judgement:
Appeal No. 1698 of 1971.
(Appeal by Special Leave from the Judgment and Order dated 8 4 1971 of the Kerala High Court in T.R.C. No. 46/69).
S.T. Desai, A.G. Meneses, Markos Vellapilly and K.J. John, for the Appellant.
K.T. Harindra Nath and K.M.K. Nair for the Respondent.
The Judgment of the Court was delivered by KHANNA, J.
This is an appeal by special leave against the judgment of the Kerala Hight Court dismissing revision petition of the petitioner against the order in appeal of the Appellate Tribunal whereby the Tribunal refused to include certain items in the sales tax registration certifi cate of the appellant.
The appellant, Travancore Tea Estates Co. Ltd., is a company incorporated in England having its registered office in London.
The appellant carries on the business of tea planting in India at Vandiperiyar in Peermade Taluk in Kerala State.
Eight tea estates are owned by the appel lant in Peermade Taluk.
To manufacture tea grown in those estates, the appellant maintains separate tea facto ries in each of those estates.
On an application made by the appellant for registration under.
the (Act 74 of 1956) (hereinafter referred to as the Act), the sales tax authorities granted registration certif icate to the appellant on January 9, 1963.
Aggrieved by the non inclusion of certain items of goods in the registration certificate the appellant filed writ petition in the Kerala High Court.
The High Court directed the Sales Tax Officer to decide the question regarding the inclusion of items in the light of the decisions of this Court in 1.
K. Cotton Spinning & Weaving Mill3 ' Co. Ltd. vs 757 The Sales Tax Officer (1) and Indian Copper Corporation Ltd. vs Commissioner of Commercial Taxes.(2) The Sales Tax Officer thereafter allowed the inclusion of some of the items of goods asked for by the appellant in the registra tion certificate but refused to include certain other goods in that certificate.
The appellant thereupon preferred appeal before` the Appellate Assistant Commissioner of Sales Tax, Kottayam, who partly allowed the appeal by di recting further inclusion of certain items.
The Appellate Assistant Commissioner however, declined to include the following items in the certificate in respect of which prayer had been made by the appellant: "1.
Fertilisers, chemicals, weedicides, insecti cides, fungicides and pesticides for use in tea cultivaton: 2. Cement and other building materials for installing and housing tea machinery and equip ments: 3.
Building materials, iron and hose pipes, sanitary fittings for use in estates and estate factories , ' 4.
Weighing and measuring and packing equipments for use in tea estates; and 5.
All other articles and things for use in manufacture and processing of sale of tea.
" The appellant then took the matter in further appeal before the Appellate Tribunal and prayed for the inclusion in the certificate of the above mentioned items.
The Appellate Tribunal did not accept the prayer of the appellant and dismissed the appeal.
Revision petition was thereupon filed by the appellant before the Kerala High Court against the order of the Tribunal.
In appeal before the High Court it was stated on behalf of the appellant in respect of the first item relating to fertilisers, chemicals, weedicides and insecticides, that they were used for cultivation of tea leaves.
The conten tion of the appellant was that the growing and manufacturing of tea constituted one integrated process and therefore the items of goods required for growing tea should be deemed to be goods intended for use in the manufacture of tea within the meaning of section 8(3)(b) of the Act.
This contention had also been advanced by the appellant earlier before the Tribunal but the Tribunal rejected this contention as in its view "the legislature has not included production by agriculture as one of the operations for which goods can be purchased under section 8 of the ".
The Tribunal further held that merely because the agricultural, process of the company is connected with the process of manufacture, production of tea did not form part of the manufacture and processing of tea.
The High Court disa greed with this reasoning of the Tribunal and observed that the expression "in the manufacture of goods" in section 8(3) (b) of the Act normally encompasses the entire process carried on by the dealer of converting the raw material into finished goods.
In the opinion of the High Court, the growing of tea leaves (1) 16 S.T.C. 563.
(2) 16 S.T.C. 259.
758 was so integrally connected with the manufacture of tea that it could reasonably be taken as a part of the process of manufacturing tea.
This circumstance, however, in the opin ion of the High Court, by itself was not sufficient to make the goods eligible for inclusion in the registration certif icate.
The High Court accordingly observed: "Under rule 13 read with section 8(3) (b) the use of the goods in the manufacture or processing of goods for sale will not be a sufficient ground for inclusion in the certificate.
The further requirement is that the goods must be for use as raw materials or processing materials or machinery, plant, equipment, tools, stores, spare parts, accessories, fuel or lubricants.
The first item, namely, fertilisers, chemicals, insecticides, etc.
in our opinion cannot fall within the category of a raw material or processing material or machinery etc.
The learned counsel for the company sought to contend that fertilisers, chemicals etc.
would come within file category of stores mentioned in section 8(3)(b) and that as such it is eligible for specification in the certificate.
We are unable to agree with this submission.
The word 'stores ' in the context in which it appears in rule 13 has to be necessarily goods intended for use in the manu facture or processing of goods for sale and it is not possible to hold that fertilisers, chemicals, weedicides, insecticides etc.
can come within this category.
They are not in any way directly con nected with the manufacturing or processing of tea.
As pointed out earlier, the expression 'in the manufacture ' can take within its compass only processes which are directly related to the actual production.
As such the claim for inclusion of this item in the Sales Tax Registration Certifi cate cannot be supported.
" The prayer of the appellant regarding items (2), (3) and (4) was also disallowed in the light of the observations of this Court in the case of 1.
K. Cotton Spinning & Weaving Mills Co. Ltd. (supra).
Item No. (5), in the opinion of the High Court, was too vague and indefinite to deserve inclusion in the certificate.
In the result the revision petition was dismissed.
Before dealing with the contentions advanced, it may be useful to refer to the relevant provisions.
Section 7 of the Act makes provision for registration of dealers.
Section 8 of the Act deals with rates of tax on sales in the course of inter State trade or commerce.
Clause (b) of sub section (1) of that section provides that every dealer, who in the course of inter State trade or commerce sells to a registered dealer other than the Government goods of the description referred to in sub section (3) shall be liable to pay tax under this Act which shall be 3 per cent, of his turnover.
The percentage before July 1, 1966 was two.
Sub section 3(b) reads as under: "(3) The goods referred to in clause (b) of sub section (1) 759 (b) are goods of the class or classes specified in the certificate of registration of the registered dealer purchasing the goods as being intended for re sale by him or subject to any rules made by the Central Government in this behalf, for use by him in the manufacture or processing of goods for sale or in mining or in the generation or distribution of electricity or any other form of power;" The Central Sales Tax (Registration and Turnover) Rules, 1957 have been framed by the Central Govern ment.
Rule 13 of the rules reads as under: "13.
The goods referred to in clause (b) of sub section (3) of section 8 which a registered dealer may purchase, shall be goods intended for use by him as raw materials, processing materials, machinery, plant, equipment tools stores, spare parts, accessories, fuel or lubricants, in the manufacture or processing of goods for sale, or in mining, or in the generation of electricity or any other form of power.
" The question with which we are concerned in this appeal is whether the items of goods in respect of which prayer of the appellant for being included in the registration certif icate was refused, answer to the description of goods as given in the above rule.
Mr. Desai on behalf of the appellant has not pressed the case of the appellant in respect of item No. (5) which was found by the High Court to be vagne and indefinite.
He has also not made any sub missions in respect of items (2) and (3) relating to Cement and building materials.
The main contention of Mr. Desai has related to item No. (1) pertaining to fertilisers, chemi cals, weedicides, insecticides, fungicides and pesticides for use in tea cultivation.
According to the learned coun sel, cultivation and the growing of tea leaves was so inte grally connected with the manufacture of tea that it could be taken to be part of the process of manufacturing tea.
As fertilisers and othergoods mentioned in item (1) were needed for tea clutivation, the same should, according to the learned counsel, be held to be intended for use in the manufacture or processing of tea for sale.
Regarding item (4), the case of the appellant is that though weighing equipment used in the factories has been allowed to be included in the certificate, the weighing equipment used for the purpose of cultivation has not been included in the certificate.
The weighing equipment to be used for culti vation should also, it is urged, be included in the certifi cate.
The above contentions have been controverted by Mr. Narendra Nath, and he has urged that neither the goods mentioned in item No. (1) nor the weighing equipment needed for cultivation are directly, connected with the process of manufacturing tea.
After giving the matter our earnest consideration, we are of view that the contention of Mr. Narendra Nath is well founded.
760 Rule 13 has been the subject matter of two.
decisions of this Court In the case of Indian Copper Corporation (supra), the assessee was a dealer engaged both in mining operations of copper and iron ore and the manufacturing of finished products from the ore for sale.
This Court held that the two processes being inter dependent, it would be impossible to exclude vehicles which are used for removing from the place where the mining operations were concluded to the factory where the manufacturing process started, from the registration certificate.
The expression "goods intended for use in the manufacturing or processing of goods for sale" was held to include such vehicles as were intended to be used for removal of processed goods from the factory to the place of storage.
The mere fact that there is a statutory obligation imposed upon the owner of the factory or the mine to maintain hospital facilities would not, in the opinion of this Court, supply a connection between the goods and the manufacturing or processing of goods or the mining opera tions so as to make them goods intended for use in those operations.
The expression "intended to be used".
it was further held, cannot be equated with "likely to facilitate" the conduct of the business of manufacturing or of process ing goods or of mining.
In J. K. Cotton Spinning & Weaving Milis Co. Ltd. (supra) the appellant manufactured for sale cotton tex tiles, tiles and other commodities.
Certain items of goods in the certificate of registration of the appellant were deleted by the sales tax authorities on the ground that they had been earlier erroneously included in the ' certificate.
This Court in that context dealt with the scope and ambit of section 8(3) (b) of the Act read with rule 13.
It was held that the expression "in the manufacture of goods" in section 8(3)(b) should normally encompass the entire process car ried on by the dealer of converting raw materials into finished good 'section Where any particular process is so inte grally connected with the ultimate production of goods that, but for that process, manufacture or processing of goods would be commercially inexpedient, goods required in that process would fail within the expression "in the manufacture of goods.
" It was further held that the process of design ing might be distinct from the actual process of turning out finished goods.
But there was no warrant for limiting the meaning of the expression "in the manufacture of goods" to the process of production of goods only.
The expression "in the manufacture" was held to take in within its compass all processes which are directly related to the actual production.
Drawing and photographic materials directly related to the actual production of goods were held to be goods intended for use "in the manufacture of goods".
Build ing materials, including lime and cement, not required in the manufacture of tiles for sale was, however, held to be not raw material in the manufacture or processing of goods or even as "plant".
We may now turn to the present case.
The question which essentially arises for determination is whether fertilisers and other goods mentioned in item No. (1) are intended for use by the appellant as equipment or stores in the manufac ture or processing of tea meant for 761 sale, as urged on behalf of the appellant.
The contro versy between the parties has centred round the point as to whether fertilisers and other goods mentioned in item No. (1) can be said to be goods intended for use in the manufac ture or processing of tea meant for sale.
So far as this question is concerned, we find that the growing and plucking of tea leaves from the plants and the processing of those leaves in the factories are parts of a continued activity.
The assertion of Mr. Desai that the tea leaves would lose their value unless they are processed in the factory soon after they are plucked is not being questioned.
It does not, however, follow from that that the cultivation of tea plants and the growth of tea leaves is not something distinct from the manufacturing process to which tea leaves are subjected in the factories.
The fact that the time lag between the plucking of tea leaves and their being subjected to manufac turing process in the factories is very little would not detract from the conclusion that the cultivation and growth of tea plants and leaves is something distinct and separate from the manufacturing process to which those leaves are subjected in the factories for turning them into.
tea meant for sale.
Income which is realised by sale of tea by a tea company which grows tea on its land and thereafter subjects it to manufacturing process in its factory is an integrated income.
Such income consists of elements or components.
One element or component consists of the agricultural income which is yielded in the form of green leaves purely by the land over which tea plants are grown.
The second element or component consists of non agricultural income which is the result of subjecting green leaves which are plucked from the tea plants grown on the land to a particular manufacturing process in the factory of the tea company.
Rule 24 of the Income tax Rules, 1922 and rule 8 of the Income tax Rules, 1962 prescribe the formula which should be adopted for apportioning the income realised as a result of the sale of tea after it is grown and subjected to the manufacturing process in the factory.
Sixty per cent.
is taken to be agricultural income and the same consists of the first element or component, while 40 per cent represents non agricultural income and the same comprises the second ele ment or component (see Tea Estate India (p.) Ltd. vs Commis sioner of Income tax(1).
Fertilisers and the other goods mentioned in item No. (1) are intended for use not in the manufacturing process in respect of tea meant for sale, they are essentially needed for the cultivation and growth of tea plants and leaves.
There is no direct relationship between use of fertilisers and other goods mentioned in item No. (1 ) and the manufac turing process in respect of tea meant for sale.
What is meant by manufacture of tea is clear from pages 863 4 of Vol.
21 of Encyclopedia Britannica (1965 Edition) wherein it is observed: "Black and green teas result from different manufactur ing processes applied to the same kind of leaf.
After plucking, the leaf is withered by being spread on bamboo trays in the sun, or on withering tats within doors.
The process takes 18 to 24 hours.
Next it is rolled.
by hand or by machines.
The object of rolling is to break 762 the leaf ceils and liberate the juices and enzymes sealed within.
The roll may last as long as three hours.
Then it is taken to the roll breaker and green leaf sifting machine and after that fermented in baskets, on glass shelves or on cool cement floors under damp cloth for 4 or 41/2 hours.
The firing process (drying) follows, in pans or baskets or in firing machines.
It takes 30 to 40 min.
The difference between black tea and green tea is the result of manipula tion.
Green tea is manufactured by steaming without fermen tation in a perforated cylinder or boiler, thus retaining some of the green colour.
Black tea is allowed to ferment after being rolled and before firing.
In the case of black tea the process of fermentation, or oxidation, reduces the astringency of the leaf and, it is claimed, developes the colour and aroma of the liquor.
In making green tea, the fermentation process is arrested by steaming the leaf while it is green and by light rolling before drying.
" The cultivation and growth of tea plants and leaves cannot, in our opinion, be comprehended in the expression "in the manufacture or processing of goods for sale".
Cultivation and growth of tea plants no 'doubt results in the production of raw material in the form of green tea leaves which are ultimately processed into tea meant for Sale, but such cultivation and growth are in the very nature of things prior to the manufacturing process and do not answer to the description of manufacture and processing of tea meant for sale.
There is a vital difference between an agricultural operation and a manufacturing process, and the same should not be lost sight of.
What is needed for being used purely in an agricultural operation cannot be held to be goods required for use in a manufacturing process.
We are, therefore, of the opinion that the appellant was not entitled to get fertilisers and other goods mentioned in item No. (1 ) included in the registration certificate.
The same reasoning would also hold good in respect of weigh ing machine used not in the factories but in the tea fields.
appeal consequently fails and is dismissed with coats.
V.P.S. Appeal dismissed.

summary:
Section 8 of the , deals with rates of tax on sales in the course of inter State trade or commerce.
Section 8(1)(b) provides that every dealer, who in the course of inter State trade or commerce sells to a registered dealer goods of the description referred to in sub section
(3) shall be liable to pay tax at 3% of his turnover.
Section 8(3)(b) refers, inter alia to goods of the class or classes specified in the certificate of registration of the registered dealer purchasing the goods as being intended for re sale by him, or subject to any rules made by the Central Government in this behalf,, for use by him in the manufac ture or processing of goods for sale.
Rule 13 of the Cen tral Sales Tax (Registration and Turnover) Rules, 1957, framed under the Act, provides that the goods referred to in section 8(3)(b) which a registered dealer may purchase shall be goods intended for use by him inter alia as raw materials and processing materials in the manufacture or processing of goods for sale.
The appellant owned tea estates in the respondent State and was also maintaining factories for the manufacture of tea.
It prayed for inclusion in its Certificate of regis tration, ( 1 ) fertilisers, chemicals, weedicides, insec ticides, fungicides and pesticides for use in tea cultiva tion; and (2) weighing and measuring and packing equip ments for use in tea estates.
The Department refused to include them and the Tribunal and the High Court confirmed the orders.
In appeal to this Court it was contended that, (1) cultivation and the growing of tea leaves was so integrally connected with the manufacture of tea that it could be taken to be a part of the process of manufacturing tea, and since fertilisers etc. were needed for tea cultivation, the same should be held to.
be intended for use in the manufacture or processing of tea for sale; and (2) since weighing equipment used in the factories had been included in the certificate, the weighing equipment used for the purpose of cultivation should similarly be included.
Dismissing the appeal, HELD: (1) The goods in item (1) are intended for use not in the manufacturing process in respect of tea meant for sale but are only needed for the cultivation and growth of tea plants and leaves.
There is no direct relationship between the use of fertilisers etc.
and the manufacturing process and hence, they were rightly not included in the registration certificate.
[761 G] (a) Cultivation and growth of tea plants result in the production of raw material in the form of green tea leaves which are ultimately processed into tea meant for sale.
But such cultivation and growth are, in the very nature of things, prior to the manufacturing process and do not answer to the description of manufacture and processing of tea meant for sale.
There is a vital difference between an agricultural operation and a manufacturing process.
What is needed for use purely in an agricultural operation cannot be held to be required for use in a manufacturing process.
[762 D] (b) The fact that the time lag between the plucking of tea leaves and their being subjected to the manufacturing process is very little would not detract 756 from the conclusion that the cultivation and growth of tea plants is distinct and separate from the manufacturing process.
[761 C] (c) Rule 24 of the Income Tax Rules, 1922, and r. 8 of the Income Tax Rules, 1962, prescribe the formula which should be adopted for apportioning the income realised as a result of the sale of tea after it is grown and subjected to the manufacturing process in the factory, thus recognis ing the difference between the agricultural income which is yielded in the form of green leaves purely by the land over which tea plants are grown, and the non agricultural income which is the result of subjecting the green leaves plucked to a particular manufacturing process.
[761 E] (2) The same reasoning holds good in respect of weighing machines used, not in the factories but, in the tea fields.
[762 E] J.K. Cotton Spinning & Weaving Mills Co. Ltd. vs The Sales Tax Officer 16 STC 563.
and Indian Copper Corporation Ltd. vs Commission of Commercial Taxes 16 STC 259 fol lowed.
Tea Estate India (P) Ltd. vs Commissioner of Income tax referred to.


judgement:
Appeal No. 621 of 1976.
Appeal by Special Leave from the Judgment and Order dated 12.1.1976 of the Allahabad High Court in Civil Misc.
Writ Petition No. 7183 of 1975, Appellant in person.
V.P. Raman, Addl.
and Girish Chandra, for respondent No. 1.
Yogeshwar Prasad, Lalji Sinha and Miss Rani Arora, for respondent No. 5.
The Judgment of the Court was delivered by CHANDRACHUD, J.
Respondent 1, the Union of India, established the Locomotive Component Works at Varanasi in 1956 for manufacturing component .parts of locomotives.
That manufactory merged in 1961 with the Diesel Locomotive Works, The appellant, S.K. Chandan, who was serving with the Westeren Railway as a Chargeman was transferred in 1963 to the Diesel Locomotive Works in the grade of Rs. 375 475 which he was holding at the time of his transfer as a member of the Class III service.
The question which arises in this appeal concerns the claim of the appellant to be promoted to Class II service.
In 1975 the appellant filed the present writ petition in the Allahabad High Court asking for the writs of Certiorari and Mandamus.
We arc now concerned with the grant of the latter writ only by which the appellant prayed, inter alia, that respondent 1 be directed to hold selections to Class II service in accordance with the "Advance Correction Slip 70.
" This particular prayer was rejected by the High Court by 787 its judgment dated January 12, 1976 on the view that rules contained in Slip 70 did not govern the promotion of Class III employees to Class II.
Aggrieved by the aforesaid decision the appellant has filed this appeal by special leave of this Court.
The leave is restricted to the ques tion whether the promotion of Class III employees to Class II is governed by Slip 70.
Paragraph 105 of the Indian Railway Establishment Code (Vol.
I) divides railway services into two categories gazet ted and non gazetted.
Services in Classes 1 and II are gazetted whereas those in Classes 111 and IV and the Serv ices of the Workshop Staff are designated as nongazetted.
Paragraph 157 of the Code confers on the Railway Board "full powers to make rules of general application to non gazetted railway servants under their control.
" Acting in pursuance of this power, the Railway Board has framed rules which are to be found in the "Indian Railway Establishment Manual." Chapter i of those rules deals with questions relating to recruitment, training, confirmation and reemployment.
Chapter II which is headed "Rules governing the promotion of subordinate staff ' consists of two sections, 'A ' and 'B '.
Section 'A ' deals with "Promotion to Class II posts" while section 'B ' contains "Rules governing the promotion of subordinate staff.
Chapter ' III is headed "Rules regulating seniority of non gazetted railway servants." Originally, Chapter III contained rules 301 to 323.
The Advance Correction Slip No. 70, also issued by the Railway Board in exercise of its powers under Paragraph 157 of the Railway Establishment Code, substituted a new rule 301 for the existing rule and it introduced five new rules in Chapter III, namely rules 324 to 328.
The contention of the appellant which requires examination in this appeal is that his promotion to Class II is governed by the rules introduced by Slip No. 70 which came into force on March 11, 1973.
The appellant, who argued his own case before us with quite industry and plausibility, did not dispute that rules 324, 323, 327 328(1) and 328(3) have no application to this case.
Rule 326(2) which prescribes deemed dates of trans fers would apply but has been concededly compiled with, the appellant having no grievance in regard to the fixation of the deemed date of his transfer to the Diesel Locomotive Works.
Keeping these provisions apart, the question boils down to the applicability of rules 301 and 328(2), (4) and (5).
The appellant 's argument that the rules introduced by Advance Correction Slip 70 govern his right to promotion to Class II is plainly misconceived.
In the first place, the rules introduced by Slip No. 70 were made by the Railway Board in exercise of its powers under Paragraph 157 of the Railway Establishment Code which empowers it to make rules of general application to "Non gazetted railway servants" under its control.
Though the Railway Board has the power to make rules governing both gazetted and non gazetted railway servants, the rules expressed to be made under Paragraph 157 cannot in the very 788 nature Of things be intended to apply to gazetted railway servants or to govern the promotion of non gazetted railway servants to gazetted posts.
But this is a small point because if the Railway Board has the power to make rules in regard to both gazetted and non gazetted railway servants, the signification of a limited source of power cannot whit tle down the effective exercise of that power, if the rules can reasonably be construed to cover both the gazetted and non gazetted categories.
The true reason Why it is impossible to accept the appellant 's contention that his promotion to Class II is governed by the rules introduced by Slip No. 70 is that Chapter II, section A, of the Indian Railway Establishment Manual in terms prescribes rules governing the promotion of subordinate staff to Class II posts.
The heading of Chap ter II is: "Rules governing the promotion of subordinate staff" and section A of that Chapter bears (he Sub heading "Promotion to Class II posts." Rule 201 which is the first of the Rules occurring in section A of Chapter II, provides "The following provisions shall apply in respect of promotion of non gazetted class III staff employed on Indian Railways or other Railway administrations to class II posts other than those in Railway Protection Force organization." Rule 202 'prescribes conditions of eligibility, rule 203 deals with the size of panels of selection, rule 204 with the constitution of the 'selection boards, rule 205 with the procedure to 'be adopted by selection boards and rules 206 and 207 with the currency and formation of panels.
These seven rules constitute a Code of rules governing the promo tion of the non gazetted Class III staff to Class II posts.
other than those in the Railway Protection Force.
In view of the fact that the Railway Board has framed these specific rules for the promotion of Class III staff to Class II posts, it seems to us difficult to accept that the rules introduced by Slip No. 70 would also govern the same subject matter.
The Advance Correction Slip No. 70 introduced amendments to Chapter III and not to Chapter II of the Manual.
Chapter III deals with rules regulating seniority of non gazetted railway servants and it is in regard to that class of rail way servants .that the Railway Board made new, provisions through Slip No. 70.
The provisions contained in Chapter III, including the provisions newly introduced by Slip No. 70, are very clearly designed to govern the seniority and promotion of non gazetted servants within the non gazetted categories of posts.
The non gazetted railway service con sists of Class III and IV employees and of the Workshop staff.
Within each of these three classes there may be different grades of railway servants and the rules in Chapter III are intended to govern the inter se seniority and the promotion of a railway employee from one category of non gazetted post to another category of a non gazetted post.
The 789 rules in Chapter HI cannot therefore govern the promotion of non.gazetted railway servants to gazetted posts.
Since the appellant is working as a non gazetted employee in Class III, his promotion to a gazetted post in Class II would be governed by Chapter II, section A, and not by Chapter III of the Railway Establishment Manual.
Rule 301 of Chapter III, as introduced by Slip 70, provides terms that the rules contained in the particular Chapter lay down general principles that may be followed for determining the seniority of non gazetted railway servants and that rules 324 to 328 of that Chapter shall apply for the purpose of determining the seniority and promotion of non gazetted employees of the Diesel Locomotive Works.
The appellant relied very strongly on rule 328(2) which provides that selections and promotions made in the Diesel Locomotive Works from 1 8 1961 to the date on which Slip No. 70 came into force, namely March 11, 1973, shall not be valid.
He urges that this provision casts an obligation on the Railway Board to recall all promotions made from amongst Class III servants to Class H posts from August 1 1961 to March , 1973 and that therefore those who are already promoted to gazetted posts ought to be demoted and a fresh panel must be formed for selection to Class II posts from amongst employees working in Class III posts.
The infirmity of this argument is that Chapter III applies only to non gazetted servants and to their inter se promotion and therefore the words "promotions made in the Diesel Locomo tive Works" which occur in rule 328(2) must be construed as meaning" promotions made in the Diesel Locomotive Works from one category of non gazetted post to another category of non gazetted post".
The same answer would effectively meet the contention of the appellant that the words "promotion to the higher grades" occurring in paragraph 328(4) mean promo tion to a Class II post.
The words "promotion to the higher grades" must in the context mean promotion to any of the higher grades in the non gazetted category.
Rule 123( '3) of Chapter I, Section B, Railway Establishment Manual, defines "grades" as sub divisions of a class, each bearing a differ ent scale of pay.
If the grievance of the appellant who holds a non gazet ted post in Class III, at all is or can be that he has not been promoted to Class II, he must show that the railway administration has violated some provision contained in Chapter II, section A, of the Railway Establishment Manual.
It is useless and irrelevant for him to show that the provisions of Chapter III introduced by Advance Correction Slip No. 70 have not been complied with by the administra tion.
None of the rules introduced by that slip governs the promotion of a Class III employee to a Class II post.
The High Court was accordingly right in refusing to issue a writ of mandamus directing the railway administra tion to apply the provisions of Chapter III in the matter of the appellant 's promotion to a Class II post.
The appellant has filed a civil miscellaneous petition (7990 of 1976) complaining of adverse entries in his Service record and of the 790 fact that he has been superseded in the matter of promotion.
These very grievances were made by him in the High Court but he lost on those points.
While granting special leave to appeal, this Court refused to consider the correctness of the High Court 's findings on those issues.
The leave being restricted to the question as regards the application of rules introduced by Advance Correction Slip No. 70.
the appellant cannot be permitted to raise questions which must be taken as finally decided under the judgment of the High Court.
For these reasons the appeal fails but there will be no order as to costs.
S.R. Appeal dismissed.

dataset_name: IN-Abs

summary:
Chapter 11 of the Indian Railway Establishment Manual deals with "Rules governing the provision of subordinate staff and Section A thereof deals with "promotion to class II posts.
" The Railway Board by virtue of its power vested by para 157 of the Indian Railway Establishment Code, introduced w.e.f.
March 11, 1973, an "Advance Correction Slip No. 70" substituting a new rule 301 and introducing new rules 324 to 328.
Chapter III deals with the rules regulat ing seniority of non gazetted Railway servants and the new rule 328(2) provided that selections and promotions made in the Diesel Locomotive Works from August 1, 1961 to March 11, 1973 shall not be valid.
The appellant, a member of the class III service serving with the Western Railway as a chargeman was transferred to the Diesel Locomotive Works in 1963 and was given .the benefits of deemed dates of transfer as provided for in Rule 326(2).
The appellant filed a writ petition in the Allahabad High Court praying for a writ of mandamus ,on the strength of the "Advance Correction Slip No. 70" praying for a direction to the respondent to hold selections to class 1I service.
The application was rejected holding that the rules contained in Slip No. 70 did not govern the promo tion of class III employees to class Dismissing the appeal by ' special leave the court, HELD: 'Though the Railway Board has the power to make rules governing both gazetted and non gazetted Railway servants, the rules expressed to be made under paragraph 157 cannot, in the.
very nature of .things, be intended to apply to gazetted Railway servants or to govern the promotion of non gazetted Railway servants to gazetted posts.
If the Railway Board has the power to make rules in regard to both gazetted and non gazetted Railway servants, the significa tion of a limited source of power cannot whitle down the effective exercise of that power if the rules can reasonably be construed to cover both the gazetted and non gazetted categories.
[787 H, 788 A B] (2) None of the rules introduced by Slip No. 70 govern the promotion of a class III employee to a class II post.
The amendments were made to.
Chapter III dealing with rules regulating seniority of non gazetted Railway servants.
It is in regard to that class of Railway servants that the Railway 786 Board made new provisions.
The provisions contained in Chapter III including provisions newly introduced by Slip No. 70, are very clearly designed to govern the seniority and promotions of non gazetted servants within the non gazetted categories of posts.
Chapter 11 Section A of the Manual in terms prescribes rules governing the promotion of subordinate staff to class II post.
In view of the fact that the Railway Board has framed seven specific rules in Chapter II for the promotion of class III staff to class ii post, the contention that the rules introduced by Slip No. 70 would also govern the same subject mater cannot be ac cepted.
In the instant case, since the appellant is working as a non gazetted employee in class III, his promotion 10 a gazetted post in class 1I would be governed by Chapter II, Section A and not by Chapter III of the Railway Establish ment Manual.
[788 F H, 789 A] (3) The words "promotions made in the Diesel Locomo tive Works" which occur in Rule 328(2) must be construed as meaning 'promotions made in the Diesel Locomotive Works from one category of non gazetted post to another category of non gazetted post.
" The words "promotion to the higher grades" occurring in para 328(4) mean promotion to a class II post.
The words promotion to the higher grades must, in the context mean promotion to any of the higher grades in the non gazetted category.
The contention that Rule 328(1) casts an obligation on the Railway Board to recall all promotions made from amongst class III servants to class II posts from August 1, 1961 to March 11.
1973 is misplaced.
[789 B C]


judgement:
Appeal No. 704 of 1975.
(Appeal by Special Leave from the Judgment and Order dated 11 11 1974 of the Andhra Pradesh High Court in Writ Appeal No. 596/73).
P.P. Rao and T.V.S.N. Chari, for the Appellants.
Subbarao, for the Respondents.
The Judgment of the Court was delivered by GUPTA, J.
This appeal by special .leave arises out of a writ petition made by the respondents before us in the Andhra Pradesh High Court questioning the inclusion in the list of Deputy Tehsildars eligible for promotion to the post of Tehsildar of the names of 63 persons, impleaded as re spondents Nos. 4 to 66 in the writ petition.
These 63 persons were working as Upper Division Clerks in the erst while State of Hyderabad when, on November 1, 1956, the State of Andhra Pradesh was formed.
The State Government in consultation with the Government of India issued an order on April 7, 1960 stating that the first stage promotion of the employees of the erstwhile Government of Hyderabad, that is, promotion to posts one stage above those held by them prior to November 1, 1956, would be governed by the Hyderabad Cadre and Recruitment Rules for promotion which were ap plicable to them before that date, but subsequent promotions after the first stage of promotion would be governed by the relevant rules in force in the newly formed State.
By virtue of this order the aforesaid 63 employees were promot ed to the post of Deputy Tehsildar which was the first stage promotion for them.
Later, this order dated April 7, 1960 was made a statutory rule, namely, rule 42(h)(i) of the Andhra Pradesh State and Subordinate Services Rules which came into force on March 7, 1962.
The Andhra Pradesh Civil Services (Executive Branch) Special Rules Revenue Depart ment, hereinafter referred to as the Special Rules, were made on July 17, 1952 but mane effective retrospectively from November 1, 1956.
These Rules cover two categories of service; we are concerned here with category 2 Tahsildars.
Rule 4(a) of the rules says inter alia that the qualifica tions of a candidate for appointment to the post of Tahsil dar shall be as specified in the annexure to the rules.
The annexure provides 704 that a Tahsildar recruited by transfer from the category of Deputy Tahsildars must be a permanent Deputy Tahsildar or an approved probationer in the category of Deputy Tahsildars and should have exercised the powers of a Magistrate of the third class and also of the second class for a period of six months in each capacity.
Only those candidates who have passed a criminal judicial test can be invested with magis terial powers under the orders in force. ' Under rule 4(a) the State Government has to prepare in consultation with the Public Service Commission a list of persons eligible for appointment as Tahsildars, and no Deputy Tahsildar is eligi ble for appointment as Tahsildar unless his name is included in such list.
The two respondents before us were directly recruited to the post of Deputy Tahsildar in the year 1962 and completed their period of probation in 1965.
Both of them were de clared as approved probationers in 1965 and were invested with the powers of a Magistrate of the third class, and then of the second class. 'They became eligible for appoint ment as Tahsildars on November 14, 1966 and June 18, 19 69 respectively.
The respondents and the said 63 Deputy Tahsildars all belong to the Telengana area of the State.
The 63 erstwhile employees of the Government of Hyderabad did not have the opportunity to acquire the qualifications prescribed by rule 4(a) of the Special Rules on their promotion as Deputy TahsiIdars.
The Government felt that they should not be left out of consideration for appointment as Tahsildars and asked the Public Service Commission to consider the names of such Deputy Tahsildars for inclusion in the lists of eligi ble candidates assuring the Public Service Commission that the Government would relax the requirement as to qualifica tion in favour of such Deputy Tahsildars provided they were otherwise found suitable by the Commission.
The Public Service Commission accordingly included the names of these 63 employees in batches in the lists prepared for the years 1965, 1966, 1968 and 1969.
By an order dated June 30, 1971 the Governor of Andhra Pradesh relaxed the provisions of rule 4(a) of the Special Rules relating to the qualifica tions required of Duty Tahsildars for being appointed as Tahsildars in favour of these 63 employees and requested the Board of Revenue to make appointments to the post of Tahsil dar in the Telengana area according to the order in which the names had been indicated in the panels for the aforesaid years against the vacancies.
The order traces the back ground of facts and states the reasons for relaxation of rule 4(a) of the Special Rules in the case of these employ ees.
The material part of the order is as follows: "The Government have had under consideration for sometime past the preparation of panels of Tahsil dars of the Telengana Region.
According to Rules 4(a) read with the Annexure thereto of the Andhra Pradesh Civil Service (Executive Branch) Special Rules, a candidate for appointment to the category of Tahsildars by transfer should, in addition to the other qualifications, be a permanent Deputy Tahsildar or an approved probationer in the catego ry of 705 Deputy Tahsildars of the Andhra Pradesh Revenue Subordinate Service by the 1st July of the year to which the list relates and should have exercised 11I class and II class Magisterial powers respec tively for a period of six months each.
According to the orders in force, only those candidates who have passed the criminal judicial tests can be invested with Magisterial powers.
Allotted offi cers from Telengana for whom promotion to the category of Deputy Tahsildars constitutes the first stage of promotion after 1 11 1956 (viz. Upper Division Clerks), are governed by the Hyderabad cadre and Recruitment Rules for appointment as Deputy Tahsildars.
There is no probation pre scribed in the Hyderabad Cadre and Recruitment Rules for II Grade Clerks (Upper Division Clerks) on their promotions to the post of Deputy Tahsil dars.
Therefore, the question of their becoming approved probationers in the category of Deputy Tahsildars does not arise.
Further, the Hyderabad cadre and Recruitment Rules do not lay down that the II Grade Clerks (Upper Division Clerks) should pass the Criminal Judicial Test as a condition precedent for promotion to the category of Deputy Tahsildars and, therefore, those who did not pass the said tests could have had no opportunity of exercising magisterial powers while working as Deputy Tahsildars.
In the circumstances it was felt that it would be unfair to exclude such per sons from consideration for promotion to the cate gory of Tahsildars on the ground that they were not ,approved probationers and/or had not exercised magisterial powers.
The Public Service Commission was therefore, requested to consider the names also of the Deputy Tahsildars of the Telengana Region of the above category for inclusion in the panels for the respective years, regardless of whether or not they possessed the above qualifications, with an assurance that the Government would be prepared to relax the rules relating to above requirements in favour of the candidates who would be otherwise found suitable by the Commission." Rule 4(a) of the Special Rules was relaxed by the Governor in favour of the aforesaid Deputy Tahsildars in exercise of the power conferred by rule 47 of the Andhra Pradesh State and Subordinate Services Rules.
Rule 47 reads as follows: "47.
Relaxation of rules by the Governor.
No rule made under the proviso to article 309 of the Constitution of India or continued under article 313 of the Constitution shall be construed to limit or abridge the power of the Governor to deal with the case of any class or category of person for being appointed to any civil post, or of any person serving in a civil capacity under the Government of Andhra Pradesh in such manner as may appear to him to be just and equitable: Provided that, where any such rule is ap plicable to the case of any person or a class of persons, the cases shall not 706 be dealt with in ,any manner less favourable to the person or class of persons than that provided by that rule.
" The respondents before us filed a writ petition for quashing the order dated June 30, 1971 insofar as it relates to the said 63 employees who were impleaded as respondents Nos. 4 to 66 in the writ petition.
The writ petitioners complained that as a result of the order their claims for appointment to the post of Tahsildar had been passed over in favour of unqualified persons, and the petitioners asked for a direction on the Government of Andhra Pradesh, the Board of Revenue, and the Andhra Pradesh Public Service Commis sion, who are the appellants before us, to include the names of the petitioners in the panel for the years 1968 and 1969, as the case may be, and fix their seniority at the appropri ate places which they would have occupied had they been promoted at the relevant time.
The learned Judge who heard the writ petition allowed the same and directed that the claims of the petitioners for inclusion of their names in the panels from the respective dates 'they had acquired the requisite qualifications, should be considered on merits.
It was held that rule 47 of the Andhra Pradesh State and Subordinate Services Rub did not confer any power to relax a rule retrospectively as had been done by the order dated 'June 30, 1971.
It was further held that under rule 47 power was given to the Governor personally to relax the rules and the impugned order dated June 30, 1971 which was passed nor by the Governor really but by the Government of Andhra Pradesh was, as such, invalid.
In the Letters Patent appeal preferred by the State, a Division Bench affirmed the Judgment of the single Judge.
The view taken by the High Court that the power con ferred by rule 47 of the Andhra Pradesh State and Subordi nate Services Rules is exercisable by the Governor personal ly is based on the Judgment of this Court in Sardari Lal vs Union of India & ors.
(1) But Sardari .Lal 's case has been overruled by the later decision of this Court in Shamsher Singh vs State of Punjab, (2) and counsel for the respond ents rightly conceded that the impugned order cannot be assailed on this ground after Shamsher Singh 's case.
The real question that requires to be decided in this appeal is whether rule 47 permits relaxation of any rule with retrospective effect.
Before proceeding to consider this aspect, it is necessary to dispose of one small point raised on behalf of the appellants that the impugned order was not really retrospective but prospective in operation because it was only from the date of the order that the inclusion of the names of the said 63 employees in the panels for the different years was regularised.
The order made on June 30, 1971 relaxed rule 4(a) of the Special Rules in the case of these employees to validate the panels for the years 1965, 1966, 1968 and 1969.
The impugned order thus regularized the inclusion of the names in the panels which was done long before the order was made.
The order is therefore clearly retroactive and not prospective in opera tion.
Rule 47 of the Andhra Pradesh State and Subordinate Services (1) ; (2) (1975) I S.C.R. 814.
707 Rules gives power to the Governor to relax the rigour of the general rules in such manner as may appear to him to be just and equitable.
To show that rule 47 giving such wide power to the Governor is not unique of its kind, counsel for the appellants referred to similar provisions in several other Service Rules like, rule 13 of the Secretary of State 's Services (Medical Attendance) Rules, 1938, rule 10 of the Indian Administrative ServiCe (Pay) Rules.
1954, rule 15 of the Indian Police Service (Probation) Rules, 1954, rule 10 of the Indian Police Service (Pay) Rules, 1954, and rule 10(b), proviso, of the Indian Forest Service (Appointment by Competitive Examination) Regulations, 1967.
Clearly, the power under rule 47 is to be exercised in the interest of justice and equity.
It is not difficult to see that the occasions for :acting under rule 47 may well arise after the attention of the Government is drawn to a case where there has been a failure of justice.
In such cases justice can be done only by exercising the power under rule 47 with retro spective effect, otherwise the object and purpose of the rule will be largely frustrated.
The view we take finds support from the decision of this Court in R.P. Khanna & Ors.
vs S.A.F. Abbas & Ors.
C) In that case the Court was dealing with rule 3(3)(b) of the Indian Administrative Service (Regulation of Seniority) Rules, 1954 which lays down that the year of allotment of an officer who was ap pointed to the Service by promotion shall be the year of allotment of the junior most among the officers who entered the service by direct recruitment who officiated continuous ly in a senior post from a date earlier than the date of commencement of such officiation by the former.
The second proviso to the rule states that a promotee shall be deemed to have officiated continuously in a senior post prior to the date of inclusion of his name in the select list pre pared in accordance with the requirements of the Indian Administrative Service (Appointment by Promotion) Regula tions, if the period of such officiation prior to that date was approved by the Central Government in consultation with the Union Public Service Commission.
Overruling a conten tion raised on behalf of the direct recruits that it was not open to the State to make a retrospective declaration with regard to posts being made equivalent to senior posts, this Court observed: "From the point of view of workability of the rule as well as the circumstances and the condi tions of service it may not always be practicable to make such prospective declaration.
It is only when the Government has found that it is necessary or desirable to declare such posts equivalent to senior posts that the Government will do so.
That will be usually possible after the Government will have considered several factors, namely, finance, structure of the service, the personnel fit for undertaking the post.
Normally, the promotees obtain promotion from the State Civil Service after long service.
That is why rule 3(3)(b) of the Regulation of Seniority Rules is designed to arrive at a fair adjustment of the competing claims of the direct recruits and the promotees.
To hold that a promotee could not get the benefit of officiation unless the post was declared as equivalent to a senior cadre post before the promotee was appoint (1) f19721 3 S.C.R. 548.
708 ed to officiate might defect the policy of the Government.
A promotee may be officiating continuously for a long period and his name may be included in the select list after some time.
Again a person who officiates continuously for a long time may thereafter be not included in the select list.
Such a person might deprive a person who would otherwise be found suitable for appointment by promotion after similar officiation in a similar post.
It is only when the State Government finds that it is desirable to declare the post equivalent to a senior post inter alia by reason of the effi ciency of the person which has entitled him to promotion that the consequential necessity .arises for giving him that senior post by requisite decla ration of a senior post.
A retrospective declara tion therefore is in the scheme of things practical as well as reasonable.
" Counsel for the respondents drew our attention to the words "for being appointed" in rule 47 to contend that the rule was meant to be applied only prospectively.
According to counsel the rule when it says that nothing in the general rules shall limit or abridge the power of the Governor to relax the rigour of these rules in the case of any class or category of persons "for being appointed to any civil post", it contemplates an appointment in future.
We do not think that this contention has any force.
The words "for being appointed" in the context in which they appear do not neces sarily refer to a future appointment.
The validity of an appointment to any civil post may be questioned after the appointment has been made and there is nothing to rule 47 to indicate that the Governor in exercise of power under this rule cannot deal with such a case, if this was required in the interest of justice and equity.
It appears that after the Judgment of the Division Bench of the High Court was delivered on November 11, 1974, by a notification dated November 25, 1974 the provision in the Special Rules setting out the qualifications required for the post of Tahsildar was amended by adding a proviso saying that "the requirement in regard to being an approved proba tioner and the exercise of powers of a Magistrate shall not apply in respect of those Deputy Tahsildars in the Telengana area for whom promotion to the category of Deputy Tahsildar was or is the first stage of promotion after the 1st Novem ber 1956".
The notification states that the amendment shall be deemed to have come into force on the 1st June, 1961.
The amendment thus appears to cover the case of the said 63 Deputy Tahsildars.
However, the rule as amended does not arise for consideration in this appeal which directed against the judgment of the High Court passed on the rule as it stood prior to the amendment and we do not express any opinion on the amended rule.
The appeal is allowed, the Judgment of the High Court is set aside and the writ petition is dismissed.
In the circumstances of the ease we make no order as to costs.

summary:
The respondent filed a Writ Petition in the High Court questioning the inclusion in the list of Deputy Tahsildars eligible for promotion to the post of Tahsildars of the names of 63 persons who were impleaded as respondents 4 to 66, in the Writ Petition.
The 63 persons were working as Upper Division Clerks in the erstwhile State of Hyderabad.
The State Government in consultation with the Government of India issued an order on 7 4 1960 stating that the first stage promotion of the employees of the erstwhile Government of Hyderabad should be governed by the Hyderabad Cadre and Recruitment Rules for promotion which were applicable to them before that date.
The subsequent promotions after the first stage of promotion would be governed by the relevant rules in force in the newly formed State.
By virtue of this order the aforesaid 6 employees were promoted to the post of Deputy Tahsildars which was the first stage promotion for them.
In 1962, Andhra Pradesh Civil Services (Coopera tion Branch ) Special Rules were framed, but were made effective retrospectively from 1st November, 1956.
Under rule 4(a) the State Government has to prepare in consulta tion with the Public Service Commission a list of persons eligible for appointment as Tahsildars.
The 63 erstwhile employees of the Government of Hyderabad did not have the opportunity to acquire the qualifications prescribed under rule 4(a) of the Special Rules on their promotion as Deputy Tahsildars.
The Government felt that they should not be left out of consideration for appointment, as Tahsildars and asked the Public Service Commission to consider the names of such Deputy Tahsildars for inclusion in the list of eligible candidates assuring the Public Service Commission that the Government would relax the requirements as to qualification in favour of such Deputy Tahsildars provided they were otherwise found suitable by the Commission.
By order dated 30 6 1971 the Governor relaxed the provisions of rule 4(a) of the Special Rules in exercise of powers under section 47 of the Andhra Pradesh State and Subordinate Services Rules 1962.
The respondents filed a Writ Petition for quash ing the order dated 30 6 1971 in the High Court.
The re spondents contended that as a result of the said order their claims for appointment to the posts of Tehsildar had been passed.
over in favour of unqualified persons.
The High Court allowed the Writ Petition.
The High Court held that rule 47 did not confer any power to relax a rule retrospec tively.
It was also held that under rule 47 power was given to Governor personally and therefore the exercise of it by the Governor was invalid.
In an appeal by special leave the appellant contended: 1.
That rule 47 did not confer any power to relax a rule retrospectively.
The power was given to the Governor personally to relax the rules and since the impugned order was not passed by the Governor but by the Govt.
of Andhra Pradesh it was invalid.
Allowing the appeal, HELD: 1.
The view taken by the High Court that the power conferred by rule 47 is exercisable by the Governor personally is based on the judgment 703 in Sardarilal vs Union of India, [1971] 3 S.C.R. 461.
The said decision stands overruled by the later decision of this Honble Court in Shamsher Singh vs State of Punjab, ; [706 E F] 2 Rule 47 empowers the Governor to relax the general rules in such manner as may appear to him to be just and equitable.
It is clear that power under rule 47 is to be exercised in the interest of justice and equity.
It is not difficult to see that the occasion for acting under rule 47 arises after the attention of the Government is drawn to a case where there has been a failure of justice.
In all these cases justice can be done only by exer cising the power under rule 47 with retrospective effect otherwise the object and purpose of the rule will be largely frustrated.
Such a provision is not unique and is to be found in several statutory rules.
[707 A C] R.P. Khanna & Ors.
vs S.A.F. Abbas & Ors., ; , followed. '


judgement:
ppeal (Civil Appeal No. 57 of 1950) from a judgment and decree of the High Court of Judicature at Bombay dated 1st April, 1948, in Appeal No. :365 of 1947 reversing a judgment of the Joint Civil Judge at Ahmedabad, dated 14th October, 1947, in Suit No. 174 of 1945.
B. Somayya (Jindra Lal, with him) for the appel lants.
C.K. Daphtary (Sri Narain Andley, with him) for the respondents.
February 23.
The judgment of the Court was deliv ered by MAHAJAN J.
The appellants are owners of a property known as "Bharat Bhuvan Theatre" at Ahmedabad.
The respond ents are the lessees of the said theatre.
The term of the lease was to expire on the 2nd 222 December, 1945, unless the lessees gave to the land lords three months previous notice in writing of their intention of exercising their option of renewal of the lease for a further period of two years.
On the 13th December, 1945, the appellants filed the suit out of which this appeal arises for ejectment of the respondents and for recovery of certain amounts.
This suit was decreed on the 14th October, 1947, on the following findings: (1) that the respondents had not exercised the option of the renewal of the lease according to the stipulations contained in the lease, (2) that they had committed breaches of the terms of the lease, and (3) that they were not protected by the Rent Restriction Act.
An enquiry was directed into the amount of mesne prof its.
The respondents filed an append in the High Court against the decree of the Joint Civil Judge on the 10th November, 1947.
The appeal was heard by a Bench of the High Court (Weston and Dixit JJ.) on the 26th February, 1948, and was decided on the 1st April, 1948.
The judgment and decree of the Joint Civil Judge were reversed and the plaintiff 's suit was dismissed.
The High Court affirmed the finding of the trial court on the first point and held in agreement with it that the respondents had not proved that they gave three months previous notice in writing to the appellants for renewal of the lease as required by clause 4 (2) of the lease.
It reversed the finding of the trial Judge on the point that the respondents had committed breaches of the terms contained in clause 2 (20) of the lease.
Finally, it reached the conclusion that although the decree appealed from was right on the date it was made, yet in view of the altered circumstances created by reason of coming into operation of Act LVII of 1947 the appellants were not enti tled to recovery of possession of the suit premises.
Being aggrieved by the judgment of the High Court, the appellants obtained a certificate and filed an appeal in this court on the 7th March, 1949, and it is now before us for decision.
It was contended before the High Court that the appeal being in the nature of a rehearing, it should be 223 decided in accordance with the provisions of Act LVII of 1947 which came into force on the 13th February, 1948, and not in accordance with the provisions of the Act in force at the time when the decree was passed by the trial court.
In other words, the contention was that there having been a change in the law after the date of the decree passed by the trial Judge and before the appeal was heard, the rights of the parties should be determined in accordance with the law as it stood on the date of the hearing of the appeal.
The High Court gave effect to this contention and set aside the decree made for ejectment of the respondents.
Learned counsel for the appellants challenged the deci sion of the High Court before us on three grounds: (1) that assuming that the appeal had to be decided by the High Court in accordance with the provisions of Act LVII of 1947, the provisions of that Act had no application to pending ap peals which had been excluded from its ambit; (9,)that Act LVII of 1947 had been amended by Bombay Act III of 1949 and that the appeal pending in this court should be decided in accordance with the provisions of the amended Act which excluded pending appeals from the purview of Act LVII of 1947; and (3) that the High Court wrongly reversed the trial court 's finding that the respondents had committed breaches of the terms contained in clause 2 (20) of the lease.
The learned counsel for the respondents besides controverting the contentions raised on behalf of the appellants contended that both the courts had erred in holding that the respondents had not proved that they exer cised the option of renewal of the lease according to the stipulations contained therein.
In our opinion, the decision of the appeal depends solely on the construction of sections 12 and 50 of Act LVII of 1947.
The question to decide is whether the Bombay Rents, Hotel and Lodging House Rates Control Act, LVII of 1947, which was enacted on the 19th January, 1948, and which came into force on the 13th February, 1948, has applica tion to 29 224 pending appeals or whether its retrospective effect is limited to cases mentioned in section 50 of the Act.
The point whether the option of renewal was exercised according to the covenants of the lease is concluded by a concurrent finding of fact and nothing that Mr. Daphthary said in support of his contention in any way shakes that finding.
The case must therefore be decided on the assump tion that the respondents did not exercise the option given to them under the lease for its renewal.
We are also not impressed with the argument of the learned counsel for the appellants that the High Court wrongly reversed the finding of the trial Judge on the point that the respondents commit ted breaches of the terms of the tease.
We should not howev er be taken to concur in all the reasons given by the High Court for reversing that finding.
Whether the High Court was right in holding that the provisions of Act LVII of 1947 have application to appeals pending at the time when that Act came into force; the answer to this question depends on the construction to be placed on sections 12 and 50 of Act LVII of 1947.
Section 12 of the Act is in these terms: " (1) A landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay, the amount of the standard rent and permitted increases, if any, and observes and performs the other conditions of the tenancy, in so far as they are consistent with the provisions of this Act.
(2) No suit for recovery of possession shall be insti tuted by a landlord against a tenant on the ground of non payment of the standard rent or permitted increases due, until the expiration of one month next after notice in writing of the demand of the standard rent or permitted increases has been served upon the tenant in the manner provided in section 106 of the .
(3) No decree for eviction shall be passed in any such suit if, at the hearing.
of the suit, the tenant pays or tenders in court the standard rent or permitted increases then due together with the costs of the suit.
225 Explanation In any case where there is a dispute as to the amount of standard rent or permitted increases recovera ble under this Act the tenant shall be deemed to be ready and willing to pay such amount if, before the expiry of the period of one month after notice referred to in sub section (2), he makes an application to the court under sub section (3) of section 11 and thereafter pays or tenders the amount or rent or permitted increases specified in the order made by the court.
" This is the substantive section giving protection to the tenant against ejectment.
Section 50 which occurs in dealing with miscellaneous matters is the repeal section.
It repeals the Act of 1939 and the Act of 1944, and while repealing these statutes it provides as follows: "Provided that all suits and proceedings (other than execution proceedings and appeals) between a landlord and a tenant relating to the recovery or fixing of rent or posses sion of any premises to which the provisions of apply and all suits and proceedings by a manager of a hotel or an owner of a lodging house against a lodger for the recovery of charges for, or possession of, the accommodation provided in a hotel or lodging house situate in an area to which applies, which are pending in any Court, shall be transferred to and continued before the courts which would have jurisdiction to try such suits or proceed ings under this Act, and thereupon all the provisions of this Act and the rules made thereunder shall apply to all such suits and proceedings.
Provided further that (a) every order passed or act done by the Control lers under of the Bombay Rents, Hotel Rates and Lodging House Rates (Control) Act, 1944, and every order or act deemed to have been passed or done under that Part shall be deemed to have been passed or done under this Act; and (b) all proceedings pending before the Controllers under Part IV of that Act shall be transferred to and continued before the Controllers appointed under this 226 Act as if they were proceedings instituted before the Con trollers under this Act" The High Court held that section 50 merely provided for transfer of pending suits and proceedings to courts given jurisdiction under the Act to hear them and that from its ambit execution proceedings and appeals were excluded be cause no question could arise of their being transferred from one court to another and that an appeal being a contin uation of the suit and in the nature of a re hearing, the provisions of section 12 should be applied to pending ap peals.
The opinion expressed by the Division Bench on the construction of sections 12 and 50 of the Act was questioned in Nilkanth vs Rasiklal (J), and the matter was referred to a Full Bench.
The Full Bench overruled the decision reached by the Division Bench on the construction of section 50 and observed that it was clear that in terms the provi sions of the new Act and the rules made thereunder are made to apply only to such suits and proceedings which are trans ferred under the provisions of this section and that its retrospective effect is confined to what is expressly stated in section 50 of the Act.
We are in respectful agreement with the view expressed by the Full Bench.
On a plain reading of the language of sections 12 and 50 it seems clear to us that the Act was given retrospective operation only to a limited extent and execution proceedings and appeals were excluded from this effect and were to be governed by the provisions of the law in force at the time when the decrees were passed.
The concluding words of section 50 "and there upon all the provisions of this Act and the rules made thereunder shall apply to all such suits and proceedings" fully bear out this construction.
Mr. Daphthary contended that the whole object of section 50 was to make provision for transfer of pending cases to courts which were given jurisdiction under the Act to hear them and the section did not concern itself with the extent of the retrospective operation of the Act, and that section 12 of the Act which gives protection to tenants should (1) A. I. R. 227 be construed as having retrospective effect.
In our opinion this contention is not sound.
Section 50 cannot be de scribed as a section providing merely for transfer of pend ing cases to courts having jurisdiction to deal with them.
It is on the other hand a" repeal" section in the new stat ute.
It repeals the two earlier statutes, and while repeal ing them it provides that the repeal shall not affect "executions and appeals" and that the provisions of the Act shall apply to all pending suits which shall be transferred to the courts having jurisdiction to hear them under section 28 of the Act.
We are also inclined to agree with the view of the Full Bench that section 12 is in terms prospective and not retrospective.
Sub section (2) clearly relates to suits which may be instituted after the Act comes into force.
It cannot apply to suits which were already pending when the Act was put on the statute book.
Sub section (3) which gives the right to the tenant to pay or tender the rent at the hearing of the suit only applies to those suits which may be instituted after the Act comes into operation because it in terms states "in such suit" and not "in any suit".
"Such suit" can only be a suit referred to in subsec tions (2) and (3) of section 12.
The result therefore is that, in our opinion, the High Court erroneously applied the provisions of Act LVII of 1947 to the appeal in this case and was wrong in allowing it on that basis.
In this view of the case it is unnecessary to deal with the alternative argument of the learned counsel that this appeal should be decided in accordance with the provisions of Act III of 1949.
We accordingly set aside the decree of the High Court dismissing the plaintiff 's suit and restore the decree of the trial Judge decreeing the plain tiff 's suit with costs.
Appeal allowed.

summary:
The Bombay Rents, Hotel and Lodging House Rates Control Act, LVII of 1947, which came into force on the 13th Febru ary, 1948, has no application to appeals which were pending at the time when the Act came into force.
Its retrospective effect is limited to cases mentioned in section 50 of the Act, that is to say, to suits and proceedings which were trans ferred under the provisions of the said section to the courts having jurisdiction under the Act.
Section 12 of the said Act is in terms prospective and not retrospective in effect.
Sub section (2) relates to suits which may be instituted after the Act comes into force and sub section
(3) also only applies to such suits.
Nilkanth vs Rasiklal (A.I.R. approved.


summary:
The Bill which came to be enacted as the Rajasthan Land Re forms and Resumption of Jagirs Act was prepared in the Ministerial Department of the Government of Rajasthan.
It was approved by the Rajpramukh on 8 2 1952, and reserved for the consideration of the President, who gave his assent to it on 13 2 1952.
By notification issued on 16 2 1952, the Act came into force on 18 2 1952.
In pursuance of section 21(1) of the Act, the State of Rajasthan issued notifications resuming the jagirs specified therein, whereupon petitions under article 226 of the Constitution were filed by the persons aggrieved challenging the validity of the Act before the Rajasthan High Court.
The petitions were dismissed and thereupon they filed petitions before the Supreme Court under article 32 of the Constitution of India, impugning the Act.
They contended inter alia that the Rajpramukh had no competence to enact the law, that the Bill was not prepared by the Rajpramakh as required by article 212 A(2), that resumption was not one of the topics of legislation enumerated either in the State List or in the Concurrent List in the Seventh Schedule of the Constitution and that the Act was therefore ultra vires the powers of the State, that the Act did not provide for adequate compensation nor was there any public purpose involved in it and therefore it contravened article 31(2), and that as the Act was discrimi natory it contravened article 14.
There were some special contentions that the Act was not saved by article 31 A, because the lands resumed were neither estates nor jagirs nor grants similar to jagirs, inams or muafi and that some of the properties sought to be resumed were not jagirs as defined in the Act and therefore the notifications under section 21 of the Act in so far as they related to them were illegal.
39 304 Held that, (1) the Rajpramukh was competent to enact the im pugned law, under article 385, as he was the authority functioning immediately before the commencement of the Constitution as the legislature of Rajasthan under article X (3) of the Covenant of the United State of Rajasthan.
The expression "Ordinance" in article X (3) must be construed as meaning "Law".
Article VII (3) of the Covenant has reference to the executive power which the Rulers had to resume jagirs and does not operate as a restriction on the legislative powers under article X (3).
The Legislature of the corresponding State mentioned in article 385 refers not to the legislature under the Constitution, but to the body or the authority which was functioning as the legislature of the State before the commencement of the Constitution and under article X (3) of the Covenant of the United State of Rajasthan, that authority was the Rajpramukh.
Article 385 does not require that that authority should have had absolute and unlimited powers of legislation.
If it was functioning as the legislative authority before the Constitution, it would, under the article, have all the powers conferred by the Constitution on the House or Houses of legislature of the States.
(ii) Article 212 A(2) which provides that the Rajpramukh should prepare the Bill, does not require that he should himself draft it.
It is sufficient if he decides questions of policy which are of the essence of the legislation.
It is open to the Rajpramukh to adopt a Bill prepared by his ministers and the only matter that will have to be con sidered is whether in fact he did so.
There is no provision in article 212 A(2) for the Rajpramukh approving of a Bill and an endorsement of approval on the Bill prepared in the ministerial department must therefore signify its adoption by him.
When the Bill is produced with an endorsement of approval under his signature, the question must be held to be concluded and any further discussion about the legislative or executive state of mind of the Rajpramukh must be ruled out as inadmissible.
(iii) The impugned Act is not ultra vires the powers of the State Legislature as the subject matter of the legislation is in substance acquisition of properties falling under entry 36 of List II of the Seventh Schedule.
Resumption and acquisition connote two different concepts, but whether the impugned Act is one for acquisition of jagirs or for their resumption must be determined with ref erence to the pith and substance of the legislation, the name given to it by the legislature not being decisive of the matter.
The resumption for which the Act provides is not in enforcement of the rights which the Rulers had to resume jagirs in accordance with the terms of the grant or the law applicable to it, but in exercise of the sovereign rights of eminent domain possessed by the State.
Under the circumstances, the taking of the properties is in substance acquisition notwithstanding that it is labelled as resumption.
The payment of compensation to the Jagirdars is consistent only with the taking being an acquisition and not resumption in 305 accordance with the terms of the grant or the law applicable to it.
Though the legislation also falls under entry 18 of List II of the Seventh Schedule, there being an entry 36 dealing with acquisition, it must be held that the Act falls under that entry and is valid.
(iv) The word 'jagir ' connoted originally grants made by Rajput Rulers to their clansmen for military services rendered or to be rendered.
Later on grants made for religious and charitable purposes and even to non Rajputs were called jagirs, and both in its popular sense and legislative practice, the word jagir came to be used as connoting all grants which conferred on the grantees rights in respect of land revenue, and that is the sense in which the word jagir should be construed in article 31 A.
The object of article 31 A was to save legislation which was directed to the abolition of intermediaries so as to establish direct relationship between the State and the tillers of the soil.
Construing the word in that sense which would achieve that object in full measure, it must be held that jagir was meant to cover all grants under which the grantees had only rights in respect of revenue and were not tillers of the soil.
Maintenance grants in favour of persons who were not cultivators such as members of the ruling family would be jagirs for purposes of article 31 A. (v) Bhomicharas.
The Bhomicharas are the representatives of Rajput Rulers who conquered the. country and established their sovereignty over it in the thirteenth century.
Later on the Ruler of Jodhpur imposed his sovereignty over the territory but permitted the previous rulers to continue in possession of the lands on payment of an annual sum.
The question was whether they held the lands as jagirs.
Held that, there could be a jagir only by grant by the Rul ing power but that such a grant need not be express, and could be implied and when the Ruler of Jodhpur imposed his sovereignty over the territory of the Bhomicharas but recognised their possession of the lands, it is as if there was annexation by him and re grant to them of these lands.
Vajesinghji Joravar Singji and Others vs Secretary of State [(1924) L.R. 51 I.A. 357] and Secretary of State vs Sardar Bustam Khan [(1941) L.R. 68 I.A. 109], referred to.
Though the Bhomicharas enjoyed large powers, their status was only that of subjects.
The status of a person must be either that of a sovereign or a subject.
There is no tertium quid.
The law does not recognise an intermediate status of a person being partly a sovereign and partly a subject.
And when once it is admitted that the Bhomicharas had acknowledged the sovereignty of Jodhpur, their status can only be that of a subject.
Even if the Bhomicharas did not prior to the enactment of the Marwar Land Revenue Act XL of 1949 hold the lands as grantees 306 from the State, they must be deemed to have become such grantees by force of section 169 of the Act which provides that all lands in the State vest in the Maharajah and all proprietary interests therein are deemed to be held under a grant from him.
The Bbomicharas bad by long usage and recognition and by the legislative practice of the State come to be recognised as jagirdars and their tenure is a jagir within the intendment of section 169.
For the purposes of article 31 A, it would make no difference whether the grant is made by the sovereign in the exercise of his prerogative right or by the legislature in the exercise of its sovereign rights, Grants which are the creatures of statutes called legislative grants are equally within the operation of that article.
Bhomicharas are, accordingly, within the operation of article 31 A. (vi) The position of Bhumias in Mewar is similar to that of Bhomicharas in Marwar and in addition it was a condition of the terms on which their title to the lands was recognised by the rulers of Chittoor and Udaipur, that they had to render military service when called upon and also pay quit rent.
Their title to the lands therefore rested on an implied grant and their tenure would be jagir even in its stricter sense.
Section 27 of the Mewar Government Kanoon Mal Act (V of 1947) enacts that all lands belong to His Highness and that no person has authority to take possession of any lands unless the right is granted by His Highness.
Section 106 (1) of the Act declares that a Tikanadar, Jagirdar, Muafidar or Bhumia shall have all such revenue rights in the lands comprised in his jagir, muafi, or Bhom under this Act, as are granted to him by His Highness".
The effect of these provisions was to impress on the Bhom tenure the charac teristics of a grant.
Article 13, Clause (1) of the Constitution of Mewar provided that, "no person shall be deprived of his life, liberty or property without due process of law, nor shall any person be denied equality before the law within the territories of Mewar".
It was contended for the petitioners that the impugned Act was void as contravening the above provisions.
Held that, as the authority which enacted the Constitution of Mewar was His Highness, it could be repealed or modified by the same authority, and the impugned Act must be held to have repealed the Constitution to the extent that it was in consistent with it.
(vii) The Tikanadars of Shekwati got into possession of lands as ijaradars or lessees and were subsequently treated as jagirdars.
Their tenure was, if not jagirs, at least other "similar grants" within article 31 A.
It is included in Schedule I to the impugned Act as item 6.
The nature of the tenures of lands held by Subeguzars, Mansubdars, maintenance holders (Lawazma and Kothrikarch), Tikanadars and of Naqdirazan, Sansan grants, etc., considered, 307 (viii) The Khandela estate was granted in 1836 on a permanent lease.
The definition of jagir in section 2(h) includes the tenures mentioned in Schedule I to the Act and Istimrari tenure is item 2 therein.
The question was whether the Istimrar ijara was within item 2.
Held that, the essential features of Istimrari tenure are that the lands are assessed to a nominal quit rent, and that it is permanent.
The amount of Rs. 80,001 fixed as assessment under the deed of 1836 cannot be said to be nominal.
The grant is, therefore, not an Istimrari tenure, but a permanent Izara.
(ix) Objections raised as to the validity of the Act on the ground that it did not provide for payment of compensation, that there was no public purpose involved in the resumption and that therefore it contravenes article 31(2) or that the provisions of the Act offend article 14, are barred by the provisions of article 31 A of the Constitution.
Even apart from article 31 A, the impugned Act must be held to be supported by public purpose and is not in contravention of article 31(2).
Nor is there a contravention of article 14, as under the Act all jagirs are liable to be resumed, no power having been conferred on the Government to grant exemption.
State of Bihar vs Maharajadhiraja Sir Kameshwar Singh of Darbhanga and Others ([1952] S.C.R. 889) and Biswambhar Singh vs The State of Orissa and Others ([1954] S.C.R. 842), referred to.
The true scope of the rule of ejusdem generis is that words of a general nature following specific and particular words should be construed as limited to things which are of the same nature as those specified and not its reverse, that specific words 'which precede are controlled by the general words which follow.