judgement:
Appeal No. 327 of 1958.
Appeal from the judgment and decree dated March 6, 1956, of the Allahabad High Court in Civil Misc.
Writ Petition No. 967 of 1953.
WITH CIVIL APPEAL Nos. 363 to 369 of 1958.
Appeals from the judgments and decrees dated February 1, 1957, of the Allahabad High Court in Civil Misc.
Writ Petitions Nos.
51 (Lucknow Bench), 523, 524, 607, 632, 633 and 634 of 1955.
G. section Pathak and S.P. Varma, for the appellant (In C. A. No. 327 of 1958).
424 C. B. Agarwala, G. C. Mathur and C. P. Lal, for respondents Nos.
3 to 4 (In C. A. No. 327 of 1958).
H. N. Sanyal, Additional Solicitor General for, India, H. section Brar, section N. Andley, J. B. Dadachanji, Rameshwar Nath and P. L. Vohra, for the appellants (In C. As.
363 to 369 of 1958).
C. B. Agarwala and.
C. P. Lal, for respondent No. 1 (In C. AB.
363 to 369 of 1958).
Bhawani Lal and Dharam Bhusan, for respondent No. 4 (In C. A. No. 369 of 1958).
J. P. Goyal, for respondent No. 4 (In C. As.
Nos. 366 and 368 of 1958).
section C. Das in person, for respondent No. 4 (In C. A. No. 367 of 1958).
March 17.
The Judgment of the Court was delivered by WANCHOO, J.
This group of appeals raises a question about the constitutionality of section 3 of the United Provinces , (U. P. XXVIII of 1947), (hereinafter referred to as the Act) and the validity of two general orders passed thereunder an March 15, 1951.
The appellants are certain industrial concerns.
There were disputes between them and their workmen which were referred for adjudication to industrial tribunals alleged to have, been set up under the general orders of March 15, 1951.
Certain awards were passed which were taken in appeal by the present appellants to the Labour Appellate Tribunal and they failed there also.
They then filed petitions under article 226 of the Constitution in the Allahabad High Court challenging the constitutionality of section 3 of the Act and the validity of the two general orders passed on March 15, 1951, by which industrial tribunals were set up.
The High Court held that section 3 of the Act was constitutional.
It however held that the two general orders dated March 15, 1951, were invalid; but it went on to hold that orders of reference passed in these cases were special orders as envisaged under section 3 of the Act and were therefore not invalid; in consequence it dismissed 425 the petitions.
The appellants then applied for and obtained certificates for leave to appeal, and that is how the matter has come up before us.
It is unnecessary to set out the facts further in respect of these appeals, as the only points argued before us are about the constitutionality of section 3 and the validity of the two general orders of 1951 and also of the references made in these cases.
It is not disputed that if the appellants fail on these points their appeals in this Court must fail.
We shall therefore first take up the question, of the constitutionality of section 3 of the Act.
The relevant provision of section 3 in 1,951 with which we are concerned was in these terms: "If, in the opinion of the State Government it is necessary or expedient so to do for securing the public safety or convenience, or the maintenance of public order or supplies and services essential to the life of the community, or for maintaining employment, it may, by general or special order, make provision (c) for appointing industrial courts; (d) for referring any industrial dispute for conciliation or adjudication in the manner provided in the order; (g) for any incidental or supplementary matters which appear to the State Government necessary or expedient for the purpose; of the order: The main contention of the appellants is that section 3 is unconstitutional as it delegates essential legislative function to the Government so far 'as cls.
(c), (d) and (g) are concerned.
Reliance in this connection is placed on the following observations of Kania C. J. in In re The (1), where he.
was considering the meaning of the word "delegation": "When a legislative body passes an Act it has exercised its legislative function.
The essentials of such function are the determination of the legislative policy and its formulation as a rule of conduct.
(1) ; ,767 54 426 These essentials are the characteristics of a legislature by itself. .
Those essentials are preserved, when the legislature specifies the basic conclusions of fact, upon ascertainment of which, from relevant data, by a designated administrative agency, it ordains that its statutory command is to be effective.
The legislature having thus made its laws, it is clear that every detail for working it out and for carrying the enactments into operation and effect may be done by the legislature or may be left to another subordinate agency or to some executive officer.
While this also is sometimes described as a delegation of legislative powers, in essence it is different from delegation of legislative power which means a determination of the legislative policy and formulation of the same as a rule of conduct.
" To the same effect were the observations of Mukherjea J. in that case at p. 982: "The essential legislative function consists in the determination or choosing of the legislative policy and of formally enacting that policy into a binding rule of conduct.
It is open to the legislature to formulate the policy as br oadly and with as little or as much details as it thinks proper and it may delegate the rest of the legislative work to a subordinate authority who will work out the details within the framework of that policy. 'So long as a policy is laid down and a standard established by statute no constitutional delegation of legislative power is involved in leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the legislation is to apply '.
" What we have to see therefore is whether the legislature in this case performed its essential legislative function of determining and choosing the legislative policy and of formally enacting that policy into a binding rule of conduct.
It was open to the legislature to formulate that policy as broadly and with as little or as much details as it thought proper.
Thereafter once a policy is laid down and a standard established by statute, there is no question of delegation of 427 legislative power and all that remains is the making of subordinate rules within prescribed limits which may be left to selected instrumentalities.
If therefore the legislature in enacting section 3 has chosen the legislative policy and has formally enacted that policy into a binding rule of conduct, it could leave the rest of ' the details to Government to prescribe by means of subordinate rules within prescribed limits.
Now section 3 lays down under what conditions it would be open to Government to act under that section; it also lays down that the Government may act by passing general or special order, once those conditions are fulfilled; it also provides what will be contained in the general or special order of Government.
The power given to Government is inter alia to appoint industrial courts, to refer any industrial dispute for conciliation or adjudication in the manner provided in the order, and to make any incidental or supplementary provision which may be necessary or expedient for the purposes of the order.
Thus the legislature has indicated its policy and has made it a binding rule of conduct.
It has also indicated when the Government shall act under section 3 and how it shall act.
It has further indicated what it shall do when it acts under section 3.
In these circumstances we are of the opinion that it cannot be said that the delegation made by section 3 is excessive and goes beyond permissible limits.
The order to be passed by the Government under section 3 would provide, inter alia, for appointment of industrial courts, for referring any industrial dispute for conciliation or adjudication, and for incidental or supplementary matters which may be necessary or expedient.
The Government will have to act within those prescribed limits when it passes, an order under section 3 which will have the force of subordinate rules.
What has been urged on behalf of the appellants is that the section does not indicate what powers the industrial courts will have, what will be the qualifications of persons constituting such courts and Where they will sit; and it is urged that these are essential matters which the legislature should have provided for itself Reference in this connection was made to the observations of the Privy Council in 428 Queen vs Burah (1), which was a case of conditional legislation.
The Privy Council observed there that the proper legislature having exercised its judgment as to place, person, laws and powers and the result of that judgment having been conditional legislation as to all these things, the legislation would be absolute as soon as the conditions a re fulfilled.
These observations have in our opinion nothing to do with such matters of detail as the place where a court or tribunal will sit or the qualifications of persons constituting the tribunal; they refer to more fundamental matters when the words "place" and "person" are used therein.
The place there must mean the area to which the legislation would apply; and so far as that is concerned, the legislature has determined the area in this case to which section 3 will apply, namely, the whole of the State of Uttar Pradesh.
Similarly, the word "Person" used there refers to persons to whom legislation will apply and that has also been determined by the legislature in this case, namely, it will apply to employers and employees of industrial concerns.
We have already said that the conditions under which the order will be passed have also been set out in the opening part of section 3, and how the Government will act is also set out, namely, by referring any industrial dispute that may arise for conciliation or adjudication.
As to the power of the industrial court that in our opinion is also provided by section 3, namely, that an industrial court will adjudicate on the industrial dispute referred to it.
Therefore all that was left to the Government to provide was to set up machinery by means of a general order which has the force of subordinate rules to carry out that legislative policy which has been enacted in broad details in section 3 and has been formally enacted into a binding rule of con.
We are therefore of opinion that section 3 is not unconstitutional in any manner, for there is no delegation of essentials of legislative function thereunder.
All that has been left to the Government by that section is to provide by subordinate rules for carrying out the purpose of the legislation.
We must therefore reject (1) (1878) L.R. 5 I.A. 178 429 the contention that section 3 is unconstitutional on the ground that it suffers from the vice of excessive delegation.
This brings us to the validity of the general order No. 615 of March 15, 1951, passed under section 3.
The preamble to that order was in these terms: "In exercise of the powers conferred by clauses (b), (c), (d) and (g) of section 3 and section 8 of the U. P. , (U. P. Act No. XXVIII of 1947) and in supersession of Government order No. 781(L)/XVIII dated March 10, 1948, the Governor is pleased to make the following order, and to direct, with reference to section 19 of the said Act, that notice of this Order be given by publication in the Official Gazette.
" Then follows the order setting up conciliation boards for the purpose of conciliation and industrial tribunals for the purpose of adjudication.
The main contention on behalf of the appellants is that section 3 prescribes certain conditions precedent before an order could be passed thereunder and those conditions precedent must be recited in the order in order that it may be a valid exercise of the power conferred by section 3.
Now there is no doubt that section 3 gives power to the State Government to make certain provisions by general or special order, if, in its opinion, it is necessary or expedient so to do for securing public safety or convenience, or the maintenance of public order or supplies and services essential to the life of the community or for maintaining employment.
The forming of such opinion is a condition precedent to the making of the order.
The preamble to the second order also does not contain a recital that the State Government had formed such opinion before it made the order.
It is therefore contended on behalf of the appellants that the orders were bad as the condition precedent for their formulation was not recited in the orders themselves.
At a later stage the appellants also contended that in any case the orders were bad because as a fact they were passed without any satisfaction of the State Government as required under section 3, though no affidavit was filed by the appellants in this behalf in support 430 of this averment.
Unfortunately, the State also filed no affidavit to show that the conditions precedent provided ins.
3 had been complied with, even though there was no recital thereof on the face of the order.
We should have expected that even though the appellants did not file an affidavit in support of their case on this aspect of the matter, the State would as a matter of precaution have filed an affidavit to indicate whether the conditions precedent set out in section 3 had been complied with, considering that it was a general order which was being attacked under which a large number of adjudications must have taken place.
The High Court has commented on this aspect of the matter and has said that the State Government did not file any affidavit in this connection to show that as a matter of fact the State Government was satisfied as required by section 3 even though there was no recital of that satisfaction in the order itself Taking into account, however, the importance of the matter, particularly as it must affect a large number of adjudications affecting a large number of employers and workmen, we asked the State Government if it desired to file an affidavit before us even at this stage.
Thereupon the State Government filed an affidavit sworn by the Secretary to Government, Labour Department.
The affidavit says that the drafts of G. O. No. 615 and the consequential order G. O. No. 671 passed on March 15, 1951, were put up before the then labour Minister.
The said notifications were issued only after all the aspects of the matter were fully considered by the State Government and it had satisfied itself that it was necessary and expedient to issue the same for the purpose of securing public convenience, and maintenance of public order and supplies and services essen tial to the community and for the maintenance of employment.
We accept this affidavit and it follows therefore that the satisfaction required as a condition precedent for the issue of an order under section 3 of the Act was in fact there before the order No. 615 was passed on March 15, 1951, followed by the consequential order No. 671 of the same date.
In view of this the only question that we have to consider is whether 431 it is necessary that the satisfaction should be recited in the order itself and whether in the absence of such recital an order of this nature would be bad.
The first contention of Shri Patliak, who appears for one of the appellants, is that where a condition precedent is laid down for a, statutory power being ' exercised it must be fulfilled before a subordinate authority can exercise such delegated power.
As to this contention there can be no dispute.
Further, according to Shri Pathak, there must be a recital.
in the order that the condition is fulfilled before the subordinate authority acts in the exercise of such delegated power.
If there is no such recital in the instrument by which the delegated power is exercised, the defect cannot be cured by an affidavit filed in the proceedings and the order would be bad ab initio.
It is urged that where subordinate rules of this nature have to be made and they affect the general public or a section thereof, conditions precedent to the exercise of the power must be recited when the power is exercised in order that the public may know that the rules are legal and framed after satisfying the conditions necessary for the, purpose.
Moreover, some of the subordinate rules may have to be enforced by courts and tribunals and it is necessary that courts and tribunals should also know by the presence of the recital in the order that the rules are legal and binding and have been 'framed after the condition precedent had been satisfied.
In particular, it is urged that where the rules are of a general nature and are subordinate legislation the satisfaction of the condition precedent becomes a part of the legislative process so far as the subordinate authority is concerned and the defect in legislative process cannot be remedied later by affidavit.
Shri C. B. Aggarwala on the other hand contends that where a statute gives power to make an order subject to certain conditions then unless the statute requires the conditions to be set out in the order it is not necessary that the conditions should appear on the face of the order and in such a case it should be presumed that the condition was satisfied unless the 432 contrary is established.
He drew a distinction between those cases where the condition precedent is the subjective opinion of the subordinate ' authority and those where the statute requires a hearing and a finding.
In the former case he contends that the presumption should be in favour of the opinion having been formed before the order was passed though in the latter case it may be that the order should show that there was a hearing and a finding.
The power to pass an order under section 3 arises as soon as the necessary opinion required thereunder is formed.
This opinion is naturally formed before the order is made.
If therefore such an opinion was formed and an order was passed thereafter, the subsequent order would be a valid exercise of the power conferred by the section.
The fact that in the notification which is made thereafter to publish the order, the formation of the opinion is not recited will not take away the power to make the order which had already arisen and led to the making of the order.
The validity of the order therefore does not depend upon the recital of the formation of the opinion in the order but upon the actual formation of the opinion and the making of the order in consequence.
It would therefore follow that if by inadvertence or otherwise the recital of the formation of the opinion is not mentioned in the preamble to the order the defect can be remedied by showing by other evidence in proceedings where challenge is made to the validity of the order, that in fact the order was made after such opinion had been formed and was thus a valid exercise of the power conferred by the law.
The only exception to this course would be where the statute requires that there should be a recital in the order itself before it can be validly made.
There is no doubt that where a statute requires that certain delegated power may be exercised on fulfilment of certain conditions precedent, it is most desirable that the exercise should be prefaced with a recital showing that the condition had been fulfilled.
But it has been held in a number of cases dealing with executive orders that even if there is some lacuna of 433 this kind, the order does not become ab initio invalid and the defect can be made good by filing an affidavit later on to show that the condition precedent was satisfied.
In The State of Bombay vs Purushottam Jog Naik (1), which was a case relating to preventive detention it was held by this Court that even if the order was defective in form it was open to the State Government to prove by other means that it was validly made.
In Biswabhusan Naik vs The State of Orissa (2), which was a case relating to sanction under the Prevention of Corruption Act, No. II of 1947, this Court held that "it is desirable to state the facts on the face of sanction, because when the facts are not set out in the sanction, proof has to be given aliunde that sanction was given in respect of the facts constituting the offence charged; but an omission to set out the facts in the sanction is not fatal so long as the facts can be and are proved in some other way".
In a later case in The State of Bombay vs Bhanji Munji (3) which was a case of requisition under the Bombay Land Requisition Act, this Court held that it was not necessary to set out the purpose of the requisition in the order; the desirability of such a course was obvious because when it was not done proof of the pur pose must be given in other ways.
But in itself an omission to set out the purpose in the order was not fatal so long as the facts were established to the satisfaction of the court in some other way.
We see no difficulty in following this principle in the case of those orders also which are in the nature of subordinate legislation.
Whether orders are executive or in the nature of subordinate legislation their validity depends on certain conditions precedent being satisfied.
If those conditions precedent are not recited on the face of the order and the fulfilment of the conditions precedent can be established to the satisfaction of the court in the case of executive orders we do not see why that cannot be made good in the same way in the case of orders in the nature of (1) ; (2) ; (3) [1955] 1 S.C.R. 777.
55 434 subordinate legislation.
We cannot accept the extreme argument of Shri Aggarwala that the mere fact that the order has been passed is sufficient to raise the presumption that conditions precedent have been satisfied, even though there is no recital in the order to that effect.
Such a presumption in our opinion can only be raised when there is a recital in the order to that effect.
In the absence of such recital if the order is challenged on the ground that in fact there was no satisfaction, the authority passing the order will have to satisfy the court by other means that the conditions precedent were satisfied before the order was passed.
We are equally not impressed by Shri Pathak 's argu ment that if the recital is not there, the public or courts and tribunals will not know that the order was validly passed and therefore it is necessary that there must be a recital on the face of the order in such a case before it can be held to be legal.
The presumption as to the regularity of public acts would apply in such a case; but as Boon as the order is challenged and it is said that it was passed without the conditions precedent being satisfied the burden would be on the authority to satisfy by other means (in the absence of recital in the order itself) that the conditions precedent had been complied with.
The difference between a case where a general order contains a recital on the face of it and one where it does not contain such a recital is that in the latter case the burden is thrown on the authority making the order to satisfy the court by other means that the conditions precedent were fulfilled but in the former case the court will presume the regularity of the order including the fulfilment of the conditions precedent; and then it will be for the party challenging the legality of the order to show that the recital was not correct and that the conditions precedent were not in fact complied with by the a uthority: [see the observations of Spens C. J. in King Emperor vs Sibnath Banerjee (1), which were approved by the Privy Council in King Emperor vs Sibnath Banerjee (2)].
Nor are we impressed with the contention of Shri Pathak that conditions become a part of (1) , 42.
(2) , 216 7. 435 legislative process and therefore where they are not complied with the subordinate legislation is illegal and the defect cannot be cured by an. affidavit later.
It is true that such power may have to be exercised subject to certain conditions precedent but that does not assimilate the action of the subordinate executive authority to something like a legislative procedure, which must be followed before a bill becomes a law.
Our conclusion therefore is that where certain conditions precedent have to be satisfied before a subordinate authority can pass an order, (be it executive or of the character of subordinate legislation), it is not necessary that the satisfaction of those conditions must be recited in the order itself, unless the statute requires it, though, as we have already remarked, it is most desirable that it should be so, for in that case the presumption that the conditions were satisfied would immediately arise and burden would be thrown on the person challenging the fact of satisfaction to show that what is recited is not correct.
But even where the recital is not there on the face of the order, the order will not become illegal ab initio and only a further burden is thrown on the authority passing the order to satisfy the court by other means that the conditions precedent were complied with.
In the present case this has been done by the filing of an affidavit before us.
We are therefore of opinion that the defect in the two orders of March 15, 1951, has been cured and it is clear that they were passed after the State Government was satisfied as required under section 3 of the Act.
Therefore Government Orders Nos. 615 and 671 of March 15, 1951, with which we are concerned in the present appeals are valid under section 3 of the Act.
It remains to consider certain cases cited by Shri Pathak in support of his contention.
The first case to which reference may be made is Wichita Railroad & Light Company vs Public Utilities Commission of the State of Kansas (1).
That was a case of a Commission which had to give a hearing and a finding that they were unreasonable before contract rates with a public (1) ; 436 utility company could be changed.
After referring to section 13 of the Act under consideration, the U. section Supreme Court held that "a valid order of the Commission under the act must contain a finding of fact after hearing and investigation, upon which the order is founded, and that, for lack of such a finding, the order in this case was void".
It rejected the argument that the lack of express finding might be supplied by implication and by reference to the averments of the petition invoking the action of the Commission and rested its decision on the principle that an express finding of unreasonableness by the Commission was indispensable under the statutes of the State.
This case in our opinion is based on the provision of the statute concerned which required such a finding to be stated in the order and is no authority for the proposition that an express recital is necessary in the order in every case before a delegate can exercise the power delegated to it.
The next case is Herbert Mahler vs Howard Eby That was a case dealing with deportation of aliens.
The statute provided for deportation if the Secretary (Labour) after hearing finds that such aliens were undesirable residents of United States.
But the Secretary made no express finding so far as the warrant for deportation disclosed it.
Nor was the defect in the warrant of deportation supplied before the court.
The court held that the finding was made a condition precedent to deportation and it was essential that where an executive is exercising delegated legislative power he should substantially comply with all the statutory requirements in its exercise, and that, if his making a finding is a condition precedent to this act, the fulfilment of that condition should appear in the record of the act, and reliance was placed on the case of Wichita Railroad & Light Company vs Public Utilities COmmission (2).
This again was a case of a hearing and a finding required by the statute to be stated in the order and must therefore be distinguished from a case of the nature before us.
It may however be added that the court did not discharge the deportees and (1) ; (2) ; 437 gave a reasonable time to the Secretary (Labour) to correct and perfect his finding on the evidence produced at the original hearing or to initiate another proceeding against them.
The last case is Panama Refining Company vs A. D. Ryan(1).
In that case section 9 (e) of the National Industrial Recovery Act of 1933 was itself struck down on the ground of excessive delegation, though it was further held that the executive order contained no finding and no statement of the grounds of the President 's action in enacting the prohibition.
This case in our opinion is not in point so far as the matter before us is concerned, for there the section itself was struck down and in consequence the executive order passed thereunder was bound to fall.
We are therefore of opinion that section 3 of the Act is constitutional so far as els.
(c), (d) and (g) are concerned and orders Nos. 615 and 671 passed on March 15, 1951 are legal and valid.
In the circumstances it is not necessary to consider whether the High Court was right in holding that the orders of references in these cases were special orders under section 3 and the references under those orders were therefore valid.
In this view of the matter, the appeals fail and are hereby dismissed.
In the circumstances we pass no order as to costs.
Appeals dismissed.
(1) (1935) 79 L. Ed 446.

summary:
Clauses (c), (d) and (9) of section 3 of the U. P. , empower the State Government to make provision, by general or special order, for appointing industrial courts, for referring any industrial dispute for conciliation or adjudication in the manner provided in the order and for any incidental or supplementary matters which appear to the State Government necessary or expedient for the purposes of the order.
Section 3 provides that such a general or special order is to be made if, in the opinion of the State Government it is necessary or expedient to do so for securing the public safety or convenience, or the maintenance of public order or supplies and services essential to the life of the community, or for maintaining employment.
On March 15, 1951, the State Government made a general order No. 615 under these provisions but did not recite in the order its opinion as to the existence of the conditions prescribed in section 3.
A reference of an industrial dispute was made under the G. O. and an award was given against the appellant.
The appellant contended that the G. O. setting up the industrial tribunals was invalid as section 3 of the Act was unconstitutional as it delegated essential legislative functions to the Government so far as cls.
(c), (d) and (g) were concerned and that the G. O. was bad as the condition precedent for its formulation was not recited in the order itself.
The respondent filed an affidavit that Government had formed the requisite opinion before making the G. O. Held, that section 3 was not unconstitutional as there was no delegation of essential legislative functions to the Government.
The legislature has indicated its policy and has made it a binding rule of conduct.
Section 3 lays down the conditions in which the Government is to act; it lays down that Government may make general or special order if the conditions are satisfied; it SC6213 423 also provides what those orders are to contain.
All that is left to the Government is to provide by subordinate rules for carrying out the purpose of the legislation.
In re The ; , and Queen vs Burah, (1878) L.R. 5 I.A. 178, applied.
Held, further, that the G. O. was valid and the failure to mention the condition precedent in the order itself was remedied by the filing of the affidavit.
Where a condition precedent has to be satisfied before a subordinate authority can pass an order, (executive or in the nature of subordinate legislation), it is not necessary that the satisfaction of the condition should be recited in the order itself, unless the statute requires it.
But it is desirable that it should be so mentioned for ' then the presumption that the condition was satisfied would immediately arise and the burden would be on the persons challenging the order to show that the recital is not correct.
Even when the recital is not made in the order, it will not become void abinitio and only a further burden is cast on the authority passing the order to satisfy the court by other means, e. g., by filing an affidavit, that the condition precedent was satisfied.
The State of Bombay vs Purushottam jog Naik, [1952] S.C.R. 674, Biswabhusan" Naik vs The State of Orissa, ; and The State of Bombay vs Bhanji Munji, [19551, S.C.R. 777, applied.
King Emperor vs Sibnath Banerjee, and King Emperor vs Sibnath Banerjee,. , referred to.
Wichita Railroad & Light Company vs Public Utilities Com mission of.
the State of Kansas; , , Herbert Mahler vs Howard Eby, ; and Panama Refining Company vs A. D. Ryan, (1935) 79.L. Ed. 446.
distinguished.


judgement:
Appeal No. 270 of 1955.
Appeal by special leave from the judgment and decree dated March 24, 1952, of the Judicial Commissioner 's Court, Vindhya Pradesh, in First Appeal No. 16 of 1958.
Appeal by special leave from the judgment and decree dated March 24, 1952, of the Judicial Commissioner 's Court, Vindhya Pradesh, in First Appeal No. 16 of 1952.
L.K. Jha, A. D. Mathur and R. Patnaik, for the appellant.
N.C. Chatterjee, and D. N. Mukherjee, for respondent No. 1. 1961.
March 16.
The Judgment of P. B. Gajendragadkar, K. Subba Rao, K. N. Wanchoo and J. R. Mudholkar, JJ., was delivered by Mudholkar, J. A. K. Sarkar, J., delivered a separate Judgment, MUDHOLKAR, J. This is an appeal by Special leave and the main point involved in it is whether the Rewa State Pre emption Act, 1949, is unconstitutional on the 360 ground that it places an unreasonable restriction upon the right to acquire property enumerated in cl.
(1)(f) of article 19 of the Constitution.
But before we hear arguments upon this point it is necessary to dispose of the preliminary objection raised on behalf of ' the plaintiff respondent No. 1 by Mr. N. C. Chatterjee to the effect that the defendant appellant is precluded from proceeding with the appeal because subsequent to the grant.
of special leave to appeal, to him he withdrew the price of pre emption which was deposited by the respondent No. 1 in the court below.
He contends that by withdrawing the pre emption price the appellant must be deemed to have accepted the decree which alone entitled him to the amount and that, therefore, he cannot be heard to say that the decree is erroneous.
In short, Mr. Chatterjee relies upon the doctrine that a person cannot be allowed to approbate and reprobate.
In support of his contention, learned counsel has relied upon the well known case of Tinkler vs Hilder (1) and other cases which follow that decision or which proceed on the same reason as that in Tinkler 's case (1).
Those decisons are: Banku Chandra Bose vs Marium Begum ( 'a); Ramendramohan Tagore vs Keshabchandra Chanda (2); Mani Ram vs Beharidas (3); section K. Veeraswami Pillai vs Kalyanasundaram Mudaliar & Ors.
(4); Venkatarayudu vs Chinna (5) and Pearce vs Chaplin (6).
The two English decisions just referred to and some of the Indian decisions were considered in Venkata.
rayudu vs Chinna (5).
Dealing with them Venkatasubba Rao, J., observed as follows: "What is the principle underlying these decisions When an order shows plainly that it is intended to take effect in its entirety and that several parts of it depend upon each other, a person cannot adopt one part and repudiate another.
For instance, if the Court directs that the suit shall be restored on the plaintiff paying the costs of the opposing party, (1) ; (2) Cal.
(4) A.I.R. 1927 Mad. 1009.
(1a) (1915] (3) A.I.R. 1955 Raj.
(5) (6) ; [1846] 9 Q.B. 802: 361 there is no intention to benefit the latter, except on the terms mentioned in the order itself.
If the party receives the costs, his act is tantamount to adopting the order. .
According to Halsbury this rule is an application of the doctrine "that a person may not approbate and reprobate" (13 Halsbury, para 508). . . .
In other words,to allow a party, who takes a benefit under such an order, to, complain against it, would be to permit a breach of faith".
The view taken in the other cases proceeds on similar reasoning But what has to be noted is that in all these cases the benefit conferred by the order was something apart from the merits of the claim in, volved in these cases.
What we are called upon to decide is whether the appellant by withdrawing the pre emption price can be said to have adopted the decree from which he had already preferred an appeal.
The appellant did not seek to execute the decree, and indeed the decree did not confer a right upon him to sue out execution at all.
The decree merely conferred a right upon the plaintiff respondent No. 1 to deposit the price of pre emption and upon his doing so, entitled him to be substituted in the sale deed in place of the vendee.
The act of the appellant in withdrawing the pre emption price after it was deposited by the respondent No. 1 cannot clearly amount to, an adoption by him of the decree which he had specifically challenged in his appeal.
Upon the principles underlying the aforesaid decisions a person who takes benefit under an order de hors the claim on merits cannot repudiate that part of the order which is detrimental to him because the order is to take effect in its entirety.
How can it be said that a vendee in a pre emption suit against whom a decree is passed takes any "benefit" thereunder? No doubt, he has a right to be paid the pre emption price before the pre emption decree becomes effective but tile price of pre emption cannot be characterised as a benefit under the decree.
It is only in the nature of compensation to the vendee for the loss of his property.
46 362 For this reason the principle of the aforesaid decision would not apply to such a decree.
A question similar to the one before us had arisen in the Punjab in several cases and in particular in the judgment of Lal Chand, J., in Sundara Das vs Dhanpat Rai (1).
What the court held there is that the right of appeal is not forfeited by the vendee merely because he has withdrawn the money deposited by the preemptor in whose favour a decree for pre emption has been passed.
No reference is made by the learned judge to the decisions in Tinkler 's case (2) and in Pearce 's, case (3) and, therefore, this decision and other similar decisions are of little assistance in considering the "argument advanced by Mr. Chatterjee.
It seems to us however, that in the absence of some statutory provision or of a well recognised principle of equity, no one can be deprived of his legal rights including a statutory right of appeal.
The phrase "approbate and reprobate" is borrowed from Scotch Law where it is used to expres the principle embodied in the English doctrine of election, namely, that no party can accept and reject the same instrument (per Scrutton, L. J., in Verschures Creameries vs Hull and Netherlands Steamship.
, Co.,(4).
The House of Lords further pointed out in Lissenden vs C. A. V. Bosch, Ltd. (5) that the equitable doctrine of election applies only when an interest is conferred as an act of bounty by some instrument.
In that case they held that the withdrawal by a workman of the compensation money deposited by the employer could not take away the statutory, right of appeal conferred upon him by the Workmen 's Compensation Act.
Lord Maugham, after pointing out the limitations of the doctrine of approbate and reprobate observed towards the conclusion of his speech: "It certainly cannot be suggested that the receipt of the sum tendered in any way injured the respondents.
Neither estoppel nor release in the ordinary sense was suggested.
Nothing was less served than (1) (1907] P. R. No. 16.
(2) ; (3) ; (1846) 9 Q.B. 802: (4) (5) [1940] A.C 412.
363 the principles either of equity or of justice." (pp. 421 422).
Lord Wright agreed with Lord Maugham and Lord Atkin and declined to apply the "formula" to the appeal before the House because there was no question of the appellant having alternative or mutually exercisable right to choose from.
No doubt, as pointed out by Lord At that in a conceivable case the receipt of a remedy under a judgment may be made in such circumstances as to preclude an appeal.
But he did not think it necessary to discuss in what circumstance the statutory right of appeal may be lost and added: "I only venture to say that when such cases have to be considered it may be found difficult to apply this doctrine of election to cases where the only right in existence is that determined by the judgment: and the only conflicting right is the statutory right to seek to set aside or amend that judgment: and that the true solution may be found in the words of Lord Blanesburgh in Moore vs Cunard Steamship Co. (1)".
According to Lord Blanesburgh when an order appealed against and later set aside, has been acted upon in the meantime "any mischief so done is undone" by an appropriate order.
Thus the only question which has to be considered is whether the party appealing has so conducted himself as to make restitution impossible or inequitable.
Thus, according to the House of Lords it is to cases in which a party has so conducted himself as to make restitution impossible or inequitable that the principle on which the decision in Tinkler 's case (2), is.
based, may apply.
Referring to this case and three other similar cases Lord Atkin observed: "In any case they form very flimsy foundation for such a wide reaching principle applicable to all appeals Its was asserted in this case: and if they did lead to that result should not be followed.
428 429).
(3) The Lissenden case has thus in clear terms (1) (2)(1849) 4 Ex 187; ; (3) 364 indicated what the limitations of the Scotch doctrine are.
If, therefore, what was laid down in this case is the common law of England according to its highest judicial tribunal, it is only that law which the courts in this country may apply on the principles of natural justice and not what was supposed to be the common law in certain earlier decisions.
It seems to us that a statutory right of appeal cannot be presumed to have come to an end because the appellant has in the meantime abided by or taken advantage of something done by the opponent under the decree and there is no justification for extending the rule in Tinkler 's case (1) to cases like the present.
In our judgment it must be limited only to those cases where a person has elected to take a benefit otherwise than on the merits of the claim in the lis under an order to which benefit he could not have been entitled except for the order.
Here the appellant, by withdrawing the preemption price has not taken a benefit de hors the merits.
Besides, this is not a case where restitu tion is impossible or inequitable.
Further. it seems to us that the existence of a choice between two rights is also one of the conditions necessary for the applicability of the doctrine of approbate and reprobate.
In the case before us there was no such choice before the appellant and, therefore, his act in withdrawing the preemption price cannot preclude him for continuing his appeal.
We., therefore, overrule the preliminary objection.
The appeal will now be set down for hearing on merits.
The costs of this hearing will be costs in the appeal.
SARKAR, J.
It seems to me that the objection to the maintainability of this appeal must succeed.
The appellant having taken the benefit of the decree cannot now challenge its validity.
The decree was passed in a suit for preemption brought in May, 1951 by the respondent Baijnath, whom I will call the respondent.
against the appellant, the purchaser of certain property and the vendors, the other respondents who have not appeared in this appeal.
The suit was dismissed by the trial Court but (1) ; 365 on appeal it was decreed by the Judicial Commissioner Vindhya Pradesh, on March 24,1952.
The learned Judicial Commissioner held that the respondent had the right of pre emption and that the purchase money payable by him to the appellant for preemption of the property, *as Rs. 3,000 and directed the respondent to pay this sum into court within four months.
The respondent duly paid this sum into court.
The appellant obtained special, leave from this Court to appeal from the judgment of the learned Judicial Commissioner and thereafter withdrew from court the amount paid in by the respondent.
The present appeal arises under this leave.
The decree that was drawn up only stated that the appeal was allowed with costs and the period of grace was four months.
In view of Or.
XX, r. 14, of the Code of Civil Procedure, the decree, in spite of its informality, must be understood as providing that upon the respondent paying the amount found payable as purchase money into court within the time fixed, the appellant would deliver possession of the property to him and his title to it would be deemed to have accrued from the date of the payment into court and that, in default of such payment the suit would stand dismissed with costs.
Now, there is not the slightest doubt that in with.
drawing the money from court the appellant had acted entirely on his free choice; he had in no way been compelled to do so, nor been induced thereto by any act of the respondent.
The respondent had done nothing to put the decree in execution and obtain possession of the property from the appellant.
The appellant need not have withdrawn the money if he so liked and that would not in the least have prejudiced his interest.
He has all along been in possession of the property since he purchased it on June 7, 1950 and he has been in enjoymeint of the money also sine( he withdrew it from court on November 14, 1953.
It seems to me that on these facts the appellant cannot proceed with the appeal.
He cannot be permitted to pursue inconsistent courses of conduct.
By withdrawing the money, he has of his free choice, 366 adopted the decree and must, therefore, be precluded from challenging its validity.
He had no right to the money excepting such as the decree gave him.
Having exercised that right he cannot be heard to say that the decree was invalid and, therefore, the right which he had exercised, had never existed.
The rule is well established in England as well as in our country, that a litigant is not permitted such inconsistent courses of conduct and, so far as I am aware, never been departed from.
As early as 1849 in Tinkler vs Hilder (1), Pollock, C. B., in dealing with a rule to set aside an order said, "It might be discharged simply on this narrow ground, that, under the circumstances of this case, the party applying to set aside the order in question in point of fact has adopted it by taking something under it".
In King vs Simmonds (2) and Pearce vs Chaplin (3) the same line of reasoning was adopted.
It is true that in these cases the orders were said to have been adopted because costs, for the payment of which they had provided, had been received.
It is also true that the orders were not such to which the parties directed to pay the costs, were entitled as a matter of right.
But all these do not seem to me to make any difference.
The question is, are the circumstances such that it would be inconsistent conduct to accept a benefit under an order and then to challenge it? I should suppose that for this purpose costs are as much benefit as anything else given by the order.
Likewise when the orders were discretionary or such to which there was no right ex debito justitiae, there would be no reason to say that there could be no inconsistency if they were challenged after benefits under them had been accepted.
For deciding such inconsistency, I am unable to discover that the discretionary nature of the order has any materiality.
Coming to more recent times, we get the case of Dexters Ld.
vs Hill Crest Oil Co. Ld.
There a person, who had taken money under an award made in a commercial arbitration in accordance with which a (1) ; (3) (1846) 9 Q B 802.
(2) ; (4) [1926] 1 K.B 348. 367 judgment had been entered in a special case stated to court, was held precluded from appealing from that judgment.
This, it will be noticed, was not a case where an order was considered to have been adopted because of receipt of costs given by it but because of the receipt of the sum of money which was claimed and which was given by the award.
Scrutton, L. J., observed, (p. 358) "It startles me to hear it argued that a person can say the judgment is wrong and at the same time accept payment under the judgment as being right".
I will conclude the reference to the English authorities by reading what Lord Russel of Killowen said in Evans vs Bartlam (1), "a man having accepted a benefit given him by a judgment cannot allege the invalidity of the judgment which conferred the benefit".
Of the cases on the point in our country I may refer to Manilal Guzrati vs Harendra Lal (2), Banku Chandra Bose vs Marium Begum (3), Humrybux Deora vs Johurmull Bhotoria (4) and Venkatarayudu vs Chinna (5).
Hurrybux Deora 's case (4) was an appeal from a decree in a suit for the redemption of a mortgage.
The plaintiff had accepted the amount found by the decree passed by the trial Court to be due to him from the mortgagee in possession and receipt of the income of the mortgaged property, and had thereafter filed the appeal asking that he was entitled to more.
Rankin, C. J., who delivered the judgment of the Court, held that there was no inconsistency in the conduct of the appellant and the rule 1 had so long been discussing had, therefore, no application.
This was plainly right.
The appellant had accepted the decree passed and in the appeal did not challenge its correctness so far as it went but only contended that it had not gone far enough.
As has been said, he was not blowing hot and cold but only blowing hotter: see per Greer, L.J., in Mills vs Duckworth (6).
Referring to King vs Simmonds (7), Pearce vs Chaplin (8) and Tinkler vs Hilder (9) which I have earlier (1) , 483.(2) (3) (5) 32 1.
(7) ; (1846) 9 Q.B. 802.
(9) (1849) 4 Exc 1187: ; 368 cited, Rankin, C.J., said (p. 714) that they "are clearly inapplicable except upon the basis that the Defendant is seeking to challenge an order after accepting the benefit of a term or condition imposed upon the Opposite, Party at whose instance the order was made".
He was of the view that this basis did not exist in the case which he had before him.
Rankin, C.J., also referred to another old English case, namely, Kennard vs Harris (1).
, There, a rule to set aside an award of an arbitrator was discharged when it was shown that the party who had obtained the rule had accepted the costs of the reference and the award.
Rankin, C.J., said with reference to this case that (p. 713), "A person who accepts costs payable under an award or any other sum of money given to him by an award is held to be precluded from asking the Court to set aside the award".
He however also observed that An award is bad unless it deals with the whole matter submitted and prima facie cannot be set aside in part only".
It may be that Rankin, C.J., was making a distinction, which is obviously correct, between an award which can be set aside only as a whole because it is one and indivisible and a judgment which might be in severable parts in which case, the adoption of a part by a party would not preclude him from challenging another part which was independent.
Rankin, C.J., did not think, and if I may say so with respect, correctly, that the principle of Kennard vs Harris (1) had any application to the facts of the case before him, for, there no part of the judgment was sought to be challenged by the appeal, excepting perhaps an independent part which by implication rejected the appellant 's claim to a larger sum.
In Venkatarayudu 's case (2), Venkatasubba Rao, J., after discussing various cases, to some of which I have referred, observed, (p. 141) "What is the principle underlying these decisions? When an order shows plainly that it is intended to take effect in its entirety and that several parts of it depend upon each other, (1) ; (1824) 2 B. & C. 80; (2) 369 a person cannot adopt one part and repudiate another".
It seems to me beyond doubt that the principle of these cases is applicable to the facts of the present appeal.
Here we have a decree which is one and indivisible.
The effect of it is that upon the respondent paying the money into court he would be entitled to the property and to obtain possession of it and the appellant would be entitled to withdraw the money.
The appellant has no right to the money whatsoever independent of the decree; he had no right to compel the respondent to purchase the property from him on payment of a price.
Indeed the appellant had been contending that the respondent was not entitled to purchase the property from him by paying the price.
The appellant could have drawn out the money only on the basis that the decree had been properly passed.
Therefore, by withdrawing the money he adopted its correctness and cannot now say it is incorrect.
It seems to me that the observation of Venkatasubba Rao, J., in Venkatarayudu 's case (1) (P. 141) that " to allow a party, who takes a benefit under such an order, to complain against it, would be to permit a breach of faith", would apply fully to the conduct of the appellant.
So would the observations of Rankin, C. J., in Hurrybux Deora 's case (2) on King vs Simmonds (3), Pearce vs Chaplin (4) and Tinkler vs Hilder (5).
The present is a case where the appellant was seeking to challenge an order after accepting the benefit of a term or condition, that is to say, as to the payment of money into court, imposed upon the respondent at whose instance the order was made; that the obligation to pay money was a term or condition 'imposed upon the respondent is manifest because the decree provided that if the money was not paid, the suit would stand dismissed with costs.
Again the judgment in the present case is like an award for it is one whole and cannot be set aside in parts.
Therefore what (1) (3) ; (2) (4) (1846) 9 Q.B. 802.
(5) ; 47 370 Rankin, C. J., said in regard to Kennard vs Harris which turned on an award, namely, that a person who accepts costs or a sum of money given to him by an award cannot ask to have it set aside, would also be applicable.
I find it impossible to conceive that this judgment consists of several parts or that such parts are severable.
The learned counsel for the appellant was able to refer us to only one case in support of his contention that the appeal could be proceeded with and that was Sunder Das vs Dhanpat Rai (2).
That was also a case of pre emption.
There, however, the plaintiff who had obtained the decree for pre emption in his favour, had executed that decree and obtained possession of the property concerned.
The defendant appealed from the decree but was unsuccessful.
in the first appellate court.
He then appealed to the Chief Court at Lahore and when the appeal was pending there, withdrew the purchase money paid into court by the plaintiff under the decree of the trial Court.
The Chief Court held that this (lid not preclude the defendant from proceeding with the appeal before it.
The facts of that case were substantially different from those before us.
It may be said that the defendant having been compelled to part with the property, was justified in withdrawing of the money from the court and that a withdrawal in such circumstances did not amount to an adoption of the decree.
That cannot be said in the present case.
Whether on the facts, Sunder Das 's case (2) was rightly decided or not, is not a matter on which I feel called upon to express any opinion.
If however that case intended to lay down a principle which would warrant the appellant on the facts of the case in band in proceeding_ with this appeal, I am unable to agree with it.
It would then be in conflict with all the authorities on the point and none of these was noticed in the judgment, in that case.
I do not think that Sunder Das 's case (2) is of sufficient authority to warrant a departure from the principle uniformly followed by the courts.
(1) ; (2) 1907 P.R.
No 16.
371 It is necessary, however, before I conclude, to refer to the comparatively recent case of Lissenden vs C. A. V. Bosch Ltd. (1).
That was a case in which a workman who had been awarded compensation for partial incapacity up to a certain date accepted the compensation so awarded and thereafter preferred an appeal claiming that compensation should have been awarded to him beyond that date and so long as he should be incapacitated.
The Court of Appeal feeling itself bound by its earlier decision in Johnson vs Newton Fire Extinguisher Company (2) had held, somewhat reluctantly, that the workman having accepted money under the award could not challenge its validity by an appeal.
In Johnson 's case (2), it appears to have been held that a workman could not.
accept part of an award and claim to amend another part for that would be an attempt to "approbate and reprobate" the award and this could not be allowed.
The House of Lords in Lissenden 's case (1) held that Johnson 's case (2) had been wrongly decided and that the workman before it was entitled to proceed with the appeal.
The reason for, this view was that acceptance by the workman of what had been found to be due to him does not operate to prevent him from appealing for some further relief.
The case therefore was the same as that before Rankin, C. J., in Hurrybux Deora vs Johurmull Bhotoria (3).
The substance of the decision of the House of Lords was that there was no inconsistency between the appeal and the adoption of the award.
That however cannot be said in the case before us now.
The House of Lords also pointed out that the Court of Appeal had misunderstood the doctrine against " approbating and reprobating".
It was said that that was a doctrine of Scottish law which in England had been held by High authorities to be equivalent to the equitable principle of election.
It was observed that that equitable principle depended for its application on the intention of the executant of an instrument and was, therefore, not applicable to a case like the (1) [1940) A.C. 412.
(2) (3) 372 one the House of Lords had before it.
It was also pointed out that the common law principle of election had no application either for, it depended on the h existence of two rights or remedies, one alone of which could be chosen and in the case of an appeal there were no two rights or remedies.
I do not think the observations of the House of Lords on the doctrine against "approbating and reprobating" affect the question before us.
All the learned Judges who delivered opinions in the case, including Lord Atkin, who expressed himself with some reservation, accepted tile position that a litigant may lose his right of appeal by reason of his conduct after the judgment or award for, by such conduct he may be estopped from appealing or may be considered in equity or at law as having released his right of appeal: see p. 420,429, 430 and 434.
Lissenden 's case (1) does not, therefore, in my view throw any doubt on the principle that a litigant may be precluded from proceeding with an appeal if that would be inconsistent with his previous conduct in regard to the decree challenged by the appeal.
It seems to me that the courts in England have taken the same view of Lissenden 's case (1).
In Baxter vs Eckersley (2) the Court of Appeal expressly approved of the principle laid down in Dexter 's case(3).
In Banque Des Marchands De Moscou vs Kindersley (4) Evershed, M. R., referring to the phrases "approbating and reprobating" and "blowing hot and blowing cold" said at p. 119, "These phrases must be taken to express, first, that the party in question is to be treated as having made an election from which he cannot resile, and, second, that he will not be regarded, at least in a case such as the present, as having so elected unless lie has taken a benefit under or arising out of the course of conduct which he has first pursued and with which his pre sent action is inconsistent".
These two cases, it will be observed, were decided after Lissenden 's case (1).
All these authorities leave no doubt in my mind that the rule preventing inconsistent conduct is firmly (1) (3) (2) (4) 373 established.
I think, for the reasons earlier mentioned, that the rule is properly applicable in the present case and the appellant cannot be allowed to proceed with the appeal.
I wish however to make it clear that the applicability of the rule will depend on the facts of each case; it will depend on whether there has been actual inconsistency.
I have found that there has been adoption in the present case and the prosecution of the appeal will result in the conduct of the appellant becoming inconsistent.
That is, all that I decide.
Before leaving the case, I think I ought to observe that the fact that the appellant had withdrawn the money after he had obtained leave from this Court makes no difference to the applicability of the principle.
It was by such withdrawal that he adopted the decree and thereafter he is precluded from proceeding with the appeal.
There is as much inconsistency in the present case as there would have been, if the appellant had withdrawn the money before he had obtained the leave.
For these reasons I would dismiss the appeal with costs.
By COURT: In accordance with the majority judgment, the preliminary objection is overruled.
The appeal will now be set down for hearing on merits.
Preliminary objection overruled.
Appeal set down for hearing.

dataset_name: IN-Abs

summary:
In a suit instituted by the respondent for the enforcement of the right of pre emption against the appellant, the trial court dismissed the suit but on appeal a decree was passed on March 24, 1952 under which upon the respondent paying the amount found payable as purchase money into court within four months, his title to the property would be deemed to have accrued from the date of the payment into court.
The appellant applied for special leave to appeal to the Supreme Court and leave was granted on May 20, 1953, confining the appeal to the constitutional point raised therein, that the Rewa State Pre emption Act, 1949, was unconstitutional on the ground that it placed an unreasonable restriction upon the right to acquire property enumerated in article 19(1)(f) of the Constitution of India.
In the meantime, the respondent deposited the price of pre emption into court within the time fixed in the decree and on November 14, 1953, the appellant withdrew the money from court.
The appeal to the Supreme Court came on for hearing in due course and the question arose on a preliminary objection raised by the respondent whetber the appellant was precluded from proceeding with the appeal on the ground that by withdrawing the pre emption price he must be deemed to have accepted the decree and that he could not, therefore, be heard to say that the decree was erroneous.
The respondent relied upon the doctrine that a person cannot be allowed to approbate and reprobate.
Held (Sarkar, J., dissenting), that the act of the appellant in withdrawing the pre emption price did not amount to an adoption by him of the decree which he had specifically challenged in his appeal and, in the absence of some statutory provision or of a well recognised principle of equity, he could not be deprived of his statutory right of appeal.
Accordingly, the appellant was not precluded from proceeding ;with the appeal.
The principle that a person who takes benefit under an order cannot repudiate that part of the order which is detrimental to him, on the ground that he cannot be allowed to approbate and reprobate, is applicable only to cases where the 359 benefit conferred by the order is something apart from the merits of the claim involved.
A vendee in a pre emption suit against whom a decree is passed has a right to be paid the pre emption price before the decree becomes effective, but the price cannot be characterised as a benefit under the decree; it is only in the nature of compensation to the vendee for the loss of his property.
Tinkler vs Hilder, ; , VerschuYes Creameries vs Hull and Netherlands Steamship CO., , Lissenden vs C. A. V. Bosch Ltd., , Venkatarayudu vs Chinna, and Sundra Das vs Dhanpat Rai, 1907 P.R. No. 16, considered.
Per Sarkar, J. The decree was one and indivisible and the appellant had no right to the money whatsoever independent of the decree and he could have drawn out the money only on the basis that the decree had been properly passed.
By withdrawing the money he adopted its correctness and cannot now say it is incorrect.
The prosecution of the appeal will result in the conduct of the appellant becoming inconsistent and he cannot, therefore, be allowed to proceed with the appeal.
Case law reviewed.


judgement:
Appeal No. 153 of 1958.
Appeal by special leave from the judgment and order dated January 9, 1956, of the Bombay High Court in Special Civil Application No. 2258 of 1955 J. B. Dadachanji, section N. Andley, and Rameshwar Nath, for the appellant.
section P. Sinha, M. I. Khowaja and A. C. Dave, for respondent No. 1. 1961.
March 27.
The Judgment of the Court was delivered by WANCHOO J.
This appeal by special leave against the judgment of the Bombay High Court raises a question of the interpretation of a. 34 (2 A) of the 569 Bombay Tenancy and Agricultural Lands Act, No. LXVII of 1948 (hereinafter called the Act).
The brief facts necessary for present purposes are these: The appellant is the landlord and the respondent a protected tenant.
The appellant gave notice of termination of tenancy to the respondent on December 31, 1951, under section 34(1) of the Act.
The notice was for one year as required by section 34(1) and the tenancy was to terminate from after March 31, 1953.
The landlord therefore made an application on April 7, 1953, under section 29(2) of the Act for obtaining possession of the land to the Mamlatdar.
In the meantime, an amendment.
was made to the Act by the insertion of sub section
(2 A) to section 34 by the Amending Act No. XXXIII of 1952, which came into force on January 12, 1953.
By this amendment certain further restrictions were placed on the right of the landlord to terminate the tenancy of a protected tenant.
The relevant part of sub section
(2 A) is in these terms: "If the landlord bona fide requires the land for any of the purposes specified in sub section (1) then his right to terminate the tenancy shall be subject to the following conditions, namely (1) The land held by the protected tenant on lease stands in the record of rights in the name of the landlord on the first day of January, 1952, as the superior holder.
(2) If the land held by the landlord is in area equal to the agricultural holding or less, the landlord shall be entitled to terminate the tenancy of the protected tenant, in respect of the entire area of such land.
(3) If the land held by the landlord is more than the agricultural holding in area, the right of the landlord to terminate the tenancy of the protected tenant shall be limited to an area which shall, after such termination, leave with the tenant half the area of the land leased.
(4) The tenancy in respect of the land left with the protected tenant after termination under this section shall not at any time be liable to be terminated on the ground that the landlord bona fide 72 570 requires the said land for any of the purposes specified in sub section (1).
Explanation.
The "agricultural holding" shall mean sixteen acres of jirayat land or four acres of irrigated or paddy or rice land, or lands greater or less in area than the aforesaid areas in the same proportion: The restriction contained in sub section
(2 A) is in addition to the restrictions in sub section
(2), which lays down that the landlord shall have no right to terminate the tenancy of a protected tenant, if the landlord at the date on which the notice is given or at the date on which the notice expires has been cultivating personally other land fifty acres or more in area, provided that if the land which is being cultivated personally is less than fifty acres, the right of the landlord to terminate the tenancy of the protected tenant and to take.
possession of the land leased to him shall be limited to such area as will be sufficient to make the area of the land which he has been cultivating to the extent of fifty acres.
When therefore the landlord applied for possession of the land under section 29(2) of the Act, the tenant objected and claimed the benefit of the third clause of subs.
(2 A), and the question that arose for determination was whether the tenant was entitled to the protection contained in this clause The Mamlatdar to whom the application under section 29 (2) was made allowed the application.
The respondent thereupon appealed but his appeal was dismissed.
He then went in revision to the Revenue Tribunal, which was rejected.
The tenant then filed an application under article 227 of the Constitution before the High Court and contended that the provision of section 34(2 A) should have been taken into consideration by the Revenue Courts in deciding the application of the landlord under section 29(2) and that the revenue courts were wrong in the view they had taken that that sub section did not apply to the present proceedings.
The High Court allowed the application of the tenant, relying on its previous Full Bench decision in Durlabbhai Fakirbhai vs Jhaverbhai Bhikabhai (1), where it was held that as the tenancy had (1) 571 terminated and the right to obtain possession had accrued to the landlord after the coming into force of the Amending Act, the Amending Act applied and therefore the landlord, if he fails to satisfy the further conditions under the Amending Act, would not be entitled to possession.
It further held that the Amending Act would apply to all proceedings where the period of notice had expired after the Amending Act had come into force and that what tile Amending.
Act did was that it imposed a new limitation on the tight of the landlord to obtain possession and if the landlord failed to satisfy the court at the date when the tenancy expired and he became entitled to possession that he was so entitled in law as it then stood, he could not claim relief from the court.
It is the correctness of this view which is being challenged before us in the present appeal.
The contention on behalf of the appellant is that section 34(1) gives a right to the landlord to terminate the tenancy by one year 's notice, which was given in this case in December 1951 before the Amending Act came into force.
Therefore the notice having been given before the Amending Act came into force, the further limitation put on the right of the landlord by subs.
(2 A), introduced by the Amending Act, would not apply to notices given before the Amending Act came into force.
The appellant further contends that the right to terminate a tenancy having arisen when the notice was given, the law to be applied, in case of notices given before the Amending Act came into force, would be the law existing on the date of notice.
We are of opinion that there is no force in this contention.
If we look at the words of sub section
(2 A), it provider, certain conditions subject to which the right to terminate the tenancy shall be exercised.
It may be that section 34(1) requires one year 's notice in order to exercise this right to terminate, but flubs.
(2 A) imposer, restrictions on the landlord 's right to terminate the tenancy and does not speak of any notice at all.
Therefore, when we have to look to the application of sub section
(2 A) it is the date on which 572 the tenancy terminates which determines its application.
The restriction by sub section
(2 A) is on the right to terminate the tenancy and this restriction would come into play on the day on which the landlord 's right to terminate the tenancy is perfected, namely, the day on which the tenancy actually terminates in consequence of the notice given to terminate, it.
A notice under section 34(1) is merely a declaration to the tenant of the intention of the landlord to terminate the tenancy; but it is always open to the landlord not to carry out his intention.
Therefore, for the application of the restriction under sub section
(2 A) on the right of the landlord to terminate the tenancy, the crucial date is not the date of notice but the date on which the right to terminate matures, that, is, the date on which the tenancy stands terminated.
It is on ', $hat date that the court has to enforce the right of the landlord arising out of the notice of termination and therefore the court has to see whether the termination is in accordance with the restrictions imposed by subs.(2 A) on the date the right is to be enforced.
Nor are we impressed by the argument that by applying sub section
(2 A) to notices issued before the Amending Act came into force we would be taking away the vested right of the landlord.
As we have already pointed out, the notice under section 34 (1) is merely a declaration to the tenant of the landlord 's intention to terminate the tenancy and no further proceedings may be taken by the landlord in consequence thereof It is only when the period of notice has expired and the tenancy has terminated that the landlord acquires a vested right to obtain possession of the land.
Therefore, the Amending Act did not affect any vested right of the landlords till the tenancy actually stood terminated after the expiry of the notice.
Consequently, the provisions of the Amending Act which came into force before the tenancy stood terminated by the notice will have to be taken into consideration in determining the right of the landlord in the matter of the termination of tenancy, for the Amending Act put certain fetters on this right of termination.
In the circumstances, we are of opinion 573 that the view taken by the High Court is correct and sub section
(2 A) would apply to all cases where notices might have been given but where the tenancy had not actually terminated before the coming into force of the Amending Act.
This view, which appears to us to be plain enough on the words of sub section
(2 A), is further enforced by another consideration, even if there is any doubt as to the meaning of sub section
(2 A).
That consideration is that the Amending Act is a piece of beneficent legislation meant for the protection of tenants.
Therefore, if there is any doubt about the meaning of sub section
(2 A) that doubt should be resolved in favour of the tenant, for whose benefit the Amending Act was passed.
In this view it is obvious that the legislature could not have intended that the benefit of this beneficent measure should not be extended to tenants in whose cases the tenancy had not yet terminated, though notices had been given, when the further restrictions were being put on the right to terminate the tenancy.
Learned counsel for the appellant has drawn our attention in this connection to Jeebankrishna Chakrabarti vs Abdul Kader Chaudhuri (1).
In that case, the Bengal Tenancy Act was amended and the amendment provided that a tenant would be liable to ejectment on one year 's notice by the landlord.
The earlier law provided for a notice of ejectment but did not provide that the notice should be for one year; it pro vided no period of notice whatsoever and it was sufficient under it to give notice expiring with the end of an agricultural year in order to effect ejectment, howsoever short might be the period of notice.
The question therefore arose whether the amendment applied to notices given under the old law, and the Calcutta High Court held that it did not.
The circumstances under which that decision was given are entirely different from the circumstances of the present case.
In that case the contents of notice were changed; while formerly what was required was a notice without any particular period, the amendment required a notice of one year.
There was no provision in the (1) (1933) I.L.R. LX Cal.
1037 574 Amending Act making notices which were in accordance with the previous law ineffective.
In these circumstances the Calcutta High Court was right in holding that the amendment did not affect notices already given.
No such question however arises in the present case.
The period of notice is the same before and after the amendment in the present case, and what we have to see is whether the crucial date for the application of the new sub section (2 A) is the date of the notice or the date of the termination of the tenancy.
We have already held that that date must be the date of the termination of the tenancy.
In the circumstances the appeal fails and is hereby dismissed with costs.
Appeal dismissed.

summary:
Sub section (2A) of section 34 of the Bombay Tenancy and Agri cultural Lands Act, 1948, as amended by the Amending Act of 1952, applied from the date when the tenancy stood terminated on expiry of the notice of ejectment served on the tenant by the landlord under section 34(1) of the Act and not from the date of the notice.
The Amending Act could not be said to divest the landlord of any vested right since he could have none till the period of notice terminated and the tenancy came to an end.
Consequently, where the landlord gave notice of ejectment under section 34(1) of the Act, but the Amending Act came into force before the period of notice expired the landlord could be entitled to possession only after satisfying the provisions of that subsection.
Durlabbhai Fakirbhai vs jhaverbhai Bhikabhai, (1956) 58 Bom.
L. R. 85, referred to.
Jeebankrishna Chakrabarti vs Abdul Kader Choudhuri, (1933) I.L.R. LX Cal.
1037, distinguished.


judgement:
Civil Appeal No. 191 of 1958.
Appeal by special leave from the judgment and decree dated February 13, 1956, of the High Court of Judicature at Calcutta in First Appeal No. 191 of 1949.
B. Sen and Sadhu Singh, for the appellant.
561 Vidyadhar Makajan and T. M. Sen, for the respondent.
March 27.
The Judgment of the Court was delivered by WANCHOO, J.
This is an appeal by special leave against the judgment of the Calcutta High Court.
The brief facts necessary for present purposes are these: The appellant, section N. Dutt, is the sole proprietor of the business known as "section N. Dutt & Co." and carried on this business under that name and style at Krishnagore in the district of Nadia in 1944.
On May 17, 1944, section N. Dutt & Co. obtained an order from the military authorities for the supply of 10,000 baskets of mangoes to be delivered at Sealdah Railway Station, every day from May 24, 1944, for ten days at the rate of 1,000 baskets, per day.
The military authorities made arrangements with the Bengal and Assam Railway for the supply of 30 covered wagons at Jiaganj Railway Station at the rate of three wagons per day commencing from May 22, 1944 for this purpose, and this was communicated to the appellant on May 19, 1944.
On May 18,1944, the Divisional Superintendent, Sealdah informed the Station Master at Jiaganj that contractor section N. Dutt would book and load 30 wagons of mangoes at Jiaganj at the rate of three wagons per day from May 22, 1944 and directed him to accept the booking and allot wagons for the said purpose.
The appellant thereupon placed indents with the Station Master Jiaganj for.
the supply of the said wagons and began to bring to the Jiaganj Railway Station baskets of mangoes from May 21, 1944.
It appears however that wagons were not supplied regularly, with the result that whatever consignments reached Sealdah were spoilt and were rejected by the military authorities.
On May 30, 1944, the military authorities informed the contractor that the contract had been cancelled on account of the unsatisfactory nature of the supplies.
The result of this was that 5004 further baskets of mangoes could not be despatched, though they had been stacked at the railway station at Jiaganj.
In consequence the mangoes were spoilt 71 562 and had to be thrown away.
The appellant claimed that he had sustained a heavy loss due to the misconduct, gross negligence and carelessness on the part of the Bengal and Assam Railway administration.
Consequently he Submitted a claim for damages for over Rs. 84,000 to the Chief Commercial Manager and the General Manager of the Railway.
Subsequently on November 4, 1944, he gave two notices under section 80 of the Code of Civil Procedure to the Secretary to the Governor General of India in Council representing the Bengal and Assam Railway and followed it up by instituting the suit on July 21, 1945 claiming over Its. 84,000 as damages.
The suit was resisted by the Governor General in Council, now represented by the Union of India.
Among other defenses with which we are not concerned in the present appeal, it was contended on behalf of the Union of India (respondent) that the appellant was not entitled to maintain the suit as the two notices under section 80 of the Code of Civil Procedure were not valid and sufficient, but were defective.
When the matter came to trial before the Subordinate Judge, he hold in favour of the appellant on the question whether there was negligence or misconduct on the part of the Railway administration; but he dismissed the suit on the ground that the two notices under section 80 were defective inasmuch they had been issued by section N. Dutt and Co. and not on behalf of the appellant.
There was then an appeal by section N. Dutt before the High Court.
The High Court agreed with the Subordinate Judge that the notices under section 80 were defective and the suit was rightly dismissed.
Further on the merits, the High Court did not agree with the Subordinate Judge that any misconduct or negligence had been proved which would entitle the appellant to any damages except in the matter of one small consignment.
The appeal therefore failed.
Thereupon the appellant applied for a certificate to appeal to this Court which was refused.
He then came to this Court by petition for special leave which was granted; and that is bow the matter has came up before us.
563 The main point therefore that arises in this appeal is whether the notices in question were in conformity with section 80 of the Code of Civil Procedure; if they were not, the suit would fail on the ground of non compliance with that provision.
Section 80 inter alia lays down that "no suit shall be instituted against the Central Government, until the expiration of two months next after notice in writing has been delivered to, or left at the office of the Secretary to that Government, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered".
The defect in the present case is in regard to the name, it being not disputed that there is no other defect in the notice; and the question that arises is whether the defect in name makes the notices ineffective and therefore the suit becomes not maintainable in view of the bar of section 80.
As far back as 1927, the Privy Council in Bhagchand Dagadusa vs Secretary of State for India in Council (1) had to consider the true application of section 80 and held that section 80 was explicit and mandatory and admitted of no implications or exceptions and had to be strictly complied with and was applicable to all forms of action and all kinds of relief.
In particular, with reference to the name the Privy Council had to consider the matter in Al.
Vellayan Chettiar vs Government of the Province of Madras (2).
In that case the suit was brought by two plaintiffs but the notice was given by only one of them.
The Privy Council hold that this could not be done and observed that " section 80,according to its plain meaning, requires that there, should be identity of the person who issues the.
notice with the person who brings the suit".
Finally, in Government of the Province of Bombay vs Pestonji Ardeshir Wadia the Privy Council had again to consider the scope of section 80.
In that case the notice bad been given by two trustees.
Before however the suit could be brought, one of the trustees (1) (1927) L.R. 54 I.A. 138 (2) (1947) L R. 74 I.A,.
(3) (1949) L. R. 76 I. A. 85.
564 died and was replaced by two other trustees.
The suit was brought by the three trustees, only one of whom had given the notice while two had not.
The Privy Council again reiterated that the provisions of a. 80 were imperative and must be strictly complied with.
It went on to say that "there is no provision in the Code enabling the trustees to sue in the name of the trust, as members of a firm may sue in the name of the firm.
In the case of a trust, the plaintiffs are bound to be the trustees and not the trust and where no notice has been served under section 80, specifying the names and addresses of all the trustees, the provisions of the section have not been complied with and the suit is incompetent.
" Learned counsel for the appellant, however, relies on Dhian Singh Sobha Singh and another vs The Union of India (1), where the following observations occur: "The Privy Council no doubt laid down in BhagChand Dogadusa vs Secretary of State (L.R. 54 I.A. 338) that the terms of this section should be strictly complied with.
That does not however mean that the terms of the notice should be scrutinized in a pedantic manner or in a manner completely divorced from common sense.
As was stated by Pollock C. B. in Jones vs Nicholls, ; , 150), 'We must import a little common sense into notices of this kind '.
Beaumont C. J., also observed in Chandulal Vedilal vs Government of Bombay (I.L.R. One must construe section 80 with some regard to common sense and to the object with which it appears to have been passed.
" The next case to which reference was made is The State of Madras vs C. P. Agencies (2 ).
The question in that case was whether the cause of action had been stated as required by section 80, and this Court held that the cause of action had been stated in the notice.
This Court also observed that it was not necessary in that case to consider the two decisions of the Privy Council (to which reference has already been made by us) requiring the identity of the person who issues a notice with the person who brings the suit.
(1) ; , 795.
(2) A.I.R. (1960) S C. 1309.
565 It is urged that these observations show that the strictness which 'the Privy Council emphasised in these cases has not been accepted by this Court.
It must however be remembered that the defect with which this Court was dealing in these cases was in the matter of cause of action and relief, and this Court pointed out that it was necessary to use a little common sense in such circumstances.
Where the matter (for example) concerns the relief or the cause of action, it may be necessary to use common sense to find out whether section 80 has been complied with.
But ,Where it is a question of the name of the plaintiff, there is in our opinion little scope for the use of common sense, for either the name of the person suing is there in the, notice or it is not.
No amount of common sense will put the name of the plaintiff there, if it is not there.
Let us therefore examine the notices and the plaint in this case to see whether the suit is by the same person who gave the notices, for it cannot be gain said that the identity of the person who issues the notice with the person who brings the suit must be there, before it can be said that section 80 has been complied with.
Now the relevant part of the two notices was in these terms: "Under instructions from my client Messrs. section N. Dutt and Co. of Krishnagar, I beg to give you notice that my said client will bring a suit for damages in the court of the Subordinate Judge of Nadia at Krishnagar against the B & A Railway Administration".
In the plaint, the description of the plaintiff was in these terms: "Surrendra Nath Dutta sole proprietor of a business carried on under the name and style of section N. Dutt & Co. of Krishnagar, P. section Krishnagar, District Nadia".
It will be immediately obvious that the notices were in the name of Messrs. section N. Dutt and Co., while the suit was filed by section N. Dutt claiming to be the sole proprietor of Messrs. section N. Dutt and Co. It is urged on behalf of the appellant that the reason why the 566 suit was filed in the name of section N. Dutt as sole proprietor of Messrs. section N. Dutt and Co. was that no suit could have been filed in the name of Messrs. section N. Dutt and Co., as that was not a firm; that was merely the name and style in which an individual, namely section N. Dutt, was carrying on the business.
The question therefore that immediately arises is whether section N. Dutt who filed the suit was the person who gave the notices and the answer is obvious that it is not so.
It may be that section N. Dutt is the sole proprietor of Messrs. section N. Dutt and Co. and is carrying on business in that name and style; but that does not mean that these notices were by section N. Dutt.
Any one reading these notices would not necessarily come to the conclusion that Messrs. section N. Dutt and Co. was merely the name and style in which an individual was carrying on business.
The Prima facie impression from reading the notices would be that Messrs. section N. Datt and Co. was some kind of partnership firm and notices were being given in the name of that partnership firm.
It cannot therefore be said on a comparison of the notices in this case with the plaint that there is identity of the person who issued the notices with the person who brought the suit.
Besides if Messrs. section N. Dutt and Co., not being a partnership firm, could not file a suit in that name and style on behalf of its members, we cannot see how section N. Dutt and Co. could give a valid and legal notice in that name and style on behalf of an individual, section N. Dutt.
As was pointed out by the Privy Council in Peslon Ardeshir Wadias case (1), the case of members of a firm stood on a different footing, for the members of a firm might sue in the name of the firm; but in the present case Messrs. section N. Dutt and Co. is not a firm; it is merely the name and style in which an individual (namely, section N. Dutt) is carrying on business and though the individual may in certain circumstances be sued in name and style, he would have no right to sue in that none.
There ,fore, where an individual carries on business in some name and style the notice has to ' be given by the individual in his own name, for the suit can only be filed in the name, (1) (1949) L.R 76 I.A. 85.
567 of the individual.
The present suit is analogous to the case of trustees where the suit cannot be filed in the name of the trust; it (,,an only be filed in the name of the trustees and the notice therefore has also to be given in the name of all the trustees who have to file a suit.
Therefore comparing the notices given in this suit with the plaint, and remembering that Messrs. section N. Dutt and Co. is not a partnership firm but merely a name and style in which an individual trades, the conclusion is inescapable that the person giving the notices is not the same as the person suing.
It was urged on behalf of the appellant that the Railway Administration knew the position that Messrs. section N. Dutt and Co. was merely the name and style in which an individual (namely, section N. Dutt) was trading.
But even this in our opinion is not correct as a fact, for, as pointed out by the High Court, there are documents on the record which show that section N. Dutt gave himself out as a partner of Messrs. section N. Dutt and Co., thus suggesting that section N. Dutt and Co. was a firm.
That was the reason why a plea was raised on behalf of the Union of India that the suit was barred under section 69 of the Partnership Act as the firm was not a registered firm.
In this connection learned counsel for the appellant referred us to certain cases in which in similar cir cumstances the notice was considered to be valid under section 80.
These cases are: Kamta Prasad vs Union of India (1) and Secretary of State vs Sagarmal Mar. wari (2).
In view of what we have said above, we cannot agree with the view taken in these oases and must hold that they were wrongly decided.
In this view of the matter, there is no force in this appeal and it is hereby dismissed with costs.
Appeal dismissed.

summary:
The appellant was the sole proprietor of a business styled section N. Dutt SE Co. He gave a notice under section 80 of the Code of Civil Procedure to the respondent in the name of "section N. Dutt & Co.".
After the requisite period he filed a suit against the respondent describing the plaintiff as: "Surendra Nath Dutt sole proprietor of a business carried on under the name and style of section N. Datt & Co." The suit was dismissed on the ground that the notice was defective as it was issued by section N. Dutt & Co. and not the plaintiff.
The appellant contended that the notice was valid as section N. Dtitt carried on business and that no suit could have been filed in the name of section N. Dutt & Co. as it was not a firm.
Held, that the notice was defective and that the suit had been rightly dismissed.
The person who issued the notice was not the same as the person who filed the suit.
Since section N. Dutt & Co. could not file the suit in that name it could not give a valid and legal notice in that name.
A valid notice could have been given only in the name of section N. Dutt.
A defect in the notice as to the name of the plaintiff has to be viewed strictly.
Bhagchand Dagadusa vs Secretary of State for India in Council, (1927) L.R. 54 I.A. 338, Al.
Velayan Chettiar vs Government the Province Madras, (1947)223 and Government of the Province of Bombay vs Pestonji L.R. Wadia, (1949) L.R. 76 I.A. 85, referred to.
Dhian Singh Subha Singh vs TheUnion of India, ; and The State of Madras vs C. P. Agencies, A.I.R. , distinguished.
Kamta Prasad vs Union of India, and Secretary of State vs Sagarmal Marwari, A.I.R. 1941 Pat.
517, disapproved.