in M.E.S.C. II (Collegiate Branch) on the basis of the combined seniority list, to elect either of the two Departments, viz. 'Histo ry ' or 'Political Science '.
Accordingly the concerned Lecturers/Professors were asked to exercise" their option.
The following offi cers have opted for their being treated as belonging to the Department of Political Science: (i) Smt.
K.A. Parekh, Officiating Profes sor of Political Science, I. Y. College, Jogeshwari.
(ii) Shri S.A. Bari, Officiating Profes sor of History, Government Arts and Science College, Aurangabad.
(iii) Smt.
R.S. Dossal, Officiating Pro fessor of Political Science, Elphistone Col lege, Bombay.
The option exercised by these officers have been accepted by Government and their senior ity in the Department of Political Science should be as shown in the accompanying state ment." (Emphasis added).
It therefore gave option to respondents Nos.
3 to 5 to go back to the department of History or not, and stated further that the option had been accepted and their seniority finalised in the Political Science department.
It is this resolution of the Government dated January 15, 1970 which has been challenged in the present petition.
The reason is that if respondents Nos. 3 to 5 had not been, given the option to continue in the Political Science department, the petitioners would have been promoted to a Class I Post.
They have stated that they would then not have been deprived of that chance in violation of article 16 of the Constitu tion.
787 Respondents Nos. 4 and 5 did not enter appearance in the High.
Court, but it was urged on behalf of respondent No. 3 that in view of the curriculam for the Master 's degree in History, upto 1956, a person obtaining the Master 's degree in History was equally qualified to teach Political Science.
It was also urged that the respondent taught Political Science and had been recognised by the University as a teacher of Political Science.
The High Court examined the effect of the Government resolution dated January 15, 1970, and held that in the absence of the earlier resolution dated February 27, 1963, the Director of Education was not compe tent to combine or amalgamate the seniority lists of the History and Political Science departments.
It assumed that "legally there was no amalgamation at all and any action taken on the basis of such amalgamation would also consequently have to fall on the ground." In that view of the matter, the High Court held that promotions were not permissible on the basis of the combined list.
It accord ingly held that the Government resolution dated January 15, 1970 proceeded on a "misapprehension" that the respondents.
had been promoted as Professors on the basis of the combined seniority list, which was itself invalid.
The High Court 'held that there was "no valid reason why persons who were qualified in the Department of Political Science itself could be prevented from having their names considered for the post 'of Professor in Class I." That led: the High Court to hold further that the option which was given by the resolution dated January 15, 1970 had the effect of perpetu ating the effect of the working of the invalid list, and amounted to violation of article 16 of the Constitution.
This is why the State of Maharashtra, Smt.
K.A. Parekh and Smt.
R.S. Dossal have come up in appeal by special leave to this Court.
The controversy therefore is whether the State govern ment passed.
the aforesaid resolution dated February 27, 1963, to amalgamate the lists of Lecturers in History and Political Science, as stated in the Director 's aforesaid letter dated August 20, 1963, or whether there was no such resolution and the Director 's order was unauthorised ? The High Court has taken the view that as no attempt was made to produce the resolution dated February 27, 1963 in Nanekar 's case, there was no such, resolution at all.
On that basis, it held that the Director had no authority to take the decision to amalgamate the lists.
We find however that in taking that view ' the High Court lost sight of the intrinsic evidence which was available on the record, to prove beyond doubt that Government had passed the aforesaid resolution dated February 27, 1963, to amalga mate the two lists.
We have extracted the Government reso lution dated January 15, 1970 and the underlined portions thereof clearly show that the Government itself reiterated the fact that "a decision was taken by Government in the year 1963 to amalgamate the lists of Lecturers in "History" and Lecturers in "Political Science" into one common list of Lecturers in "History and Political Science".
" It has further been stated in that resolution of the Government that "accordingly, a combined seniority list was prepared with reference to the date of appointment of the 788 officer concerned in the M.E.S. Class 11, irrespective of the fact as to whether the Lecturers are qualified in both the subjects of 'History ' and 'Political Science ' or in any one of the two".
The reason for taking that "decision to amalgamate the two lists" has also been stated in the reso lution.
Then it has been stated that in ':view of the difficulties experienced with regard to the implementation of the decision of Government referred to above," the Government "on reconsideration" had decided to revert to the old practice of having separate seniority lists of Lecturers of History and Political Science.
It has also been stated that the decision had been taken for "reverting to the decision to split up" the combined seniority list which formed the basis of promotion of some of the teachers.
It would thus appear that the resolution dated January 15, 1970, repeatedly refers to the earlier decision of the State Government of 1963 for amalgamating the lists, states the reason for the amalgamation, makes a mention of the diffi culties experienced in the implementation of that decision, and gives the reasons for the government 's decision to, revert to the old practice of having separate seniority lists.
As it was not challenged in the High Court that the resolution dated January 15, 1970 was genuine, the High Court should have taken notice of its intrinsic evidentiary value for the purpose of proving the earlier resolution dated February 27, 1963.
If it had done so, it would have inevitably reached the conclusion that the Government had really decided in 1963 to amalgamate the lists, and that the Director had rightly conveyed that decision in his order dated August 20,1963, and it was therefore an authorised communication.
In fact the Director specifically stated in that order that the "decision of Government" to amalgamate the two lists had to be.
brought to the notice of all concerned.
The combined seniority list was therefore fully authorised, and there was nothing wrong if it formed the basis of the promotions which were given to the persons mentioned above.
We have no doubt that the High Court did not read the relevant document carefully and that was why it arrived at a contrary conclusion.
The resolution dated January 15, 1970 shows that as the Government had decided to split up the seniority list for the department of ' History and Political Science, it thought it desirable to.
give an ".option" to those Lecturers/Pro fessors of the old Bombay State, who were recruited as Lecturers/Professors of History, but were recognised by the University as teachers of Political Science, to elect for either of the two departments.
No exception can be taken to that decision to give ' the option to the Lecturers/Pro fessors concerned for, in the absence of such an option, they would have been deprived of the opportunity of express ing their desire to serve in the one or the other department on the basis of their experience and prospects of promotion.
It was to be appreciated that the decision to amalgamate the seniority lists of the two departments was not taken in consultation with them, and if they were required to.
teach History, or Political Science, and were promoted as Profes sors of History or Political Science, on the basis of a combined seniority list for which.
they themselves were not responsible, it would have been unfair if they had been required to serve in another department by a unilateral executive fiat.
789 It may be mentioned that Mr. Phadke tried to argue that even if the resolution dated January 15, 1970 were held to be valid, it would not be permissible for the teachers concerned to take advantage or ' it because they did not fulfill its. requirements.
We do not find any merit in this argument.
As has been stated, those teachers were promoted to posts of Professors on the basis of the combined list, they were ,recognised as such teachers by the Univer sity, and were recruited initially as Lecturers in History.
They were therefore entitled to take the benefit of the resolution dated January 15, 1970, as there is nothing wrong with it.
We have no doubt that in the facts and circum stances mentioned above, there could be no justification for the view taken by the High Court that there was violation of article 16 of the Constitution.
The appeals are allowed, the impugned judgment of the High Court dated March 11, 1975 is set aside and the writ petition is dismissed.
The State of Maharashtra will pay the costs of respondents Nos. 1 and 2 (Bhalchandra K. Joshi and Padmakar Sidharath Rao) in Special Leave Petition No. 915 of 1976, as directed by this Court October 8, 1976.

summary:
After the reorganisation of the States a separate sen iority list was prepared by the State of Bombay for History and Political Science teachers.
On 20.8.1963, the Director of Education issued a letter conveying the decision of Government to amalgamate the list of lecturers in History and Lecturers in Political Science and to prepare a single seniority list for both the subjects.
It was expressly stated in the letter that it was issued in pursuance of the decision of the State Government.
Thereafter a revised seniority list was prepared.
One Nanekar filed a writ petition in the High Court challenging the said order on the ground that when two separate seniority lists had been prepared for the departments of History & Political Science in accordance with the earlier Government Order of 1960.
the new list was invalid.
The High Court took the view that the existence of the Government resolution dated 27.2.1963, which was said to be the authority for the issue of Direc tor 's letter dated 20.8.1963, had not been proved.
It therefore held that there Was no such resolution or.
order requiring the preparation of a combined seniority list.
It decided that the earlier order of 1960 requiring the prepa ration of separate list of History and Political Science continued to be operative.
It however dismissed the writ petition filed by Nanekar on the ground that he could not claim to be the seniormost person in his department In the present writ petition filed by B.K. Joshi and P.S. Kane the High Court followed its decision in Nanekar 's case and held that there was no order or decision dated 27.2.1963 so that the action of amalgamating the list of ' History and PoLit ical Science departments was invalid.
A resolution was taken on 15.1.1970 in which it was mentioned that the earli er decision to amal gainate the two categories was given up on account of the difficulties which were experienced and an option was given by the 1970 resolution in order to obviate those difficulties.
That resolution was challenged in the present proceedings.
The High Court examined the effect of the Government Resolution dated 15.1.1970 and held that in the absence of the earlier resolution dated 27.2.1963 the Director of Education was not competent to combine or amal gamate the seniority lists of History and Political Science Departments.
It assumed that legally there was no amalga mation at all and any action taken on the basis of the amalgamation would also consequently have to fall on that ground.
The High Court held that the option given by the 1970 resolution had the effect of perpetuating the effect of the working of the invalid list and amounted to violation of article 16 of the Constitution.
The High Court held that in Nanekar 's case no attempt was made to produce the resolution of 27.2.1963: Allowing the appeals, Held: 1: The High Court erred in observing that the resolution of 27.2.1963 did not exist.
The High Court lost sight of the intrinsic evidence which was available on the record to prove beyond doubt that Government had passed the resolution on 27.2.1963 to amalgamate the two lists.
In the 1970 resolution, the Government itself reiterated the act that a decision was taken by Government in the year 1963 to amalgamate the lists of Lecturers in History and the Lecturers in Political Science into one common list.
The reason for taking that decision to amalgamate the two lists was also stated in that resolution. ' In fact the 1970 reso lution made a mention of the difficulties experienced in working the 1963 resolution and that was why it was decided to revert to the decision to split up the combined seniority 'list which formed the basis of promotion of some of the teachers.
As the genuineness of the resolution of 1970 was 783 not challenged, the High Court ought to have taken notice of its intrinsic evidentiary value for the purpose of proving the earlier resolution of 1963.
In fact the Director in his order specifically stated that the decision of the Government to amalgamate the two lists had to be brought to the notice of all concerned.
The combined seniority list, was therefore fully authorised and there was nothing wrong if it formed the basis of the subsequent promotions.
[787 G H, 788 A E] 2.
No exception could be taken to the decision of the Government to give option to the Lecturers to elect either of the two departments.
The decision to amalgamate the seniority lists of the two departments was not taken in consultation with them and if they were required to teach History or Political Science and were promoted as Professor of History or Political Science on the basis of combined seniority list for which they themselves were not responsi ble, it would have been unfair if they had been required to serve in another depart.meat by a unilateral executive fiat.


judgement:
Appeal No. 129 of 1968, Appeal by Special Leave from the Judgment and Order dated the 18 8 66 of the Bombay High Court in S.C.A. No. 1299/67 and Civil Appeal No. 2007 of 1969 From the Judgment and Order dated the 18th, 20th June 1968 of the Bombay High Court in S.C.A. No. 1676 of 1964.
and Special Leave Petition (Civil) No. 3175/75 From the Judgment and Order dated the 31 10 74 of the Bombay, High Court in Special Civil Appln.
No. 2610 of 1970.
V.M. Tarkunde, V.N. Ganpule and P.C. Kapoor for the appellant in C.A. 129 of 1968.
S.N. Anand for Respondent No. 1 in CA 129/68 V.N. Ganpule for the Petitioner in SLP S.B. Wad and R.N. Nath for the Appellants in CA 2007 of 1969.
R.B. Datar and S.C. Agarwal for Respondent No. 1 in CA 2007/ 69 The Judgment of the Court was delivered by KRISHNA IYER, J.
These two appeals raise a short issue of interpretation of the proviso to section 32F (1) (a) of the Bombay Tenancy and Agricultural lands Act, 1948 (Bombay Act LXVII of 1948) (hereinafter referred to as the Act).
The appellants in both the cases are the aggrieved landlords, the tenants ' right of purchase under the Act having been upheld by the High Court.
The correctness of this view is canvassed ,before us by counsel.
The facts necessary to appreciate the rival contentions may be are different but the issue is identical and, stated briefly.
The parties so a single judgment will dispose of both the appeals.
680 In Civil Appeal No. 2007 of 1969 the widow of a deceased landowner, one Dattatraya, is the appellant.
The deceased owned several houses, had a money lending business and considerable agricultural lands.
He left behind him on his death in 1952 a widow (the second appellant) and two sons, one of whom is the first appellant.
Admittedly the Act, an agrarian reform measure, was extensively amended by Bombay Act XIII of 1956 conferring great rights on tenants and inflicting serious mayhem on landlordism.
The case of the appellants is that there was a partition among the mother and the two sons of the agricultural estate whereunder the second appellant (the widow) was allotted around 80 acres of land out of which about 15 acres were held by the first respondent as a tenant, On the Tillers, Day tenants, bloomed into owners by the conferment of the right of pur chase.
On the basis that the first respondent had become the owner, a proceeding for the determination of the pur chase price of these lands was initiated? by the Tribunal, as provided under section 32G of the Act.
Although notice was not given to the second appellant, the first appellant appeared before the Tribunal, urged the case that the land held by the first respondent.
was set apart in a family partition to his mother, the second appellant, and.
that since she was a widow she came squarely within the protec tive provision of the proviso to cl.
(a) of section 32F(1 ) of the Act.
The first respondent, however, contested the partition and further pressed the plea that even if the agricultural ' lands had been divided since the house and the money lending business and other assets admittedly remained ' joint, the appellant was ineligible to claim the benefit of the proviso aforesaid.
We need not trace the history of the litigation from deck to deck but may conclude the story for the present purpose by stating that the High Court took the view that the second appellant (widow did not qualify under the said proviso: "The proviso is not satisfied ' unless the share of a disabled person is separated by metes and bounds in all of the joint family property and ' unless the agricul tural land allotted to him corresponds to his share in the entire property and is not in excess thereof.
" This was the construction put by the Court on the proviso and chal lenged before us by Shri Wad in C.A. 2007 of 1969 and by Shri Tarkunde in C.A. 129 of 1968.
In Civil Appeal No. 129 of 1968 the legal scenario is similar.
The family owned lands and other assets and there was a partition on November 7, 1956 confined to agricultural land only, but the house property remained undivided.
The partition deed shows that the land under the tenancy of the first respondent has been set apart to the share of a minor appellant.
The Tillers ' Day arrived '.
The tenant claimed to have become owner.
Proceedings under section 32G of the Act for determination of ' the compensation were commenced and the mantle of protection of the proviso to section 32F (I) (a) was pleaded in vain.
The High Court having negatived the land lord 's contention summarily, this Court has been approached, the point urged being the same as in the previous appeal.
In both the appeals we my proceed, for testing the legal pro.
position, on assumed facts.
We may take it that there was a parti 681 tion in both cases during the period referred to in the proviso, i.e., before March 31, 1958.
We may further take it that the widow and the minor come within the category specified in section 32F (1) (a).
We have also to proceed on the basis that the joint family in each case has other assets which remain joint and undivided.
Before proceeding further with the discussion it may be proper to read the relevant provision for a break up of the! statutory limbs: "32F. (1) Notwithstanding anything contained in the proceeding sections (a) where the landlord is a minor, or a widow or a person subject to any mental or physical disability the tenant shall have the right to purchase such land under section 32 within one year from the expiry of the period during which such landlord is entitled to terminate the tenancy under section 31 and for enabling the tenant to exercise the right of purchase, the landlord shall send an intima tion to the tenant of the fact that he has attained majority, before the expiry of the period during which such landlord is entitled to terminate the tenancy under section 31: Provided that where a person of such category is a member of a joint family, the provisions of this sub section shall not apply if at least one member of the joint family is outside the categories mentioned in this sub section unless before the 31st day of March 1958 the share of such person in the joint family has been separated by metes and bounds and the Mamlatdar on inquiry is satis fied that the share of such person in the land is separated, having regard to the area, assessment, classification and value of the land, in the same proportion as the share of that person in the entire joint family proper ty, and not in a larger proportion.
X X X X" Where the landlord is a minor or a widow, as in this case, the tenants ' fight to purchase such land under section 32 is postponed till their disability disappears and one year lapses thereafter.
But this embargo.
on the exercise of the fight of purchase by the tenant does not operate if the property belongs to a joint family and there is a partition therein and the land in question is allotted to the person under disability.
What the section insists upon is that (a) share of such person in the joint family has been separated by metes and bounds; and (b) the Mamlatdar is satisfied that the share of such person in the land is separated in the same proportion as the share of that person in the entire joint family property and not in a larger proportion.
We are dealing with an agrarian reform law whose avowed object is to confer full proprietorship on tilling tenants and it is a fact of common knowledge that landlords resort to cute agrarian legal engineering to circumvent the provisions.
The legislature, with local knowledge of famil iar manipulations and manouvres calculated to 682 defeat land reforms, makes widely worded provisions the 'why ' of it may not be easily discernible to the Court.
We have to give full force and effect without whittling down or supplying words.
Nor can the Court presume the mischief and remedy the evil by interpretative truncation.
A blend of the grammatical and the teleological modes of construction is the best and that is what has been done by the High Court.
We are free to agree that the involved drafting of the section has had its share in the marginal obscurity of meaning.
But our legislative process, not an unmixed bless ing, works under such instant stress and ad hoc haphazard ness that the whole piece when produced makes experienced draftsmen blush.
Reform of the inherited lawmaking method ology may save court time and reduce litigation.
Be that as it may, we have to wrestle with the language of the Proviso to decode its true sense.
The broad idea is to vest full ownership in the tenan try.
A compassionate exception is made in favour of handi capped landlords who cannot prove their need to recover their land on approved grounds.
These disabled categories include infants and widows.
But if the lands belong to joint families of which they are members, the raison d 'etre for such protection does not exist because the manager of this joint family takes care of its collective inter ests.
Where, however, there has been a partition of the joint family, then the widow or minor has to stand on her or his own disabled legs and so the Proviso to section 32F (1) (a) was brought in by amendment to give them protection for the period of the disability and a little longer.
But every ruse to save the lands is used by landlords and so, once it was in the air that minors and widows may be exempted, a spate of partitions perhaps ensued.
Joint living is the dear, traditional Hindu way of life but jettisoning jointness to salvage ,land is dearer still.
Blood is thicker than water, it has been said; but in this mundane world, property is thicker than blood: So partition deeds, conven iently confined to land, became a popular art of extrica tion.
And the Legislature, anxious to inhibit such abuse, while willing to exempt genuine, total separations, condi tioned the Proviso under consideration by insisting that the separation should be from the whole joint family assets and not a tell tale transaction where agricultural lands .alone are divided and secondly, even where there is a total parti tion, only a fair proportion of the lands is allotted to the disabled person.
In this light, we may read the Proviso.
To steer clear of possible confusion we may agree that partial partition may be legally permissible and the Hindu law does not require investigation into the motives or motivelessness behind the partition.
We also accept that division in status is good enough to end commensality or jointness under the personal law.
But we are now in the jurisdiction of land reform legislation and the Legislature, with a view to fulfil its objectives, may prescribe special require ments.
The Court has to give effect to them, in the spirit of agrarian reform and not read down the wide words on judicial suppositions.
683 Here the Proviso can rescue the widow or the minor only if the prerequisites are fairly and fully fulfilled.
Sec tion 32 states that the tenants shall be deemed to have purchased the tenanted land on the Tillers ' Day.
The Tribu nal suo motu takes action to determine the purchase price.
But all this is kept in abeyance if the landlord belongs to the disabled category and qualifies under section 32F (1).
The crucial issue is whether the Proviso applies even if the separation of the widow or minor is restricted to agricul tural lands.
Shri Wad and, Shri Tarkunde vehemently urge that it is none of the concern of the agrarian law what happens to the other assets of the joint family, so long as the lands are divided in fair proportion.
Shri Datar presses what the High Court has laconically reasoned, viz., that it is possible to defeat the scheme by division of the lands alone.
Fox one thing, in most such partial parti tions, inspired by the desire to avoid the land reforms in the offing, the Legislature can, as a policy decision, insist on a whole partition, to reduce the evasion.
More over, there will be a sudden fancy for allotting all the good lands to the share of widows and minors, depriving the tenants of their legitimate expectations.
And, if lands and other assets are to be divided, then less lands will go to the disabled persons or even none.
For instance the house may be allotted to the widow and the lands taken over by adult males.
The ornaments may all go to the woman, the agriculture to the men.
We need not speculate, but may content ourselves with stating that the Legislature has, for some reasons, decided to lay down conditions and the words of the text must be assigned full effect.
The Proviso clearly states that the disabled person 's share 'in the joint family ' must have been 'separated by metes and bounds '.
Separation from the joint family means separation from all the joint family assets.
Otherwise the sharer remains partly joint and, to that extent, is not separated from the joint family.
Notional division or divi sion in status also may not be enough because the Act in sists on separation 'by metes and bounds '.
Ordinarily 'metes and bounds ' are appropriate to real property, mean ing, as the phrase does, 'the boundary lines of land, with their terminal points and angles '.
In the context, the thrust of the expression is that the division must be more than notional but actual, concrete, clearly demarcated.
The ineptness and involved structure and some ambiguity notwith standing, the sense of the sentence is clear.
The share of a person in the joint family, plainly understood, means his share in all the joint family properties and not merely in the real estate part.
What is more, the section uses the expressions 'the share of such person in the joint family ', 'the share of such person in the land ', 'the share of that person in the entire joint family property '.
Thus it is reasonable to hold that when the expression used is 'the share of such person in the point family. ', it is not ' confined to the share in the land only.
It really means his share 'in the entire joint family property '.
Moreover, the statutory exercise expected of the Mamlatdar by the Proviso involves an enquiry into the share of the disabled person in the land, and its value, the share of that person in the entire joint family property, the proportion that the allot ment of the land bears to his share in the entire joint 684 family property with a view to see that there is no unfair manouvre to defeat the scheme of the Act.
The necessary postulate is that there is a division in the entire joint family property.
Therefore, the imperative condition for the operation of the Proviso is that there should be a total separation and so far as a disabled member is concerned it must cover all the joint family properties.
We are therefore in agreement with the interpretation adopted by the High Court.
In the cases under appeal there is no division of all the joint family properties.
Only the landed properties have been separated.
The appeals there fore fail and are dismissed.
In the circumstances, we direct parties to bear their costs.
S.R. Appeals dis missed.

dataset_name: IN-Abs

summary:
Under section 32 of the Bombay Tenancy and Agricultural Lands Act 1948, the.
tiller of the land had the right to purchase the land tenanted to him.
Where the landlord is a minor or a widow or a person subject to any mental or physical disa bility, the right to purchase such land is postponed till their disability disappears and one year lapses thereafter.
But this embargo on the exercise ' of the right of purchase by the tenant does not operate as per proviso to section 32F(1)(a), if the property belongs to a joint family and there is a partition therein and the land is allotted to the person under disability.
In both the appeals, the family owned lands and other assets and there was a partition confined to agricultural land only.
In one case the share fell to a widow while in the other it fell to a minor, admittedly a disabled ' person within ' the meaning of s 32F(1).
Before the TribUnal and the High Court, the landlord claimed, therefore, protection under the proviso to clause (a) of section 32F(1) of the Act while the respondent contended that even if the agricultural land had been divided and other assets admittedly remained joint, the appellant was ineligible to claim the benefit of the proviso.
The High Court decided against the landlord and held: "The proviso is not satisfied unless the share of a disabled person is separated by metes and bounds in all the joint family property and unless the agricultural land allotted to him corresponds to his share in the entire property and is not in excess thereof '.
Dismissing the appeal to this Court, HELD: (1) The broad idea is to vest full ownership in the tenantry.
A compassionate exception is made in favour of a handicapped landlords who ' cannot prove their need to recover their land on approved grounds.
The Legislature conditioned the proviso by insisting that the separation should be from the whole joint family assets and not a tell tale transaction where agricultural lands alone are divided and secondly even where there iS a total partition only a fair proportion of the lands is allotted to the disabled person.
[682 C D F] What section 32F(1) insists upon is that (a) share of such person in the joint family has been separated by metes and bounds; (b).
the Mamlatdar is satisfied that the share of the disabled person in the land is separated in the same proportion as the share of that person in the entire joint family property and not in a larger proportion.
[681 G] (3) The imperative condition for the operation of the proviso is that there should be a total separation and so far as a disabled member is concerned, it must cover all the joint family properties.
The usage of the expressions "the share of such person in the joint .family", "the share of.
such person,, in the land", "the share of that person in the, entire joint family property in the section the clear statement in the proviso that the disabled person s share in the joint family must have been separated by metes and bounds and the statutory exercise expected of the Mam latdar by the proviso involving an enquiry into the share of the disabled person in the land and its value, the share of that person in the entire joint family properties, the proportion that the allot 679 ment of the land bears to his share in the entire joint family property with a view to see that there is no unfair manouvre to defeat the scheme of the Act lead to the neces sary postulate that it is not confined to the share of the land only but really means his share in the entire joint family property.
[683 E H, 684 A] (4) In the instant case there is no division of all the joint family property.
Only the landed properties have been separated.
[684 B] Observation: The reform of the inherited law making methodology may save court time and reduce litigation.
Our legislative process, not an unmixed blessing, works under such instant stress and ad hoc hephazardness that the whole piece of legislation when produced makes experienced draftsmen blush, as in the instant case, the involved drafting of section 32F has had its share in the marginal obscurity of meaning.
[682 B C]


judgement:
Appeal No. 265 of 1972.
From the Judgment and Order dated the 24th August, 1971 of the Kerala High Court in I.T.R.No.
25 of 1969.
G.B. Pai, K.J. John for M/s Dadabhanji & Co., for the Appel lant.
B.B. ,Ahuja and R.N. Sachthey for Respondent.
The Judgment of the Court was delivered by GUPTA, J.
The question for decision in this case is whether the money contributed by the assessee, public limit ed company, for the construction of a new road in the area where its factory is located to improve transport facilities is capital expenditure or revenue expenditure.
The assess ment year in question is 1964~65, the relevant accounting period being the financial year ended March 31, 1964.
The assessee company is engaged in the manufacture of chemicals; it had been receiving and despatching materials required for and produced in its factory through lorries.
The assessee along with three, 716 other public undertaking approached the Government of Kerala for laying a new road from kalamasseri to Udyogamanndal; this area where the assessee 's factory is situate was not at the material tune served by pucca roads.
It was agreed that the Government of Kerala would bear the cost of the acquisition of the land and 25 per cent of the cost of construction.
The total cost to be shared by the four companies was Rs. 1,04,550/ and the assessee 's share came to Rs. 26,100/ .
The assessee company sought to deduct this amount from its total income c/aiming this as revenue expenditure for the year in question.
The Income tax Officer disallowed the claim holding that the assessee 's contribution was capital expenditure.
The Appellate As sistant Commissioner took the same view.
The Appellate Tribunal, mainly relying on the decision of the Calcutta High Court in Commissioner of Income tax vs Hindustan Motors Limited,(1) held that the assessee was entitled to deduct the amount as revenue expenditure.
At the instance of the Commissioner of Income tax, Kerala, Ernakulam, the Tribunal referred the following question to the High Court of Kerala under section 256(1) of the Income Tax Act,1961: "Whether, on the facts and in the circum stances of the case, the Appellate Tribunal was legally justified in allowing the expendi ture of Rs. 26,100/ being the respondent 's contribution to government for constructing a road as a permissible deduction under section 37(1) 0f the Income Tax Act, 1961." The High Court held that the assessee in this case ob tained an advantage of an enduring nature by the construc tion of the road and, therefore, the amount contributed was capital expenditure.
The High Court accordingly answered the question in negative and against the assessee.
In this appeal, brought on a certificate under section 261 of the Income Tax Act, 1961, the assessee challenges the correct ness of the answer given by the High Court to the question.
The authorities both in this country and in England have pointed out the difficulties in formulating precise rules for distinguishing capital expenditure from revenue expendi ture.
The line of demarcation has been found to be very thin.
Certain broad tests have however been laid down, and of them the test suggested by viscount Cave, L. C., in Atherton vs British Insulated and Helsby Cables Limited(2) appears to have been largely accepted in this country.
This Court in Assam Bengal Cement Company Limited vs Commis sioner of Income tax, West Begnal(3); Sitalpur Sugar Works Limited vs Commissioner of Income tax, Bihar and Orissa( ') and a number of other decisions has adopted the test as laid down in Atherton 's case: to refer again to these often quoted lines from Viscount Cave 's Judgment "when an expendi ture is made, . . with a view to bringing into existence an asset or an advantage for the enduring benefit of a (1) (2) (1925) 10 Tax Cases 155.
(3) (4) 717 trade, I think that there is very good reason (in the ab sence of special circumstances leading to an opposite con clusion) for treating such an expenditure as properly at tributable not to revenue but to capital".
Referring to Atherton 's case and certain other authorities on the dis tinction between capital expenditure and revenue expenditure and the tests to be applied, this Court in Assam Bengal Cement Company Limited vs Commissioner of Income tax(1) observed: "If the expenditure is made for acquiring or bringing into existence an asset or advantage for the enduring benefit of the business it is properly attributable to capital and is of the nature of capital expenditure.
If on the other hand it is made not for the purpose of bringing into existence any such asset or advantage but for running the business or working it with a view to produce the profits it is a revenue expenditure.
If any such asset or advantage for the enduring benefit of the business is thus acquired or brought into existence it would be immaterial whether the source of the payment was the capital of the income of the concern or whether tire payment was made once and for all or was made periodically.
The aim and object of the expenditure would determine the character of the expenditure whether it is a capital ex penditure or a revenue expenditure.
The source or the manner of the payment would then be of no consequence.
It is only in those cases where this test is of no avail that one may go to the test of fixed or circulating capital and consider whether the expenditure incurred was part of the fixed capital of the business or part of its circulating capital.
If it was part of the fixed capital of the business it would be of the nature of capital expenditure and if it was part of its circu lating capital it would be of the nature of revenue expenditure.
" In the case before us, the High Court applied viscount Cave 's test and found that the expenditure made by the assessee brought into existence an advantage for the endur ing benefit of the assessee 's trade and accordingly held that this was capital expenditure.
Each case turns on its own facts.
It is not disputed here that the correct test has been applied.
Did the money spent by the assessee on construction of the new road secure for it an enduring benefit, or was it necessary for running its business? On the facts of the case the position seems to be clear enough not to merit an elaborate consideration, that by having the new road constructed for the improvement of transport facilities, the assessee acquired an enduring advantage for its business. The High Court rightly pointed out that the decision of the Calcutta High Court in Commis sioner of Income tax vs Hindustan Motors Ltd.(2) on which the appellate tribunal relied, is clearly distinguishable on facts; that was a case where the expenditure incurred was for repair of an existing road which is different from the case where a new road is laid out for the purpose of the assessee 's (1) (2) (1968)68 I.T.R. 301.
718 business.
Mr. Pai, learned counsel for the appellant, has relied on the decision of this CoUrt in Lakshmiji Sugar Mills Company Private Limited vs Commissioner of Income tax, New Delhi(1), to contend that even the expenditure on the construction of roads could be revenue expenditure and not expenditure of a capital nature.
In Lakshmiji Sugar Mills case the assessee was a private limited company carrying on the business of manufacture and sale of sugar.
Under the provisions of the U.P. Sugarcane Regulation of Supply and Purchase Act, 1953, the assessee company was obliged to contribute certain amounts for the development of roads which were originally the property of the government and remained so even after the improvement had been made.
Apart from the fact that in this case the expenditure incurred was under a statutory compulsion, there was no finding that the roads were newly made.
On the facts of that case this Court was satisfied that the development of the roads was meant for facilitating the carrying on of the assessee 's business.
Lakshmiji Sugar Mills(1) case is quite different on facts from the one before us and must be con fined to the peculiar facts of that case.
On the facts of the instant case, we have no doubt that the expenditure incurred by the assessee was of a capital nature.
The appeal accordingly fails and is dismissed but in the circumstances of the case without any order as to costs.

summary:
The appellant assessee is a public limited company who spent Rs.26,100/ for the construction of a new road for improving transport facilities in the area where its factory is located and sought to deduct this amount from its total income claiming this as revenue expenditure for the year.
The claim was disallowed by the Income tax Officer and the Appellate Assistant Commissioner.
The Appellate Tribunal held that the amount could be deducted as revenue expendi ture but at the instance of the respondent referred the matter to the High Court under section 256(1) of the Income Tax Act, 1961, where it was decided against the appellant.
Dismissing the appeal, the Court, HELD: The line of demarcation between capital expendi ture and revenue expenditure has been found to be very thin.
According to the test suggested in Atherton 's case by Vis count Cave, L.C. by having the new road constructed for the improvement of transport facilities, the assessee acquired an enduring advantage for its business.
The expenditure incurred was, therefore of a capital nature.
F II & 718 D] Atherton vs British Insulated and Helsby Cables Ltd. [1925] 10 Tax Cases 155: Assam Bengal Cement Co. Ltd. vs Commissioner of Income Tax, West Bengal and Sitalpur Sugar Works Ltd. vs Commissioner of Income Tax.
Bihar and Orissa , applied.
Commissioner of Income tax vs Hindustan Motors Ltd. and Lakshmiji Sugar Mills Co. (P) Ltd. vs Commissioner of Income tax, New Delhi , distinguished.