judgement:
Appeal No. 258/76.
Appeal by Special Leave from the Judgment and Order dated 3 1 75 of the Allahabad High Court in Second Appeal No. 2261/66.
G.N. Dikshit and O.P. Rana, for the Appellant.
Promod Swarup and Manoj Swarup, for the Respondent.
The Judgment of the Court was delivered by JASWANT SINGH, J.
This appeal by special leave is directed against 464 the judgment and decree dated January 3, 1975, of the High Court of Judicature at Allahabad setting aside the judgment and decree dated July 27, 1965, of the Second Additional Civil Judge, Jhansi, whereby the latter affirmed the judg ment and decree of the trial Court dismissing the respond ent 's suit for declaration that order dated November 29, 1961, passed by the Superintending Engineer, Circle IV, Irrigation Works, Jhansi, U.P. terminating the services of the respondent was void and ineffective in law and he was entitled to recover a sum of Rs. 2147/ as arrears of pay and dearness allowance from the appellant.
The facts leading to this appeal are: The respondent herein was appointed as a temporary clerk in Gur Sarain Canal Division, Jhansi.
on May 16, 1954.
Seven years later, he was required to appear in a departmental examination which was held in July, 1961.
On July 12.
1961, an optional typewriting test was held by the Department.
In that test the Executive Engineer, Investigation and Planning Division, Jhansi, it is alleged, detected Gopal Deo Santiya, a clerk of Bhander Canal Division, attempting to personate and appear for the respondent.
He obtained the explanation of both the clerks and reported the matter to the Superintend ing Engineer of his Division.
Considering the explanations tendered by the clerks to be unsatisfactory, the Superin tending Engineer brought the matter to the notice of the Chief Engineer, Irrigation Department, Lucknow.
The Chief Engineer wrote back to the Superintending Engineer asking him to award suitable punishment to the aforesaid two clerks.
The Superintending Engineer thereafter issued orders terminating the services of both the clerks.
The order that was passed in respect of and served on the respondent ran as follows : "No. E 70/IV/259 Dated Jhansi, November 29, 1961 OFFICE MEMORANDUM Shri Ram Chandra Trivedi, Temporary Routine Grade Clerk is hereby served with one month 's notice to the effect that his services shall not be required after one month from the date of receipt of this Notice.
sd/ S.P. Sahni, Superintending Engineer.
" The respondent attempted to have the above order re scinded by making representations to the Chief Engineer, and the Minister of Irrigation, U.P. which proved abortive.
The respondent thereupon challenged the aforesaid order of termination of his services by instituting the aforesaid suit averring inter alia that the order not being an order of termination of his service simpliciter but being one passed by way of punishment, attracted the applicability of Article 311 of the Constitution which not having been com plied with rendered the order void and ineffective, in law.
The suit was resisted by the appellant on the ground that the respondent was only a temporary hand; that under the contract of service as also the rules applicable to tempo rary Government servants, the respondent was liable to be discharged any time even though an enquiry in respect of a charge of misconduct might have been insti 465 tuted against him; and that the impugned order not having been passed a measure of punishment but being a simple order of termination of the respondent 's services without casting any stigma on him or visiting him with evil conse quences, was valid both under the aforesaid rules and the contract of service.
The grounds of attack made against the impugned order did not find favour with the trial Court which dismissed the suit.
Aggrieved by the judgment and decree of the trial Court, the respondont took the matter in appeal to the Second Additional Civil Judge, Jhansi, who affirmed the judgment and decree of the trial Court.
Both the Courts found that the impugned order was valid in law as it was a simple order of termination of service and not having been passed by way of punishment, it did not attract the provisions of Article 311 (2) of the Constitu tion.
Dissatisfied with these judgments, the respondent preferred a second appeal to the High Court of Judicature at Allhabad, which as already stated was allowed by a learned Single Judge of that Court.
While oversetting the concurrent findings of fact ar rived at by the courts below and decreeing the respondent 's aforesaid suit, the learned single Judge went through the official correspondence preceding the passing of the im pugned order and observed that a close scrutiny of the facts on record showed that the order was passed by way of punish ment on the basis of the enquire proceedings and as a result of the recommendation made by the Executive Engineer fol lowed by the direction issued by the Chief Engineer that the respondent should be suitably punished.
It is against this judgment and decree that the present appeal has been pre ferred by the State of U.P. Mr. Dixit, learned counsel appearing on behalf of the appellant, has urged that the High Court acted illegally in reversing the concurrent findings of fact arrived at by the courts below and quashing the impugned order which was a simple order of termination of the respondent 's services and had been validly passed in accordance with the rules relat ing to temporary Government servants and the contract of service.
He has further contended that the learned Single Judge could not probe into the departmental files to support his finding that the impugned order was passed against the respondent by way of punishment.
He has.
in support of his submissions, relied upon a number of decisions of this Court.
As against this, it has been vehemently urged by Mr. Garg, learned counsel for the respondent, that the constitutional position in regard to orders of the impugned nature is not well settled in view of the conflicting decisions of this Court particularly in view of the observations made in State of U.P. & Ors.
vs Sughar Singh(1) and The State of Punjab vs
P.S. Cheema (2), Mr. Garg has further contended that the circumstances attending the issue of the impugned order clearly establish that it was passed by way of punish ment.
It would, in our opinion, be appropriate at the outset to refer to the I decisions of this Court which have an important bearing on the instant (1) ; =[1974] 1 S.C.C. 218.
(2) A.I.R 1975 S.C. 1096.
466 case and to dispel the doubts sought to be created by Mr. Garg with regard to the constitutional position in relation to the applicability of Article 311 (2) of the Constitution, resulting from the said decisions.
In Satish Chandra Anand vs The Union of India(1), it was held by this Court that any and every termination of service does not amount to dismissal or removal and a termination of service brought about by exercise of a contractual right is not per se dismissal or removal.
On the same reasoning, this Court laid down in Shyam Lal vs State of U.P.(2) that the termination of service by compulsory retirement in terms of specific rule regulating the conditions of service is not tantamount to the infliction of punishment and does not attract Article 311(2).
In Parshotam Lal Dhingra vs Union of India(3) which is regarded as the Magna Carta of the Indian Civil Servant Das, C.J. speaking for the majority made the following illuminat ing observations : "Shortly put, the principle is that when a servant has right to a post or to a rank either under the terms of the contract of employment, express or implied, or under the rules governing the conditions of his service, the termination of the service of such a servant or his reduction to a lower post is by itself and prima facie a punish ment, for it operates as a forfeiture of his right to hold that post or that rank and to get the emoluments and other benefits attached thereto.
But if the servant has no right to the post, as where he is appointed to a post, permanent or temporary either on probation or on an officiating basis and whose temporary service has not ripened into a quasi permanent service as defined in the Temporary Service Rules, the termination of his employment does not deprive him of any right and cannot, therefore, by itself be a punishment.
One test for determining whether the termination of the service of a Government servant is by way of punishment is to ascertain whether the servant, but for such termination, had the right to hold the post.
If he had a right to the post as in the three cases hereinbefore mentioned, the termination of his service will by itself be a punishment and he will be entitled to the protection of Article 311.
In other words and broadly speaking, article 311 (2), will apply to those cases where the Government servant, had he been employed by a private employ er, will be entitled to maintain an action for wrongful dismissal, removal or reduction in rank.
To put it in another way, if the Government has, by contract, express or implied, or, under the rules,the right to terminate the employment at any time, then such termination in the manner provided by the contract or the rules is prima facie and per se not a punishment and does not attract the provi sions of article 311.
It does not, however, follow that, except in the three cases mentioned above.
in all other cases.
termination of (1) ; (2) [1955]1 S.C. R. 26.
(3) section C. R. 828.
467 service of a Government servant who has no right to his post, e.g., where he was appointed to a post, temporary or permanent, either on probation or on an officiating basis and had not acquired a quasi permanent status, the termina tion cannot, in any circumstance, be dismissal or removal from service by way of punishment ' Cases may arise where the Government may find a servant unsuitable for the post on account of misconduct, negligence, inefficiency or other disqualification.
If such a servant was appointed to a post, permanent or temporary, either on probation or on an offciating basis, then the very transitory character of the employment implies that the employment was terminable at any time on reasonable notice given by the Government.
Again if the servant was appointed to a post, permanent or tempo rary, on the express condition or term that the employment would be terminable on say a month 's notice as in the case of Satish Chander Anand vs The Union of India (supra), then the Government might at any time serve the requisite notice.
In both cases the Government may proceed to take action against the servant in exercise of its powers under the terms of the contract of employment, express or implied, or under the rules regulating the conditions of service, if any be applicable, and ordinarily in such a situation the Government will take this course.
But the Government may take the view that a simple termination of service is not enough and that the conduct of the servant.
has been such that he deserves a punishment entailing penal consequences.
In such a case the Government may choose to proceed against the servant on the basis of his misconduct, negligence, inefficiency or the like and inflict on him the punishment of dismissal, removal or reduction carrying with it the penal consequences.
In such a case the servant will be entitled to the protection of article 311 (2).
The position may, therefore, be summed up as follows: Any and every termination of service is not a dismissal, removal or reduction in rank.
A termination of service brought about by the exercise of a contractual right is not per se dismissal or removal, as has been held by this Court in Satish Chander Anand vs The Union of India (supra).
Likewise the termination of service by compulsory retire ment in terms of a specific rule regulating the conditions of service is not tantamount to the infliction of a punish ment and does not attract article 311 (2), as has also been held by this Court in Shyam Lal vs The State of Uttar Pradesh (supra).
In either of the two above mentioned cases the termination of the service did not carry with it the panel consequences of loss of pay, or allowances under r. 52 of the Fundamental Rules.
It is true that the misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which influences the Government to take action under the terms of the contract of employment or the specific service rule, nevertheless, if a 468 right exists, under the contract or the rules, to termi ate the service the motive operative on the mind of the Government is, as Chagla C.J. has said in Shrinivas Ganesh vs Union of India(1) wholly irrelevant.
In short, if the termination of service is founded on the right flowing from contract of the service rules then, prima facie, the termination is not a punishment and carries with it no evil consequences and so article 311 is not attracted.
But even if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punish ment of dismissal or removal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of article 311 must be complied with.
As already stated if the Servant has got a right to continue in the post then, unless the contract of employment or the rules provide to the contrary, his services cannot be termi nated otherwise than for misconduct, negligence, ineffi ciency or other good and sufficient cause.
A termination of the service of such a servant on such grounds must be a punishment and, therefore, a dismissal or removal within article 311, for it operates a forfeiture of his right and he is visited with the evil consequences of loss of pay and allowances.
It puts an indelible stigma on the officer affecting his future career.
A reduction in rank likewise may be by way of punishment or it may be an innocuous thing.
If the Government servant has a right to a particular rank, then the very reduction from that rank will operate as a penalty, for he, will then lose the emoluments and privi leges of that rank.
If, however, he has no right to the particular rank, his reduction from an officiating higher rank to his substantive lower rank will not ordinarily be a punishment.
But the mere fact that the servant has no title to the post or the rank and the Government has, by contract, express or implied, or under the rules, the right to reduce him to a lower post does not mean that an order of reduction of a servant to a tower post or rank cannot in any circum stances be a punishment.
The real test for determining whether the reduction in such cases is or is not by way of punishment is to find out if the order for the reduction also visits the servant with any penal consequences.
Thus if the order entails or provides for the forfeiture of his pay or allowances or the loss of his seniority in his substantive rank or the stoppage or postponement of his future chances of promotion, then that circumstance may indicate that although in form the Government had purported to exercise its right to terminate the employment or to reduce the servant to a lower rank under the terms of the contract of employment or under the rules, in truth and reality the Government has terminated the employment as and by way (1) A.I.R. 1956 Bom.
469 of penalty.
The use of the expression 'terminate ' or 'discharge ' is not conclusive.
In spite of the use of such innocuous expressions, the court has to apply the two tests mentioned above, namely, (1 ) whether the servant had a right to the post or the rank or (2) whether he has been visited with evil consequences of the kind hereinbefore referred to ? If the case satisfied either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as.
a dismissal or removal from service or the reversion to his substantive rank must be regarded as a reduction in rank and if the requirements of the rules and article 311, which give protection to Government servant have not been complied with, the termination of the service or the reduction in rank must be held to be wrongful and in violation of the constitutional right of the servant." In Gopi Kishore Prasad vs Union of India(1), it was held by this Court that if the Government proceeded against the probationer in the direct way without casting any aspersion on his honesty or competence, his discharge would not have the effect of removal by way of punishment, but if instead of taking the easy course, the Government chose the more difficult one of holding an enquiry into his alleged miscon duct and branded him as a dishonest and incompetent officer, it would attract Article 311 (2) of the Constitution.
In The State (2) Orissa & Anr.
vs Ram Narayan Das(2) where July 28, 1954, a notice was served on the respondent who was appointed as a Sub Inspector on probation in the Orissa Police Force in the year 1950 to show cause why he should not be discharged from service for gross neglect of duties and unsatisfactory work and where the explanation tendered by him was considered to be unsatisfactory by the Deputy Inspector General of Police who passed an order discharging the respondent from service for unsatisfactory work and conduct and where the respondent contended that the order was invalid on two grounds: (i) that he was not given a reasonable opportunity to show cause against the proposed action within the meaning of Article 311 (2), and (ii) that he was not afforded an opportunity to be heard nor was any evidence taken on the charge, it was held that the order of discharge did not amount to dismissal and did not attract the protection of Article 311 (2) of the Constitution as the respondent was a probationer and had no right to the post held by him and his services were terminated in accordance with the rules which permitted his being discharged at any time during the period of probation.
The case of Madan Gopal V. State of Punjab(3) where the order terminating the employment of the appellant who was a temporary Government servant was qashed on the ground that it was in the nature of an order of punishment which had been passed without complying with the provisions of Article 311 (2) of the Constitution is clearly distinguishable.
In that case, the order of termination of the (1) A.I.R. 1960 S.C. 689.
(2) ; (3) [1963] 3 S.C.R. 716.
470 appellant 's service which was preceded by an enquiry into his alleged misconduct was based on the finding of miscon duct which amounted to casting a stigma affecting his future career.
In Rajendra Chandra Banerice vs Union of India(1) where the appellant was appointed as a probationer for one year (which was extended from time to time) on condition that his services might be terminated without any notice and cause being assigned during that period and he agreed and joined the service and where later on during the period of his probation, he was called upon to show cause why his services should not be terminated and he was finally in formed that the explanation given by him was not satisfacto ry and his services would stand terminated on a specified date, it was held by this Court that the termination of his service was not by way of punishment and could not amount to dismissal or removal within the meaning of Article 311.
In Champaklal Chimanlal Shah vs The Union of India(2) where the appellant, whose appointment being temporary, was liable to be terminated on one month 's notice on either side was informed without assigning any cause after the expiry of about five years that his services would be terminated with effect from a specified date but before the termina tion, he was called upon to explain certain irregularities and was also asked to submit his explanation and to state why disciplinary action should not be taken against him and certain preliminary enquiries were also held against him in which he was not heard, but no regular departmental enquiry followed and the proceedings were dropped, it was held by this Court after considering the cases of Gopi Kishore Prasad vs Union of India (supra), State of Orissa vs Ram Narayan Das (supra).
Madan Gopal vs State of Punjab (supra) and Jagdish Mitter vs Union, of India(3) that such a regular departmental enquiry though contemplated was not held against the appellant and no punitive action was taken against him, there was no question of the case being gov erned by Article 311(2) or the Constitution.
It was fur ther held in that case that it is only when the Government decides to hold a regular departmental enquiry for the purpose of inflicting one of the three major punishment '; that the Government servant gets the protection of Article 311.
In State of Punjab & Anr.
vs Shri Sukh Raj Bahadur(4) where the Punjab Government reverted the respondent from his officiating appointment in the Punjab Civil Service (Executive Branch) to his substantive post in the Delhi Administrative after issuing him a charge sheet to which the respondent replied but the enquiry was not proceeded with, it was held by this Court that the respondent could not complain against the order reverting him to his former post because the order of reversion was not by way of punishment.
In that case, Mitter, J. who spoke for the Bench laid down the following propositions : (1) ; (2) (3) A.I R. (4) ; 471 "1.
The services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without any thing more would not attract the operation of article 311 of the Constitution.
The circumstances preceding or attendant on the order of termination of service have to be examined in each case, the motive behind it being immaterial.
If the order visits the public servant with any evil consequences or casts an aspersion against his character or integrity, it must be considered to be one by way of punishment, no matter whether he was a mere probationer or a temporary servant.
An order of termination of service in unex ceptionable form preceded by an enquiry launched by the superior authorities only to ascertain whether the public servant should be retained in service, does not attract the operation of article 311 of the Constitution.
If there be a fulI scale departmental enquiry envisaged by article 311 i.e. an Enquiry Officer is appointed, a charge sheet submitted, explanation called for and considered, and order of termina tion of service made thereafter will attract the operation of the said Article.
" The principles laid down in Parshotam Lal Dhingra 's case (supra), Champaklal Chimanlal Shah 's case (supra), and Shri Sukh Raj Bahadur 's case (supra) were reiterated by this Court in Union of India & Ors.
R.S. Dhaba(1).
State of Bihar & Ors.
vs Shiva Bhikshuk Mishra(2) and R.S. Sial vs The State of U.P. & Ors.(3) where it was laid down that the test for attracting Article 311(2) of the Constitution is whether the misconduct or negligence is a mere motive for the order of reversion or termination of service or whether it is the very foundation of the order of termination of service of the temporary employee.
The form of the order, however, is not conclusive to its true nature.
The entirety of circumstances preceding or attendant on the impugned order must be examined by the court and the over riding test will always be whether the misconduct is a mere motive or is the very foundation of the order.
In R.S. Sial vs The ;State of U.P. & Ors.
(3) to which one of us (brother Khanna, J.) was a party, it was made clear in unambiguous terms that it may be taken to be well settled that even though misconduct, negligence, ineffi ciency or other disqualifications may be the motive or the inducing factor which influence the Government to take action under the express or implied terms of the contract of employment or under the statutory rule, nevertheless if a right exists, under (1) ; (2) (3) 472 the contract or the rules to terminate the services the motive operating on the mind of the Governments is wholly immaterial.
The same rule would hold good if the order passed is not for termination of service but for reversion of a Government servant from a higher post to a lower post which he holds in a substantive capacity.
The decision of this Court in State of Uttar Pradesh & Ors.
vs Sughar Singh (supra) where the order of the re spondent 's reversion held to have been passed by way of punishment to which our attention has been drawn by Mr. Garg and which has led to a certain amount of misunderstanding turned upon a clear statement made before the High Court by the Standing Counsel for the State that the foundation of the order of reversion was the adverse entry made in his confidential character roll.
The constitutional position has now been made crystal clear by a Bench of seven Judges of this Court in Shamsher Singh & Anr.
vs State Punjab(1) where the learned Chief Justice after an exhaustive review of the decisions of this Court observed : "No abstract preposition can be laid down that where the services of a probationer are termi nated without saying anything more in the order of termination than that the services are terminated it can never amount to a punishment in the facts and circumstances of the case.
If a probationer is discharged on the ground of misconduct, or ineffi ciency or for similar reason without a proper enquiry and without his getting a reasonable oppor tunity of showing cause against his discharge it may in a given case amount to removal from service within the meaning of Article 311 (2) of the Con stitution.
Before a probationer is confirmed the author ity concerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is suitable for the post.
In the absence of any Rules governing a probationer in this respect the authority may come to the conclu sion that on account of inadequacy for the job or for any temperamental or other object not involv ing moral turpitude the probationer is unsuitable for the job and hence must be discharged.
No punishment is involved in this.
The authority may in some cases be of the view that the conduct of the probationer may result in dismissal or removal on an inquiry.
But in those cases the authority may not hold an inquiry and may simply discharge the probationer with a view to giving him a chance to make good in other walks of life without a stigma at the time of termination of probation.
If, on the other hand, the probationer is faced with an enquiry on charges of misconduct or inef ficiency or corruption, and if his services are terminated without following the provisions of Article 311 (2) he can claim protection . . (1) ; 473 The fact of holding an inquiry is not always conclusive.
What is decisive is whether the order is really by way of punishment .
A proba tioner whose terms of service provided that it could be terminated without any notice and without any cause being assigned could not claim the protection of Article 311 (2).
An order terminating the services of a temporary servant or probationer under the Rules of Employment and without anything more will not attract Article 311.
Where a departmental enquiry is contemplated and if an enquiry is not in fact proceeded with Article 311 will not be attracted unless it can be shown that the order though unex ceptionable in form is made following a report based on misconduct.
" The Division Bench judgment of this Court in P.S. Chee ma 's case (supra) on which strong reliance has been placed by Mr. Garg is also clearly distinguishable and no help can be derived therefrom by the respondent.
In that case, both the trial Court and the first appellant Court had come to a concurrent finding of fact that the impugned order of termination was by way of punishment.
It would also be seen that in that case on a representation being made by the respondent to the then Chief Minister of the State, the latter after consideration of the matter had ordered that in view of the respondent 's previous good record, he did not deserve the "punishment of termination of service only on account of a few bad reports and that the respondent should continue in service and his case should be reviewed after he earned another report from the Excise and Taxation Commissioner for the year 1964 65".
In a recent decision of this Court in The Regional Manager & Anr.
vs Pawan Kumar Dubey(1) to which one of us was a party, Sughar Singh 's case (supra) which is the sheet anchor of Mr. Garg 's contention was also adverted to and it was explained therein that that case did not depart from earlier decisions on applicability of Article 311 (2) or Article 16 of the Constitution.
The following observations made in Pawan Kumar Dubey 's case (supra) should suffice to clear the doubts that may still be lurking in some quarters as to the ratio decidendi of Sughar Singh 's case (supra) : "We think that the principles involved in applying Article 311(2) having been sufficiently explained in Shamsher Singh 's case (supra) it should no longer be possible to urge that Sughar Singh 's case (supra) could give rise to some misapprehension of the law.
Indeed, we do not think that the principles of law declared and applied so often have really changed.
But the application of the same law to the differing cir cumstances and facts of various cases which (1) ; 474 have come up to this Court could create the impres sion sometimes that there is some conflict between different decisions of this Court.
Even where there appears to be some conflict, it would, we think, vanish when the ratio decidendi of each case is correctly understood.
It is the rule deducible from the application of law to the facts and cir cumstances of a case which constitutes its ratio decidendi and not some conclusion based upon facts which may appear to be similar.
One addition al or different fact can make a world of differ ence between conclusions in two cases even when the same principles are applied in each case to simi lar facts.
This Court 's judgment in Sughar Singh 's case (supra) shows that it was only following the law on Article 311(2) of the Constitution as laid down repeatedly earlier by this Court.
It specif ically referred to the following cases: Parshottam Lal Dhingra vs Union of India (supra); State of Punjab vs Sukh Raj Bahadur (supra); State of Orissa vs Ram Narayan Das (supra); R.C. Lucy vs State of Bihar(1) Jagdish Mitter vs Union of India (supra);A. G. Benjamin vs Union 01 India(2); Ram Gopal Chaturvedi vs State.
of Madhya Pradesh(3); Union of India vs Galendra Singh(4); Divisional Personnel Officer vs Raghavendrachar(5); Union of India vs Joswant Ram(6); Madhav vs State of Mysore(7); State of Bombay vs
Abraham(8).
In Sughar Singh 's case (supra), this Court summarised the propositions of law deducible from the cases mentioned above; and, while considering the ap plicability of some of the propositions of law to the facts of the case, it did observe that, on the face of it, the action against Sughar Singh did not appear to be punitive.
Nevertheless, on a total consideration of all the facts, including the admission in the High Court before Verma, C.J. by the Standing Counsel appearing on behalf of the State, that the reversion order could not be ex plained except as a result of the adverse entry made two years earlier, it had finally applied the ratio decidendi of the State of Bihar vs Shiva Bhikshuk Mishra (supra), where this Court had affirmed the opinion of the High Court, on facts, that the reversion was not in the usual course or for administrative reasons but it was after the finding on an enquiry about some complaint against the Plaintiff and by way of punishment to him.
On this view of the case, it was not really necessary for this Court to consider whether the reversion of Sughar Singh was contrary to the provisions of Article 16 also.
C.A. No. 590 of 1962 decided on 23 10 1963 .
(2) (3) ; (4) [1972] 2 S .C.R. 660.
(5) ; (6) A.I.R.1958 s.c. 905. (7) [19621 1 S.C.R. 886. (8) [1962] Supp. 2 SC.R. 92. 475 We do not think that Sughar Singh 's case (supra) in any way, conflicts with what has been laid down by this Court previously on Article 311(2) of the Constitution or Article 16 of the Constitution." Thus on a conspectus of the decisions of this Court referred to above, it is obvious that there is no real conflict in their ratio decidendi and it is no longer open to any one to urge with any show of force that the consti tutional position emerging from the decisions of this Court in regard to cases of the present nature is not clear.
It is also to be borne in mind that even in cases where a High Court finds any conflict between the views expressed by larger and smaller benches of this Court, it cannot disregard or skirt the views expressed by the larger bench es.
The proper course for a High Court in such a case, as observed by this Court in Union of India & Anr.
K.S. Subramanian(1) to which one of us was a party, is to try to find out and follow the opinion expressed by larger benches of this Court in preference to those expressed by smaller benches of the Court which practice, hardened as it has into a rule of law is followed by this Court itself.
Keeping in view the principles extracted above, the respondent 's suit could not be decreed in his favour.
He was a temporary hand and had no right to the post.
It is also not denied that both under the contract of service and the service rules governing the respondent, the State had a right to terminate his services by giving him one month 's notice.
The order to which exception is taken is ex facie an order of termination of service simpliciter.
It does not cast any stigma on the respondent nor does it visit him with evil consequences, nor is it founded on misconduct.
In the circumstances, the respondent could not invite the Court to go into the motive behind the order and claim the protection of Article 311 (2) of the Constitution.
We, therefore, agree with the submission made on behalf of the appellant that the High Court was in error in arriv ing at the finding that the impugned order was passed by way of punishment by probing into the departmental correspond ence that passed between the superiors of the respondent overlooking the observations made by this Court in I.N. Saksena vs State of Madhya Pradesh(2) that when there are no express words in the impugned order itself which throw a stigma on the Government servant, the Court would not delve into Secretariat flies to discover whether some kind of stigma could be inferred on such research.
We also find ourselves in agreement with the contention advanced on behalf of the appellant that the High Court failed to appreciate the true legal and constitutional position and upset the concurrent findings of fact arrived at by the Courts below that the impugned order was not by way of punishment ignoring the well settled principle of law that a second appeal cannot be.
entertained on the ground of erroneous finding of fact, however gross the error might seem to be.
(See Paras (1) ; C2) ; 476 Nath Thakur vs Smt.
Mohani Dasi & Ors.(1); Sri Sinna Ramanu la Jeer & Ors.
vs Sri Ranga Ramanuja Jeer & Anr.
(2); R. Ramachandra Ayyar vs Ramalingam(3) and Madamanchi Ramappa & Anr.
vs Muthaluru Bojappa(4).
For the foregoing reasons, the contentions of Mr. Dixit are upheld and those of Mr. Garg are repelled.
In the result, we allow the appeal, set aside the judg ment and, decree of the High Court, restore the judgments and decrees of the Courts below and dismiss the respond ent 's suit.
In the circumstances of the case, the parties are, however, left to pay and bear their own costs of this appeal.
V.P.S. Appeal allowed.

summary:
The respondent was appointed as a temporary clerk in an engineering division of the Government.
The attempt of another clerk to impersonate and appear for him in a depart mental examination was detected.
The Executive Engineer obtained explanations from both the clerks and reported the matter to the Superintending Engineer, who brought the matter to the notice of the ChiefEngineer.
The Chief Engi neer wrote to the Superintending Engineer to award suitable punishment.
The Superintending Engineer passed the order that the respondent a "temporary clerk is hereby served with one month 's notice to the effect that his services shall not be required after one month from the date of receipt of this notice.
" The respondent filed a suit challenging the order on the ground that the termination was one passed by way of punishment and therefore attracted Art 311 of the constitution;.
and since the provisions of the Article had not been complied had not been complied with the order was void.
The Trial Court and the First Appellate Court dismissed the suit.
But the High Court went,through the official correspondence preceding the passing of the impugned order, and observing that a close scrutiny of the facts on record showed that the order was passed by way of punishment on the basis of the enquiry proceeding and as a result of the recommendation by the Executive Engineer followed by the direction issued by Chief Engineer, allowed the second appeal.
Allowing the appeal to this Court, HELD :(1) It is no longer open to any one to urge that the constitutional position in regard to cases of the present nature is not clear.
An examination of the deci sions of this Court shows that there is no real conflict in their ratio decidendi.
Even if there is a conflict, the proper course for a High Court is to find out and follow the opinion expressed by larger benches of this Court in preference to those expressed by smaller benches of this Court.
This practice is followed by those Court itself and has hardened into a rule of law.
[475B C] Union of India & Anr.
K.S. Subramanian; , , followed.
State of U.P. & Ors vs Sughar Singh [1974] 2 .S.C.R. 335: ; , The State of Punjab vs
P.S. Cheema A.I.R. 1975 S.C. 1096, Satish Chandra Anand vs The Union of India ; , Shyam Lal vs State of U.P. ; , Parshotam Lal Dhingra vs Union of India ; , Gopi Kishore Prasad vs Union of India AIR. , The State of Orissa & ,Anr.
vs Ram Narayan Das ; , Madan Gopal vs State of Punjab [1963] 3 S.C.R. 716, Rajendra Chandra Banerjee vs Union of India ; , Champakal Chimanlal Shah vs The Union of.
India , Jagdish Mitter vs Union of India A.I.R. 1964 S.C. 449, State of Punjab & Anr.
vs Shri Sukh Raj Bahadur ; , Union Of India 463 & Ors.
R.S. Dhaba , State of Bihar & Ors.
vs Shiva Bhikshuk Mishra R.S. Sial vs The State of U.P. & Ors. , Shamsher Singh & Anr.
vs State of Punjab ; and The Regional Manager & Anr.
vs Pawan Kumar Dubey [1976] 3 S.C.R. 540 referred to.
(2) Before it is held that an order terminating the services of a Government servant amounts to punishment the Court must hold that either of the two tests,namely, (a) that the servant had a right to the post or (b) that he had been visited with evil consequences such as forfeiture of pay etc., is satisfied.
Therefore, an order terminating the services of a temporary servant or probationer under the Rules of employment and without anything more will not attract article 311.
Where a departmental enquiry is contem plated but an enquiry is not in fact proceeded with, article 311 will not be attracted unless it can be shown that the order, though.
unexceptionable in form, is made following a report based on misconduct.
Even though misconduct, negli gence, inefficiency or other disqualification may be the motive for the order of termination, if a right exists under the contract or the rules to terminate his services, then article 311(2) is not attracted unless the misconduct or negli gence is the very foundation of the order.
Where there are no express words in the impugned order itself ' which throw a stigma on the Government servant, the Court would not delve into secretariat files to discover whether some kind of stigma could be inferred on such research.
[469 A B; 473 C; 471 H; 475 F] Parshotam Lal Dhingra vs Union of India [1958] S.C.R. 828, R.S. Sial vs The State of U.P. & Ors.
[1974] 3 S.C.R. 754, Shamsher Singh & Ant.
vs State of Punjab ; and 1.
N. Saksena vs State of Madhya Pradesh ; followed.
(3) The respondent was a temporary hand and had no right to the post.
Under the contract of service and the service rules applicable to him the State had the right to terminate his services by giving him one month 's notice.
The order ex facie is an order of termination of service sim pliciter.
It does not cast any stigma on the respondent nor does it visit him with evil consequences, nor is it founded on misconduct.
Therefore, the respondent could not invite the Court to go into the motive behind the order and claim the protection of article 311(2) of the Constitution.
[475 D E] (4) The High Court failed to appreciate the true legal .and constitutional position and upset the concurrent findings of fact arrived at by the Courts below, ignoring the well settled principle of law that a second appeal cannot be entertained on the ground of erroneous findings of fact, however, gross the error might seem to be.
[475 G H] Paras Nath Thakur vs Smt.
Mohani Das & Ors.
[1960] 1 S.C.R. 271.
Sri Ramanuja Jeer & Ors.
vs Sri.
Ranga Ramanuja Jeer & Anr. ; , P. Ramachandra Ayyar vs Ramalingam ; and Madamanchi Ramappa & . Anr.
vs Muthaluru Bojappa ; , referred to.


judgement:
Civil Appeal No. 1250 of 1968.
(From the Judgment and Order dated 17 4 1967 of the Calcutta High Court in Appeal from Original Decree No. 255/69).
D.V. Patel, H.K. Puri, S.K. Gupta, P. Dayal and M.C. Dhingra for the Appellant.
P.K. Chatterjee, and G.S. Chatterjee, for the Respondent.
JASWANT SINGH, J.
This appeal by certificate granted under Article 133(1)(a) and (c) of the Constitution which is directed against the judgment and decree dated March 25, 1968 of the High Court of Calcutta in Appeal No. 255 of 1963 raises important questions relating to the interpretation of certain provisions of the Bihar Land Reforms Act, 1950 (Act XXX of 1950) (hereinafter referred to as 'the B.L.R. Act ') as also of the Mining Leases (Modification of Terms) Rules, 1956 providing for the modification and alteration of terms and conditions of the mining leases granted prior to the commencement of the Mines and Minerals (Regulation and Development) Act, 1948 (Act 53 of 1948) (hereinafter re ferred to as 'the 1948 Act ') and of the (Act 67 of 1957) (hereinafter referred to as 'the 1957 Act ') which replaced the 1948 Act on June 1, 1958.
The facts and circumstances leading to this appeal are: By an indenture of.
lease dated July 31, 1927 (hereinafter referred to as the 'head lease '), Raja Bishambharnath Sahi (hereinafter referred to as the 'Raja ') who was the sole proprietor of large tracts of land known as the Sonepura estate in Paragana Rohtas in the district of Shahbad in Bihar demised certain blocks of land situate in villages Jaintipur, Nimhath Deodand and Dhanwanti, District Shahbad together with quarries of lime stone (known as Chunhatta Lime Stone Quarries) lying thereunder for a period of 40 years commencing from 1st day of August, 1927, and ending on 31st day of July, 1967, with an option to continue for a further period of 25 years, in consideration of a 'salami and fine ' of Rs. 8,200/ unto Karunaranjan Dutt and Jugal chandra Dutt (hereinafter referred to as 'Dutts ').
By the said indenture, the head lessees inter alia undertook to pay to the Raja during the first 15 years of the said period of 40 years of the lease i.e., from the 1st day of August, 1927, to 31st day of July, 1942, royalty at the rate of annas /10/ (ten) 62 paise for every 100 cubic feet i.e., roughly at 15 1/2 paise per ton of solid lime stone, quarried, raised, got, used or taken out from the demised premises and for the remaining 25 years of the lease i.e. from the 1st day of August, 1942, to 31st day of July, 1967, royalty at the rate of annas /15/ (fifteen) 94 paise instead of annas /10/ (ten) for every 100 cubic feet i.e. roughly at 24 paise per ton of solid lime stone, quarried, raised, got, used or taken out from the demised premises.
The aforesaid royalty was made payable quarterly i.e. after every three months on the fixed dates specified in the indenture of lease.
The head lessees also undertook to pay yearly rent of annas /6/ (sux) per acre subject to the maximum of Rs. 100/ for so much of the surface land as was to be entered upon, used or occupied by them for the purpose of placing, stocking and beeping stones or waste materials and rubbish etc.
The lease deed further provided as follows . "That the 'LESSEES ' shall be at liberty ,red competent without obtaining any further consent of the "LESSOR" to 362 assign and transfer this lease or sublet or part with the possession of the demised premises or any part thereof to any person, firm or company whether incorporated or otherwise and no mutation fee or Nazarana or premium shall be charged by the 'LES SOR ' in case of such transfer or subletting for the first time, but in case of subsequent transfer or sub letting a fee of Rupees five hundred (500/ ) shall be payable to the 'LESSOR ' for each such occasion.
If the rents and royalties hereby reserved or any part thereof or any other moneys hereunder payable by the 'LESSEES ' to the 'LESSOR ' shall remain unpaid for three months after the same shall become due and payable the 'LESSEES ' shall pay interest thereon at the rate of twelve (12) per cent per annum calculated from the due date until payment.
If the same shall remain unpaid for three years consecutively or if there be any breach of any of the conveyants and agreements herein con tained and on the part of the 'LESSEE ' to be per formed and observed then this lease shall be liable to be forfeited under an order of a competent court besides any other relief hereunder and under the law then prevailing.
" On October 12, 1928, the head lessees i.e. Dutts execut ed a sublease of the aforesaid blocks of land and quarries of lime stone for the residue of the period of the aforesaid indenture of lease dated July, 1927 except the last day thereof for a consideration of Rs. 5,000/in favour of the appellant.
The appellant undertook to pay to Dutts the same royalty and rent as were payable by Dutts to the Raja during the period of the aforesaid head lease in respect of lime stone quarried (except for ballast or building pur poses).
In addition, the appellant undertook to pay to the head lessees during residue of the first 15 years of the said period of 40 years royalty of annas /16/ (sixteen) for every 100 cubic feet of solid lime stone quarried, raised, got or used or taken out from the demised premises and for the remaining 25 years thereafter of the said period for each such quantity, royalty .of annas /11/ (eleven).
The sub lease gave option to the appellant to make payment to the head lessor directly of royalties in terms of the aforesaid head lease whether the head lessees were to make default or not in making payment of the same.
On February 15, 1929, Dutts transferred by a deed of assignment all their rights, title and interest under and by virtue of the aforesaid indenture of head lease and the sub lease dated October 12, 1928 to the respondent.
The appellant had due notice of the said assignment and accepted the respondent as its lessor in place of Dutts.
On September 8, 1948, the Central Legislature passed the 1948 Act under Entry 36 of List I of Seventh Schedule to the Government of India Act, 1935.
Section 5 of the Act empow ered the Central Government to make rules for regulating the grant of mining leases or for prohibiting the grant of such leases in respect of any mineral or in any area.
Section 7 of the Act empowered the Central Government to make rules for the purpose of modifying or altering the terms and conditions of any existing mining lease granted prior to the commencement of the Act, so as to bring such lease into conformity with the 363 rules made under section 5.
In exercise of the powers conferred on it by section 5 of the Act, the Central Govern ment made the Mineral Concession Rules, 1949.
Both the 1948 Act and the Mineral Concession Rules, 1949, came into force on October 25, ' 1949.
The provisions of the Mineral Conces sion Rules, 1949, did not apply to leases or sub leases granted prior to October 25, 1949.
On September 25, 1950, the B.L.R. Act came into force.
This Act as apparent from its preamble was enacted for the purpose transference to the State of the interests of the proprietors and tenure holders ' in land and of mortgagees and lessees of such interests in, eluding interest in mines and mineral etc.
Sections 3 and 3A of the B.L.R. Act which dealt with vesting of estates or tenures in the State provided as follows : "3.(1) The State Government may from time to time, by notification declare that the estates or tenures of a proprietor or tenure holder, speci fied in the notification have passed to and become vested in the State . 3.A.(1) Without prejudice to the provision in the last preceding section, the State Government may, at any time, by notification, declare that the intermediary interests of all intermediaries in the whole of the State have passed to and become vested in the State.
(2) It shall be lawful for the State Govern ment, if it so thinks fit, to issue, from time to time, a notification of the nature mentioned in sub section (1) in respect of the intermediary interests situate in a part of the State specified in the notification and, on the publication of such notification, all intermediary interests situate in such part of the State shall have passed to and become vested in the State . . " On November 14, 1951, the estate of Sonepura belonging to the Raja passed to and became vested in the State of Bihar by virtue of notification No. 83 IR/ZAN dated November 6, 1951 issued by the Governor of Bihar in exercise of the power con ferred on him by sub section (1) of the above quoted section 3 of the B.L.R. Act.
On January 1, 1956, the Governor of Bihar issued notification No. EVII 102/56 ILR reading as under : "No. EVII IO2 56 ILR.
: Whereas a proclama tion announcing 'the .intention of the State Government to take over all the intermediary interest in the district of Shahbad Patna, Saran, Muzafferpur, Bhagal Sonthal Paraganas, Ranchi, Singhbhum Manbhum and excluding Manbhum Sadar Sub Division was published under notifica tion No. 4381 LR dated the 18th August, 1955, as required by sub section (1) of section 3(B) of Bihar Land Reforms Act, 1950 (Bihar Act XXX of 1950).
Now, therefore, in exercise of the powers conferred by sub section (2) of section 3A of the said Act, the Government of Bihar is pleased to "declare that all such intermediary interests in the said districts (excluding Manbhum Sadar 364 sub Division) have passed to and become vested in the State with effect from the date of this Notifi cation.
" On September 4, 1956, the Government of India made rules under section 7 of the 1948 Act for modifying or altering the terms and conditions of the existing leases, being Mining Leases (Modifica tion of Terms) Rules, 1956.
Clause (c) of rule 2 of the Rules defined "existing mining lease" as meaning a mining lease granted before October 25, 1949 and subsisting at the commencement of the 1956 Rules but not including any such lease in respect of (i) natural gas, (ii) petroleum; (iii) coal, or (iv) any minor mineral within the meaning of clause (c) of section 3 of the Act.
The 1948 Act was replaced by the 1957 Act which came into force on June 1, 1958.
Section 9 of the 1957 Act provided as follows : "9.
Royalties in respect of mining leases : (1 ) The holder of a mining lease granted before the commencement of this Act shall, notwith standing anything contained in the instrument of lease or in any law in force at such commencement, pay royalty in respect of any mineral removed by him from the leased area after such commencement, at the rate for the time being specified in the Second Schedule in respect of that mineral.
(2) The holder of a mining lease granted on or after the commencement of this Act shall pay royalty in respect of any mineral removed by him from the leased area at the rate for the time being specified in the Second Schedule in respect of that mineral.
(3) The Central Government may, by notifica tion in the official gazette, amend the Second Schedule so as to enhance or reduce the rate at which royalty shall be payable in respect of any mineral with effect from such date as may be speci fied in the notification: Provided that the Central Government shall not (a) fix the rate of royalty in respect of any mineral so as to exceed twenty per cent of the sale price of ,the mineral at the pit 's head, or (b) enhance the rate of royalty in respect of any mineral more than once during any period of four years.
" This section was amended in 1972 by Act 'No. 56 of 1972.
The amended section in so far as it is relevant for our purpose runs as follows : "9.(1 ) The holder of a mining lease granted before the commencement of this Act shall, notwith standing anything contained in the instrument of lease or in any law in force at such commencement, pay royalty in respect of any mineral removed or consumed by him or by his agent, manager, employee, contractor or sub lessee from the leased area after 365 such commencement, at the rate for the time being specified in the Second Schedule in respect of that mineral.
(2) The holder of a mining lease granted on or after the commencement of this Act shall pay royalty in respect of any mineral removed or con sumed by him or by his agent, manager employee, contractor or sub lessee from the leased area at the rate for the time being specified in the, Second Schedule in respect of that mineral.
(2A) . . (3) The Central Government may, by notifica tion in the official Gazette, amend the Second Schedule so as to enhance or reduce the rate at which royalty shall be payable in respect of any mineral with effect from such date as may be speci fied in the notification: Provided that the Central Government shall not enhance the rate of royalty in respect of any mineral more than once during any period of four years.
" Section 29 of the Act provided for the effec tive continuance of the rules made or purporting to have been made under the 1948 Act in so far as they.
related to matters provided for in the former Act and were not inconsistent therewith.
By the Bihar Amendment Ordinance No. 3 of 1964 which was subsequently replaced by the Bihar Land Reforms (Amendment) Act (Bihar Act 4 of 1965), the B.L.R. Act was amended by introduction of section 10 A which runs as follows : "10 A. Vesting of interest of lessee of mines or minerals which is Subject to a sub lease. (1) The interest of every lessee of mines or minerals which is subject to a sub lease shall, with effect from such date as may be notified in this behalf by the State Government in the Official Gazette, vest in the State and thereafter the sub lessee whose lease is not subject to any further sub lease shall hold his lease directly under the State Government and the provisions of subsections (2) and (4) of section 10 shall, 'mutatis mutandis ' apply to his lease.
(2) No .sub lessee of mines or minerals holding under a lessee whose interest vests in the State Government under sub section (1 ) shah be entitled to claim any damages from his lessor on the ground that the terms of the lease in respect of the mines or minerals have become incapable of fulfilment by the operation of this section.
" Purporting to act under the Mining Leases (Modification of Terns) Rules, 1956, the Controller of Mining Leases, an officer appointed by the Central Government for the purpose of implementing the rules, by his order dated August 8, 1959 enhanced the royalties payable under the aforesaid lease dated July 31, 1927 to 37 Naya Paise per ton.
366 In exercise of its option under the sub lease dated October 12,.
1928, the appellant paid rent and royalty payable by the head lessee in respect of the aforesaid Chunhatta quarries under the aforesaid indenture of lease dated July 31, 1927, directly to the.
Raja upto the date immediately preceding the date of the aforesaid vesting of the interest of the Raja in the State of Bihar under the B.L.R. Act.
After the date of the vesting of the interest of the Raja in the State of Bihar the appellant started paying directly to the State the said royalty at the rate of 24 paise per ton.
The appellant also continued paying additional royalty at the rate of 17 paise per ton to the respondent in terms of the sub lease dated October 12, 1928 but stopped doing so from July 1, 1958.
The respondent thereupon brought a suit on JUly 10, 1961 being suit No. 1104 of 1961 on the original side of the High Court at Calcutta claiming a decree for (1) Rs. 25,181.27 as arrears of royalty from July 1, 1958, to August 7, 1959 the date immediately preceding the date on which the Controller enhanced the royalty payable to the State to 37 paise; (2) Rs. 32,223.64 as arrears of royalty at the rate of annas /11/ (eleven) from August 8, 1959 to March 31, 1961; (3) Rs. 1,444.00 on account of deficit payment for the overdue period in respect of royalty for the quarters ending June 30, 1957, September 30, 1957, December 31, 1957 and June 30, 1958.
It also claimed interest on the aforesaid amounts at the rate of 12 per cent per annum.
The respondent based his claim on the ground that notwithstanding the issues of the aforesaid notification under section 3 of the B.L.R. Act, its interest as a lessee under the lease which continued to subsist did not vest in the State of Bihar and it became and still continued to be a lessee under that State fro.m the date of the aforesaid notification under section 3 of the B.L.R. Act.
The appellant contested the suit averring inter alia that while the position of Dutts in respect of the. mines under the aforesaid blocks of land was that of the tenure holders under the Raja, its own position was that of the lessee in possession and that from November 14, 1951the date of vesting of the Sonepura estate in the State of Bihar the proprietary right of the Raja in the aforesaid mine ceased to exist and the respondent became an intermediary in re spect thereof directly Under the State of Bihar from the said date and the appellant continued to be a lessee in possession under the respondent.
The appellant denied that the interest of the respondent in the mine was that of the lessee or that from the date of the aforesaid notification under section 3 of ' the B.L.R. Act, the respondent became a lessee of the said mine directly under the State and averred that it continued to be the lessee in possession of the said mine under the respondent as before.
The appellant further averred that in any event the respondent 's right to receive additional royalty from the former in terms of the aforesaid sub lease dated October 12, 1928 ceased to exist from January 1, 1956, when the interest of the latter as tenure holder in the Chunhatta Lime Stone Quarries came to vest in the State.
The appellant Further averred that due to ignorance of the publication of the notification dated January 1, 1956 and bonafide mistake arising therefrom,.
it continued paying additional royalty to the respondent in terms of the sub lease dated October 12, 1928 for the period beginning from.
January 1, 1956, to the end of June, 1958, which the latter had no 367 right to receive and was refundable to it with interest thereon at the rate of six per cent.
The appellant alterna tively pleaded that assuming without admitting that the interest of the respondent in the Chunhatta quarries did not vest in the State of Bihar either by notification dated November 14, 1951, or under notification dated January 1, 1956, and that the respondent continued to be a lessee under the lease dated July 31, 1927, even then the appellant was, under the sub lease dated October 12, 1928, liable to pay royalty only at the rate of annas /15/ (fifteen) per 100 cubic feet as provided in the lease dated July 31, 1927, and an additional royalty of annas '/11/(eleven) per 100 cubic feet aggregating Rs. 1/10/ per 100 cubic feet equal to 24 Naya Paise plus 17 Naya Paise per ton (calculating 100 cubic feet as equivalent to 4 tons) for the period commencing from August 1, 1942 to May 31, 1958 that the respondent being a holder of the mining lease within the meaning of section 9 of the 1957 Act was liable to pay royalty at the rate of 37 Naya Paise per ton in respect of the minerals removed from the said quarries from June 1, 1958, and since payment to the tune of Rs. 61,684.40 on that account upto March 31, 1961 had been made by the appellant as an agent of the respondent to safeguard its position and enjoyment of the leasehold property, the former was entitled to be reim bursed to that extent.
In conclusion, the appellant aimed to set off the aforesaid sum of Rs. 61,684.40 and subse quent payments of royalty against the royalty that might be payable to the respondent under the sub lease dated October 12, 1928, in respect of the minerals removed from the leased quarries from June 1, 1958 upto March 31, 1961 and thereafter.
The appellant, however, admitted that it had paid the additional royalty to the respondent as stipu lated in the sublease dated October 12, 1928, upto June 30, 1958 only.
By his judgment dated July 23, 1963, Sankar Prasad Mitra, J. of the High Court of Calcutta to whom the suit had been assigned passed a decree in favour of the respondent to the extent of Rs. 47,944.10 as the princi pal sum, and Rs. 8,887.90 on account of interest, holding inter alfa that the respondent was not an intermediary or tenure holder in respect of the estate in suit under B.L.R. Act ' and its interest did not vest in ,the State of Bihar as a result of the aforesaid notification dated November 6, :1951 or the notification dated January 1, 1956; that the holder .of a mining.
lease as envisaged by the B.L.R. Act could be a lessee or a sub lessee; that it was the lessee or the sub lessee who removed the minerals from the mine that had to pay royalty at the rate specified in the Second Schedule to the 1957 Act and as it was the appellant and not the respondent that removed the minerals from the quarries during the relevant period, the provisions of section 9 of the 1957 Act could not be invoked for realization of royal ties from the latter; and that if the appellant had paid any sum in excess of the sum stipulated in the indenture of lease dated July 31, 1927, it did so entirely at its own choice and risk.
The learned Single Judge further held that section 69 of the Contract Act had no application to the facts of the present case.
The learned Judge, however, disallowed the claim of the respondent so far as the item of Rs. 1144/ was concerned.
Aggrieved 368 by this judgment and decree, the appellant preferred an ,appeal before a Division Bench of the High Court which proved abortive.
While affirming the findings of the Single Judge, the Division Bench held that the interest of the respondent did not vest in the State Government at the material time and the appellant continued to be sublessee under the respondent bound by the terms of the sub lease and that the liability to pay royalty to the State at 37 paise per ton from the date of coming into force of the 1957 Act fell on the appellant.
Dissatisfied with the judgment and decree of the Division Bench of the High Court, the appel lant has, as already stated, come up in appeal to this Court.
Appearing in support of the appeal, Mr. Patel has ad vanced two contentions.
He has in the first instance invit ed our attention to the definitions of 'intermediary ', 'intermediary interest ' 'lease ', 'tenure ' and 'tenure holder ' contained in clauses (jj), (jjj), (1), (q) and (r) respectively of section 2, as also sections 3, 3A, 4 and 9 of the B.L.R. Act and stressed that as the respondent was merely a 'tenure holder ' and all his rights, title and interest as such extinguished alongwith the interest of the erstwhile proprietor of the suit land i.e. the Raja with the coming into force of Notification No. 83 IR/ZAN (supra) on November 14, 1951, and it was the appellant who being a sub lessee stepped in as a direct lessee of the mine in question under the State, the respondent was not entitled to claim with effect from November 14, 1951, the additional royalty stipulated in the sub lease dated October 12, 1928.
He has further urged that assuming that the respondent enjoyed the status of a head lessee even then, its right, title and interest as such having become extinct and vested absolutely in the State without the encumbrance of the lease at least from January 1, 1956 the date of Notification No. EVII 102/56 ILR (supra), it could not claim the said addi tional royalty after December 31, 1955.
These contentions which appear to be based upon a misconception of the true legal position cannot be accepted.
The respondent could not be said to be a tenure holder as contemplated by the afore said section 2(r) of the B.L.R. Act as he had neither ac quired from the Raja by virtue of the lease dated July 31, 1927 a right to hold the land mentioned therein for the purpose of collecting rent nor a right to hold the land for bringing it under cultivation by establishing .tenants on it.
The right of the respondent as a head lessee of the mines and minerals also did not cease and the appellant did not acquire the status of the lessee as contended by Mr. Patel.
The consequences of vesting of an estate or tenure in the State are set out in section 4(a) of the B.L.R. Act.
According to this provision, on the publication of the notification under sub section (1) of section 3 or sub section (1) or (2) of section 3A of the B.L.R. Act, the estate or tenure mentioned in the notification including the interests of the proprietor or the tenure holder com prised in such estate or tenure and his interest in all sub soil including any right in mines and minerals inclusive of such right of a lessee of mines and minerals comprised in such estate or tenure vests absolutely in the State free from all encumbrances and such proprietor or tenure holder has to cease to have any interests in such estate or tenure, other than 369 the interests expressly saved by or under the provisions ,of the Act.
The last words of section 4(a) of the B.L.R. Act viz. "other than the interests expressly saved by or under the provisions of the Act" are pregnant with the meaning.
They unequivocally show that those interests which are expressly saved by or under the provisions of the Act are not affected or impaired by the aforesaid notifications.
Now according to section 10 of the B.L.R. Act which itself is in the nature of a non obstante provision overriding other provisions of the Act, every lease of mines and miner als comprised in the notified estate or tenure or any part thereof 'which may be subsisting immediately before the date of vesting has to be treated with effect from the date of 'vesting ' as a lease from the State Government to the holder of the said subsisting lease for the residue of the term of that lease and such holder acquires the right to retain .possession of the leasehold property for that peri od.
In other words, in place of every contractual lease which might have been subsisting immediately before the date of vesting of the estate or tenure, a statutory lease on practically identical terms and conditions comes into being.
Thus the combined reading of section 4(a) and section 10 of the B.L.R. Act leaves no room for doubt that the interests of the head lessee were left unaffected by the aforesaid notifications to the extent indicated above.
This view receives support from a catena of decisions of this Court where this position has been fully recognised and affirmed.
(See Bihar Mines Ltd. vs Union of India(1) Chhatu Ram Horil Ram Private Ltd. vs State of Bihar & Anr.(2); M/s. Hindu stan Steel Limited Rourkela vs Smt.
Kalyani Banerjee & Ors.(a) and State Of Bihar & Anr.
vs Khas Karanpura Collieries Ltd.(4).
The insertion of section 10 A in the B.L.R. Act by the Bihar Amendment Ordinance No. 3 of 1964 which was subse quently replaced by the Bihar Land Reforms (Amendment) Act (Bihar Act 4 of 1965) also indicates that the law as it obtained prior to the aforesaid amendment was not intended to have the effect of divesting a lessee of his interests in a lease of mines or minerals comprised in the estate or tenure or part thereof which subsisted immediately before the vesting of a notified estate or tenure.
We must here deal with what has been tried to be im pressed upon us by Mr. Patel in regard to this aspect of the matter by reading out to us a passage from Craies on Statute Law. 'The counsel has strongly urged that since it is not strictly permissible to interpret a statute by reference to what has been said in subsequent statutes, resort cannot be had to the provisions of section 10 A which was intro duced in the B.L.R. Act in 1964 while interpreting section 10 of before the introduction of the said section.
We also find ourselves unable to accept this contention and to disregard the well settled canon (1) ; (2) ; (3) ; .
(4) ; 370 that sometimes light may be thrown upon the meaning 'of an Act by taking into consideration 'parliamentary expositions ' as revealed by the later Act which amends the earlier one to clear up any doubt or ambiguity.
This principle has to be followed where, as in the instant case, a particular construction of the earlier Act will render the later incor porated Act ineffectual, or otiose or inept.
(See Krikness vs John Hudson & Co.(1).
This view also receives support from the decision of this Court in Yogendra Nath Naskar vs
C.I.T. Calcutta(") where approving the authoritative pronouncement in Cape Brandy Syndicate vs I.R.C.(3) that the subsequent legislation may be looked at in order to see the proper construction to be put upon an earlier Act where that earlier Act is ambiguous, it was held that the language employed in Income Tax Act, 1961 may be relied on as a Parliamentary exposition of the earlier Act (I.T. Act, 1922) even on the assumption that the language employed in Sec tion 3 of the earlier Act is ambiguous.
It follows from the above discussion that the estate comprised in the head lease in the instant case which was assigned to the respondent notionally stood leased by the State from the date of vesting to the holder of the subsist ing lease for the remainder of the term of the lease and the respondent became entitled to retain possession of the leasehold property.
The first contention of Mr. Patel is, therefore, repelled.
Mr. Patel has next contended that as the royalty payable to the lessor was enhanced under the provisions of the 1957 Act read with the Mining Leases (Modification of Terms) Rules, 1956, which continued in force by virtue of section 29 of the 1957 Act and the enhanced royalty was payable by the respondent who was the holder of the mining lease as envisaged by section 9 of the 1957 Act, the appellant was entitled to be reimbursed to the extent of Rs. 61,684.40 which was paid by him as an agent of the respondent.
This contention has to be examined with reference to two periods viz. (i) from July 1, 1958 to August 7, 1959, and (ii) August 8, 1959 to March 31, 1961.
It is admitted by the appellant that during the period intervening between the date when the 1957 Act came into force and August 8, 1959 when the Controller passed the aforesaid order enhancing .the royalty.
payable to the State, ,it continued to pay the said royalty at the old rate of 24 paise per ton and was never required to pay the same at the enhanced rate of 37 paise.
No question of reimbursement for this period can, therefore, arise.
The position, however, with regard to the second period from August 8, 1959, to March 31, 1961,.is not free from difficulty and has to be examined with reference to the provisions of section 9 of the 1957 Act and of the Mining Leases (Modification of Terms) Rules, 1956 as also of the provisions of section 9 of the B.L.R. Act.
Whereas according to counsel for the appellant, it is the respondent which being the holder of lease as contemplated by section 9 of the 1957 Act that has to bear the burden of royalty payable to the State in accordance with the requirements of Second Schedule to the 1957 (1) [19551 A.C. 696 (H.L.) (2) ; (3) 371 Act, according to counsel for the respondent, as the expres sion "mining lease" used in section 9 of the 1957 Act has been defined in section 3(c) of the Act as including a 'sub lease ' and the mineral has actually been removed by the appellant, the liability for payment of enhanced royalty squarely falls on the appellant.
There is yet another aspect of the matter which may reasonably be urged in accordance with the ratio of the decisions of this Court in Bihar Mines Ltd. vs Union of India (supra) and M/s Hindustan Steel Limited Rourkela vs Smt.
Kalyani Banerjee & Ors.
(supra) where it was unequivocally laid down that a statuto ry lease held by a head lessee from the State Government being a new lease granted after October 25, 1949, and not being an existing lease, it could not be modified and when the head lease not being an existing mining lease could not be modified, the sub lease could also not be modified as it too would be deemed to be a new lease granted by the new lessee from the State Government.
In view, however, of the fact that neither the Union of India nor the Controller of Mining Leases is a party to the case before us and the aforesaid order dated August 8, 1958 appears to have been passed by tile Controller of Mining Leases with the agree ment of the parties here.to, we do not consider ourselves called upon to resolve the conflicting contentions advanced before us by counsel for the parties.
For the purpose of this appeal, it would suffice to observe that in view of Exhibit 'L ' (reproduced at pages 280 to 282 of the Paper Book), the burden of payment of the royalty for the second period also is to be borne by the appellant and the question of his being re imbursed by the respondent cannot be counte nanced.
The second contention raised by Mr. Patel also, therefore, fails.
In the result the appeal fails and is dismissed.
In the peculiar circumstances of the case, the parties are left to pay and bear their own costs of the appeal.
P.B.R. Appeal dismissed.

dataset_name: IN-Abs

summary:
The proprietor of large tracts of laud leased blocks of land to.
the lessees at a stipulated rate of royalty and rent.
The lessees sub leased the land to the appellant who undertook to pay the lessees the same royalty and rent.
payable by them to the proprietor.
They also agreed to pay an additional royalty to the head lessee.
The sub lease gave an option to the appellant to make payment of royalty directly to the head lessor in terms of the head lease.
The lessees transferred their rights, title and interest in the head lease and sub lease to the respondent.
By virtue of a notification under section 3 of the Bihar land Reforms Act, 1950 the estate belonging to the head lessor passed to and became vested in the State.
Another notifica tion issued under section 3A of the Act declared that all inter mediary interests in certain districts had passed to and became vested in the State.
In exercise of its option under the sub lease the appel lant paid rent a.nd royalty directly to the head lessor and the additional royalty to the head lessee (respondent) but stopped payment of additional royalty to the respondent in terms of the sub lease, from July 1, 19.58.
On August 8, 1959 Controller of Mines and Leases for India passed an order enhancing the royalty payable to the State and in c1.(9) of the order it was stated that "royalty will be.
payable to State Government by the appellants in accordance with section 9 of the Mines and Minerals (Regulation & Develop ment) Act, 1957 and dead rent according to the order passed in these proceedings.
" The respondent filed a suit claiming arrears of additional royalty.
The High.
Court decreed the suit.
In appeal to this Court, it was contended that (i) since the respondent was merely a tenure holder and all its rights, title and interest as such extinguished alongwith the interest of the erstwhile proprietor with the coming into force of the 1950 Act it was the appellant as a sub lessee that became a direct lessee of the State and, there fore, the respondent was not entitled to claim additional royalty.
(ii) since the enhanced royalty was payable by the respondent which was paid by the appellant, the appellant was entitled to reimbursement to the extent it paid the amount as agent of the respondent.
Dismissing the appeal, HELD :(1)(a) A combined reading of sections 4(a) and 10 of the 1950 Act leaves no room for doubt that the interests of the head lessee were left unaffected by the notifications.
[369 D] (b) The respondent could not be said to be a tenure holder as contemplated by the 1950 Act as it had neither acquired from the head lessor by virtue of the lease a right to hold the land for the purpose of collecting rent nor a right to hold the land for bringing it under cultivation by estab lishing tenants on it.
The right of the respondent as a head lessee of the mines and minerals also did hot cease and the appellant did not acquire the status lessee.
According to section 4(a) of 1950 Act on the publication of the notifications the interests of the proprietor or tenure holder comprised in such estate or tenure inclu sive of such right of a lessee of mines and minerals com prised 7 1104 SC I/76 360 in such estate or tenure vest absolutely in the State free from encumbrances and such proprietor or tenure holder has to cease to have any interest in such estate or tenure other the interest expressly saved by or under the provisions of the Act.
The last words of section 4(a) of the Act, namely, "other than the interest expressly saved by or under the provisions of the Act" unequivocally show that those inter ests which are expressly saved are= not ' affected or im paired by the notifications.
According to 9.10 which itself is in the nature of a non obstante provision overriding other provisions of the Act, every lease of mines and miner als comprised in the notified estate or tenure or any part thereof which may be subsisting immediately before the date of vesting has to be treated, with effect from the date of vesting, as a lease from the State Government to the holder of the said subsisting lease for the residue of the term of that lease and such holder acquires the right to retain possession oF the leasehold property for that period.
In other words, in place of every contractual lease which might have been subsisting immediately before the date of vesting of the estate or tenure a statutory lease on practi cally identical terms and conditions came into being.
[368 F H, 369 A C] Bihar Mines Ltd. vs Union of India ; , Chhatu Ram Horil Ram Private Ltd. vs State of Bihar & Anr. ; ; , M/s. Hindustan Steel Ltd., Rourkela vs Smt.
Kalyani Banerjee & ; and State of Bihar& Anr.
vs Khas Karsmpura Collieries Ltd. etc.
[1977] I SCR. 157 followed.
(c) The introduction of s.10A in the 1950 Act indicates that the law as it obtained prior to the amendment was not intended to have the effect of divesting a lessee of his interests in a lease of mines or minerals which subsisted immediately before the vesting of a notified estate or tenure.
[369 F] (2) In view of the order passed by the Controller that the appellant agreed to say the enhanced royalty the burden of payment is to be borne by the appellant and the question of its being reimbursed by the respondent does not arise.
[371 D] (3) The contention that it is not permissible to inter pret a statute by reference to what has been said in subse quent statutes with reference to the situation obtaining before the introduction of the amendment is not well found ed.
Sometimes light may be thrown upon the meaning of an Act by taking into consideration 'Parliamentary expositions ' as revealed by the later Act which amends the earlier one to clear up any doubt or ambiguity.
This principle has to be followed where, a particular construction of the earlier Act will render the later incorporated Act ineffectual or otiose or inept.
[370 A] Krikness vs John Hudson & Co., , Yogendra Nath Naskar vs
C.I.T. Calcutta, , Cape Brandy Syndicate vs
I.R.C. referred to.
In the instant case resort can be had to the provisions of section 10A introduced in 964 while interpreting section 10 of the 1950 Act with reference to the situation obtaining at the relevant time before the introduction of section 10A.
The estate comprised in the head lease which was assigned to the re spondent notionally stood leased by the State from the date of vesting to the holder of the subsisting lease and the respondent became entitled to retain possession of the leasehold property.
[370D]


judgement:
Appeal No. 2539 of 1972.
(From the Judgment and Order dated 10 3 1972 of the Mysore High Court in Misc.
First Appeal No. 234/70) H.S. Parihar for 1.
N. Shroff, for the Appellant.
K.R. Nagaraja and P.N. Puri for the Respondent.
The Judgment of the Court was delivered by BEG, J.
The judgment of a Division Bench of the Mysore High Court under appeal before us after certification of the case as fit for an appeal to us, follows the decision of a Full Bench of that Court in Venkatamma vs Special Land Acquisition officer.
(1) The FuII Bench had held that the date for the determination of compensation under the provi sions of section 23(1) of the Land Acquisition Act, which was to.
be applied to acquisitions under the City of Mysore Improvement Act 3 of 1903 (hereinafter referred to as 'the Mysore Act '), was the date of notification under section 18 of the Act corresponding to section 6 of the Acquisition Act.
Recently, we have had to deal with a case in which the provisions of the City of Bangalore Improvement Act, 1945, corresponding substantially with those of the Act now before us, were interpreted by us.
The provisions of Sections 14, 16 and 18 of the Mysore Act of 1903, as well as the Banga lore Act of 1945 are identical.
And, the provisions of section 23 of the Mysore Act are identical with those Sec tion 27 of the Bangalore Act.
Therefore, a Division Bench of the Karnataka High Court considered itself bound by the Full Bench decision of the Mysore High Court (subsequentiy the Karnataka High Court) on the provisions of the Mysore Act of 1903 even in interpreting the Bangalore Act of 1945.
But, this Court held, in the Land Acquisition Officer, City Improvement Trust Board vs
H. Narayanaiah etc.
,(2) that the Division Bench decision of the Karnataka High Court holding that the market value, for the purposes of compensa tion, must be determined with reference to the date of notification under section 18 of the Bangalore Act, was erroneous.
It, therefore, allowed the appeals from the judgment of the Division Bench of the Karnataka High Court which had purported to follow the Full Bench decision of the Mysore Act of 1903.
The main argument in the appeal before us is that this Court had observed in Narayanaiah 's case (supra) that the Full Bench decision related to an interpretation of provi sions of an Act as it stood in (1) A.I.R. (2) ; 551 1903, when the date of market value, to be determined for purposes of compensation, was the date of notification under section 6 of the Acquisition Act.
That date was subse quently changed by the Mysore Act 1 of 1927 to that of publication and notification under Section 4(1) of the Acquisition Act.
It is true that this Court did observe that this difference was vital.
In doing so, it had ac cepted the.
argument put forward on behalf of the Land Acquisition Officer.
But, it had not decided what was the real meaning of provisions of Section 23 of the Mysore Act which correspond with section 27 of the Bangalore Act.
Section 23 of the Mysore Act now before us reads as follows: "23.
The acquisition otherwise than by agreement of land within or without the City under this Act shall be regulated by the provisions, so far as they are applicable, of the Land Acquisition Act, 1894, and by the following further provisions, namely : (1 ) Upon the passing of a resolution by the Board that an improvement scheme under section 14 is necessary in respect of any locality, it shall be lawful for any person either generally or spe cially authorised by the Board in this behalf and for his servants and workmen, to do all such acts on or in respect of land in that locality as it would be lawful for an officer duly authorised by Government to act under section 4(2) of the Land Acquisition Act, and for his servants and workmen, to do thereunder, and the provision contained in section 5 of the said Act shall likewise be ap plicable in respect of damage caused by any of the acts first mentioned.
(2) The publication of a declaration under section 18 shall be deemed to be the publication of a declaration under section 6 of the Land Acquisi tion Act.
(3) For the purposes of section 50(2) of the Land Acquisition Act, the Board shall be deemed to be local authority concerned.
(4) After the land vests in the Government under section 16 of the Land Acquisition Act, the Deputy Commissioner shall, upon payment of the cost of the acquisition, and upon the Board agreeing to pay any further costs which may be incurred on account of the acquisition, transfer the land to the Board, and the land shall thereupon vest in the Board".
The reasoning of the Full Bench of the.
Mysore High Court, which did not appeal to this Court in Narayanaiah 's case (supra), was that, since a declaration under section 18 of the Act was equated with section 6 of the Acquisition Act, proceedings under section 4(1) of the Acquisition Act could only be equated with the stage of a resolution 552 under section 14(1) of the Act which was anterior to the declaration under section 18 of the Mysore Act.
section 16 of the Act is also anterior to Section 18.
This Court found that, although the procedure laid down in section 16 of the Bangalore Act, which corresponds exactly with section 16 of the Mysore Act now before us, is more elaborate than the procedure under section 4(1) of the Acquisition Act, yet, the purpose of section 16 of the Bangalore Act was the same as that of section 4 (1) of the Acquisition Act, we think that this reasoning applies equally to the provisions of the Mysore Act.
It is true that it can be more plausibly argued, with regard to the provisions of Mysore Act of 1903, that the market value for acquisition under this Act should be deter mined with reference to the Acquisition Act as it stood in 1903.
After carefully considering this point of view, we think that such a departure from the generally accepted procedure which regulates acquisition and compensation for it under similar Acts in the State of Mysore as well as under Land Acquisition Act today has to be justified by something more explicit, express and substantial than the mere date of enactment of the Mysore Act.
If Section 23(1) of the Acquisition Act lays down, as we think it does, the only procedure for award of compensation, it has to be followed as it exist at the time of acquisition proceedings.
No one has a vested right in a particular procedure.
It is a fair interpretation of section 23 of the Mysore Act of 1903 to hold that it means that, whatever may be the proce dure there, with regard to matters regulating compensation under the Acquisition Act,.
at the time of acquisition proceedings, will apply to acquisition under the Mysore Act.
If the procedure that the market value should be deter mined with reference to section 6 of the Acquisition Act had been replaced, by an amendment of 1927.
by the provision that the relevant date will be the date of notification under section 4(1) of the Acquisition Act, we will really have to determine what is the equivalent in the Mysore Act of proceedings under section 4(1) of the Acquisition Act.
The provision relating to determination of compensation with reference to Section 6 having disappeared was no longer available to be applied at all on the date of the acquisi tion with which we are now concerned.
Hence.
to argue that the equivalent of section 6 notification trader the Acquisi tion Act should govern even proceedings commenced after the amendment would be to apply what had ceased to exist long before the proceeding commenced.
The amendment of section 23(1) of the Acquisition Act meant a legally valid substitu tion of the notification under section 4(1) for the one under section 6 of the Acquisition Act.
This implied an effective repeal and replacement.
In such a situa tion, according to section 6 of the Mysore General Clauses Act, only proceedings commenced before the repeal would be governed by the unamended procedure.
We think that the language of section 23 of the Mysore Act applies the provisions of the Acquisition Act to acquisitions under the Mysore Act, except to the extent of express deviation by the Mysore Act from the general procedure in the Acquisition Act as amended from time to time.
The procedure contained in the Acquisition Act, for the time being, did 553 need to be expressly applied once again after each amendment of the Acquisition Act, as the Mysore High Court seems to have opined.
It was enough to lay, down, as section 23 of the Mysore Act does, that the general procedure found in the Acquisition Act will apply except to the extent it was inapplicable.
This means that amendments of the procedure in the Acquisition Act will apply if it is capable of appli cation.
In the case before us, the preliminary notification under section 16 of the Mysore Act of 1903 was published on 27th May, 1965.
This we equate with notification under section 4(1) of the Acquisition Act for reasons we have already given in Narayanaiah 's case (supra).
At that time, there was no date other than the date of the notification under section 4(1) of the Acquisition Act prescribed for ascertainment of the market value, as a matter of correct procedure for determining compensation.
The procedure under the unamended Act may have had relevance for acquisition proceedings begun before the amendment of the Acquisition Act in 1927 when it really existed.
But, we think that it is a fair interpretation of the provisions of Section 23 of the Mysore Act to hold that compensation for acquisitions will be general provisions of the Acquisition Act as they exist on the date of a particular acquisition proceeding except to the extent to which a different procedure is expressly laid down in the Mysore Act.
On the view we take, the market value of the property acquired had to be deter mined with reference to the date of notification under Section 16 of the Mysore Act.
Consequently, we set aside the judgment and order of the Mysore High Court.
We remand the case to the High Court for determination of the market value and disposal of the case in accordance with the law as declared by us.
The parties will bear their own costs throughout.
V.P.S. Appeal allowed.

summary:
Section 23(1) of the Land Acquisition Act originally provided that the date for Section 23 (1) of the market value for purpose of compensation is the date of the notification under section 6.
In 1927, section 23(1) was amended making the date of section 4(1) notification as the relevant date.
With respect to certain acquisitions under the City of Mysore Improvement Act, 1903.
(Mysore Act) the notifica tion under section 16 of the Act was published in May 1965 and the notification under section 18, which corresponds to section 6 of the Acquisition Act, was published some, time later.
On the question of the date for the determination of market value for purposes of compensation under the provisions of section 23(1), Acquisition Act, the High Court followed the Full Bench decision of that court in Venkatamma vs Special Land Acquisition Officer (AIR and held that the date of section 18 notification is the relevant date, on the ground that section 23(1), Acquisition Act, as it stood in 1903 should be applied, since its amendment in 1927, has not been made specially applicable to acquisitions after that date.
Allowing the appeal to this Court and remanding the case to the High Court for determination of the market value as on the date of section 16 notification.
HELD: (1) Section 23, Mysore Act, applied the provisions of the Acquisition Act to acquisitions under the Mysore Act, except to the extent of any express deviation by the Mysore Act from the general procedure in the Acquisition Act.
It is a fair interpretation of section 23, Mysore Act, to hold that it means that, whatever may be procedure with regard to matters regulating compensation under the Acquisition Act, at the time of acquisition proceedings, will apply to acqui sitions under the Mysore Act.
The procedure, contained in the Acquisation Act for the time being need not be expressly applied once again after each amendment of the Acquisition Act, and such procedure in the Acquisition Act would apply if it is capable of application, since no one has a vested right in a particular procedure.
[552 A F] Therefore: section 23(1) of the Acquisition Act, which lays down the procedure for awarding compensation, has to be followed as it exists at the time of requisition proceed ings.
[552H 553A] (2) the 927 amendment of section 23(1), Acquisition Act, meant a legally valid substitution of the notification under section 4(1) for the one under section 6 of the Acquisition Act, that is, an effective repeal and replacement.
In such a situation, according to section 6, Mysore General Clauses Act, only proceedings commenced before the repeat would be governed by the unamended procedure.
[552 F G] (3) The date of notification under section 4(1) of the Acquisition Act would thus be the relevant date, for determining market value.
Although the procedure laid down in section 16, Mysore Act, is more elaborate than the proce dure under section 4(1), Acquisition Act, the purpose of section 16, Mysore Act is the same as that of section 4(1) Acquisition Act.
Therefore, the date of s 16 notification would be the rele vant date.
[553 B F] 550 Land Acquisition Officer, City Improvement Trust Board vs
H. Narayanaiah etc., etc.
; , followed.
Venkatamma vs Special Land Acquisition Officer (AIR overruled.