judgement:
Appeal No. 255 of 1961.
Appeal from the judgment and order dated March 21, 1960, of the Mysore High Court in Writ Petition No. 147 of 1958.
B. J. Kolah, J. B. DadachanJi, O. C. Mathur and Ravinder Narain, for the appellants.
779 C. K. Daphtary, Solicitor General of India, B. R. L. Iyengar and P. D. Menon, for respondents.
August.
KAPUR, J This is an appeal against the judgment and order of the High Court of Mysore in Writ Petition No. 147 of 1958 dismissing the appellant 's petition under articles 226 and 227 of the Constitution for quashing the order of assessment for the period of assessment 1955 56 i.e, from April 1, 1955, to March 31, 1956.
In this appeal because of the Validating Act (VII of 1956) the appellants did not challenge their liability for the period April 1, 1955, to September 6, 1955.
The facts necessary for the decision of this appeal are these : Appellant No. 1 The Cement Marketing Co. Ltd are the Sales Managers of the second appellant The Associated Cement Co. Ltd. appointed under an agreement dated April 21, 1954.
The High Court has described the first appellant to be the Distributors of the second apppellant.
The second appellant is a manufacturer of cement and at the material time it had over a dozen factories in different parts of India, none of which was in the State of Mysore.
The head office of first appellant is at Bombay and it had then a branch office at Bangalore in the State of Mysore.
The first appellant was registered as a dealer under the Mysore Sales Tax Act 1948, hereinafter called the "Mysore Act".
At all material times cement was and still is a controlled article.
Whether the sale was to a Government Department i.e. to the Director General of Supplies & Disposal, Government of India, New Delhi, or to a person authorised by the said Officer or to the ' public it was effected on authorisations given to the buyers by appropriate Government authorities and 780 produced by them in the office of the first appellant.
Both in regard to purchases by the public and the Government the Modus operandi was more or less identical.
It was this Every one wishing to buy cement had to get an authorisation in a standard form which authorised the first appellant to sell cement in quantities mentioned, therein and the cement had to be supplied from the factory therein mentioned.
That document was in the following form which actually ralates to a sale to a Government contractor.
"Government of India Ministrary of Commerce & Industry.
Office of the Regional Honorary Cement Adviser 4/12 Race Course Road, Coimbatore.
Central Quota.
Dated 8 10 1955.
Authorisation No. RA/CT/28/CMI/1 7 2 CQ.
(CENTELEC) Period IV/55 The Cement Marketing, Name of Suppliers Co. of India P. Box No.613, Sugar Company Bulding Bangalore 2.
You are authorised to sell cement in quantity mentioned below under this authorisation.
The sale will be a direct deal between yourself and 781 the purchaser.
The Government undertakes no responsibility of any nature whatsoever: Name and Name of the Quan Name of Rly.
Re address of the person factory or cement is to in whose companybe booked.
favour required to authorisation supply is issued.
cement.
1 2 3 4 5 M/s. G. section Mudhukkarai300 Bangalore Duggal & Co Shababadtons Ltd Engineers & Contractors, Jalhalli P.O. Bangalore.
No. J/1 17/115 date 29 9 55 from the above indentors For manufacture of the tiles for the Bharat Electronics Ltd. Supply recommended by the Commander Works Engineers(B.E.I.P.), Jalahalli.
Full details of the purpose for which and the place at which cement will actually be consumed; Priority, Defence work.
C.C. Ramanath, Reg, Hon.
Cement Advisor (Coimbatore) Copy to 1.
The indentor.
The Dy.
Development Officer, Govt.
of India, Ministry of Commerce & Industry, Development Wing,(Chemicals 1, Mineral Industries) Shahjehan Road, Now Delhi.
The Controller of Civil Supplies in My sore Bangalore for information".
782 This authorisation was subject to the following conditions: It was to be utilised within 15 days; the cement released could be used only for the purpose for which it was given; the authorisation was not transferable; the issuing authority could, if necessary, revoke the authorisation at any time and even the orders booked under the authorisation could be cancelled.
The purchaser or the indentor had then to place an order with the first appellant as Sales Managers of the second appellant stating the requirement, where the goods were to be sent and how they were to be sent.
The seller entered into a contract with the first appellant.
This contract is in a standard form and gives conditions of sale.
Thereupon the first appellant instructed its Bombay office to despatch the cement in accordance with the instructions of the buyer and the authorisation.
In this letter they had to mention the number of the authorisation and the person who had issued it and also to whom the goods were to be sent and how and certain other details which are not necessary for the purposes of this appeal were also to be given.
Each instruction indicates that it was issued for and on behalf of appellant No. 2 by appellant No. 1 as its Sales Managers.
A copy of the letter of instruction was sent to the factory from where the goods were to be despatched and the particulars of the authorisation had to be mentioned therein.
Thereafter the first appellant sent an advice to 783 the purchaser enclosing therewith the Railway Receipt for the goods and this advice also mentioned the goods were being sent.
Both the contract of sale and the advice above mentioned stated that the goods were being despatched at the buyer 's risk from the time the delivery was made by the factory to the carriers and the railway receipt was obtained for the goods.
In the present case all the goods were sent, as indeed they had to be sent, against the authorisations from the various factories belonging to the second appellant which at the relevant time were all situate outside the State of Mysore and were received in the State of Mysore by the various purchasers.
The position of the first appellant is as was accepted by the Sales tax Officer in his order dated March 31, 1958, that of Sales Managers of the second appellant but in regard to the nature of the transactions the Sales tax Officer found: " Though the property in the goods pass to the dealers and consumers outside the State immediately the goods are handed over to the carriers outside the state and railway receipt is taken out since the goods have actually been delivered In Mysore State as a direct result of such sale for purposes of consumption in the State, sale is deemed to have taken place in Mysore State".
and again he said: "Thus the sales of cement manufactured by A.C.C. Factories situated outside Mysore .State effected by the dealers M/s. Cement Marketing Company of India Ltd. Bangalore, to dealers and customers in Mysore State amounts to intrastate sales and therefore liable to Mysore Sales Tax Act 48".
784 In its judgment the High Court took into consideration the fact that the first appellant had a branch office at Bangalore within the State of Mysore and that the public placed their orders with the first appellant for supplies of cement against permits granted to them; that the first appellant, who after accepting the offer for the supplies of cement, collected the price from the intending purchasers and then directed one of the factories of the second appellant to supply cement to the purchasers and actual delivery to the purchaser was within the State) of Mysore and therefore the contention that cement was loaded outside the State of Mysore and despatched to the purchaser did not not convert sales into inter State sales but were intra state sales.
It appears that the true nature of the transaction was not correctly considered by the High Court, The modus operandi above mentioned shows that before an intending purchaser could obtain cement he had to get what is called an authorisation from a Government authority which nominated the factory from which the intending purchaser had to get his supplies of cement.
That authorisation with an order had to be given to the first appellant; and after a contract in the standard form was entered into the first appellant sent the order to the factory named in the authorisation and that factory then supplied the requisite goods to the purchaser.
The factory from where the cement was to be supplied was not in the hands or at the option of the first appellant, but was entirely a matter for the Government authority to decide, so that the cement which was supplied from a particular factory was supplied not at the choice of the first appellant but pursuant to the authorisation.
It was contended that the sales which took place in the present case in which the movement of 785 goods was from one State to another as a result of a covenant or incident of the contract of sale fell within article 286(2) of the Constitution and therefore the imposition 'of Sales tax on such sales was unconstitutional.
The Article applicable at the relevant time i.e., before its amendment was as follows: 286 (1) "No law of a State shall impose or authorise the imposition of a tax on the sale or purchase of goods where such sale or purchase takes place.
(a) outside the State; or (b) in the course of the import of the goods into or export of the goods out of, the territory of India.
Explanation . . . . .
(2) Except in so far as Parliament may by law otherwise provide, no law of a State shall impose, or authorise the imposition of, a tax on the sale or purchase of any goods where such sale or purchase takes place in the course of inter State or commerce: Provided. . . . . . " The Article had since been repealed and another substituted in its place by the Constitution (Sixth Amendment) Act but the sales in question were prior to the amendment.
In the present case the contract itself involved the movement of goods from the factory to the purchaser i. e. across the broder from one State to another because the factories were outside the State of Mysore and therefore transactions were 786 clearly transactions of sale of goods in the course of inter State trade or commerce.
Taking the nature of the transaction and preliminaries which are necessary for the sale or purchase of cement it cannot be said that the sale itself did not occasion the movement of goods from one State to another.
The essential features of the contracts proved in the present case are analogous to those in M/s. Mohan Lai Hargovind vs The State of Madhya Pradesh.(1) In that case the assessees were a firm carrying on business of making and selling birds in Madhya Pradesh.
In the course of their business they imported finished tobacco from dealers in Bombay State, rolled it into biris and exported the biris to various other States.
Both the exporters of tobacco from Bombay State who supplied the assessees and the assessees were registered dealers under the C. P. & Berar Sales Tax Act., 1947.
It was held that the asessees imported the finished tobacco into Madhya Pradesh from persons who were carrying on in the State of Bombay business of processing tobacco and selling the goods and there was, as a result of these transactions movement of goods from the State of Bombay to the State of Madhya Pradesh and therefore the transactions involved movement of goods across the State border and they were not liable to be taxed by virtue of article 286 (2) of the Constitution.
In The State of Pravancore Cochin & Others vs The Bombay Co Ltd. (1) which was a case under article 286 (1) (b) i. e. sale and purchase in the course of export trade, Patanjali Sastri, C. J., observed: "A sale by export thus involves a series of integrated activities commencing from the agreement of sale with a foreign buyer and ending with the delivery of the goods to a common carrier for transport out of the (1) (2) (1952) section C. R. III2.
787 country by land or sea.
Such a sale cannot be dissociated from the export without which it cannot be effectuated, and the sale and resultant export from parts of a single transactions.
At p. 1120 the learned Chief Justice again observed: "We accordingly hold that whatever else may or may not fall within article 286 (1) sales and purchases which themselves occasion the export or the import of the goods, as the case may be, out of or into the territory of India come within the exemption and that is enough to dispose of these appeals".
Thus a sale to fall within article 286 (1) (b) has to be a sale which occasions the export.
Again in the, State of Travancore Cochin & Other8 vs Shammugha Vilas Cashew Nut Factory & Other8 (1) the words "in the course of" were interpreted to mean a sale taking place not only during the activities directed to the end of exportation of the goods out of the contury but also as a part of or connected with such activities.
At p. 63 the learned Chief Justice explained the words "integrated activities" as follows: "The phrase "integrated activities" was used in the previous decision to denote that "such a sale" (i. e. a sale which occasions the export) "cannot be dissociated from the export without which it cannot be affectuated, and the sale and the resultant export form parts of a single transaction '.
It is in that sense that the two activities the sale and the export were said to be integrated".
In Endu puri Narasiham & Son vs The State of Orissa, it was held in the case of sales covered (1) ; (2) ; 788 by article 286 (1) (b) that only Bale or purchase 'of goods which occasions the export or import of the goods out of or into the territory of India were exempt from the imposition of tax on the sale or purchase of goods and in regard to prohibition against imposition of tax on inter State sales the test, it was said, was that in order that a sale or purchase might be inter State it is essential that there must be transport of goods from one State to another under the contract of sale or purchase.
The following observatins from the Bengal Immunity Co. Ltd. vs The State of Bihar (1) were quoted with approval in support of the position: "A sale could be said to be in the course of inter State trade only if two conditions concur: (1) A sale of goods, and (2) a transport of those goods from one State to another under the contract of sale.
Unless both these conditions are satisfied, there can be no sale in the course of inter State trade".
Thus the tests which have been laid down to bring a sale within inter State sales are that the transaction must involve movement of goods across the border (Mohanlal Hargovind 's case (2) ); transactions are inter State in which as a direct result of such sales the goods are actually delivered for consumption in another State; M/s Ram Narain It Ssns V. Assistant Commissioner of Sales tax (3) a contract of sale must involve transport of goods from one State to another under the contract of sale; Bengal Immunity Co ' case (1).
in the case of sales in the course of export or import the test laid down was a series of integrated activitiesm commencing from an agreement of sale and ending with the delivery of goods to a common (1) , 784 5 (2) (1965) 2 S.G R. 509.
(3) ; , 504.
789 carrier for export by land or by sea ; The Bombay Co. Ltd, case (1).
"In the course of" was explained to mean a sale taking place not only during the activities directed to the end of the exportation of the goods out of the country but also as part of or connected with such activities and "integrated activities" was explained in similar langauage.
This Court again accepted these tests in Endupuri Narasim ham 's case (2).
In a. 3 of the (Act 74 of 1956), the legislature has accepted the principal governing inter State sales as laid down in mohan Hargovind 's case (3).
The principles for determining when a sale or purchase of goods takes place in the course of inter state sale or commerce outside the state are : "S.3 A sale or purchase of goods shall be deemed to take place in the course of inter State trade or commerce if the sale or pur chase (a) occasions the movement of goods from one State to another ; or (b) is effected by a transfer of documents of title to the goods during their movement from one State to another".
In Tata Iron & Steel Co. Ltd, Bombay vs S.R. Sarkar & Another (4) Shah, J., in explaining what sales are covered by el.
(a) of s.3 above said : "Cl.
(a) of a. 3 covers sales, other than those included in Cl.
(b), in which the movement of goods from one state to another is the result of a convenant or incident of the contract of sale.
and property in the goods passes in either State .
" As stated above under the contracts of sale in the present case there was transport of goods from (1) (3) (1955) 2 S.G.R. 509.
(2) ; (4) ; ,391, 790 outside the State of Mysore into the State of Mysore and the transactions themselves involved movement of goods across the border.
Thus if the goods moved under the contract of sale, it cannot be said that they were intrastate sales.
It was not the volition of the first appellant to supply to the purchaser the goods from any of the factories of the second appellant.
The factories were nominated by the Government by authorisations which formed the basis of the contract between the buyer and the seller.
Applying these tests to the facts of the present case we are of the opinion that the sales were in the nature of inter State sales and were exempt from Sales tax.
In these circumstances the contracts of sale in the present case have been erroneously considered to be intrastate sales.
The decision in Rohtas Industrieg Ltd. vs The State of Bihar (1) to which reference was made by the respondent does not apply to the facts of the present case because the agreement between the first appellant and the second appellant is different from that which existed between Rohtas Industries Ltd. and the Cement Marketing Co of India in the case above cited.
(in an examination of the agreement between those two companies this court held that the rotation.
ship which existed between the two was of seller and buyer and not of principal agent.
In the present case the agreement is quite different.
In the first clause of the agreement between the two appellants and the Patimia Cement Co. dated April 21, 1954, the first appellant was appointed the sole and exclusive Sales Manager of the second appellant and as such the first appellant was entitled to enter into contracts of sale, receive payment of the same and do all seta and things necessary for the effective management in connection with the contracts of sale entered into on behalf of the principals.
The sale price and the terms and conditions of sale were to be (1) (1961) 12 S.T.C. 615.
791 determined by the principals.
The Sales Manager was to keep its administrative and technical staff at such places in India as was determined by the principals.
All the establishment charges and other expenses of the Sales Managers were for and on behalf of the principals and were to be defrayed by the principals in proportion to their annual sales.
At the end of every mouth the Sales Managers were to submit to the principals accounts showing sales con tracts by it on behalf of each one of the principals.
At the end of each financial year ending July 31 the Sales Managers had to make a. proper account of all their operations during the year and after submitting them for confirmation to the principals had to pay the price of annual sales realizations to each of the principals to whom they happened to relate.
Clause to provided that subject to instructions of the principals the Sales Managers were to make all necessary arrangements to secure speedy and economicial transport of cement.
These terms are quite different from those in the case of Rohtas Industries Ltd. and therefore that decision has no application to the facts of the present case.
In the result, the imposition of the Sales tax on the appellant for the year of assessment except for the period April 1, 1955, to September 6, 1955, was illegal and was not leviable for that period.
The appeal is therefore allowed to that extent and the petition of the appellants succeeds but it will not effect the tax paid for the period abovementioned.
In view of the partial success of appellants they will be entitled to half costs of the appeal.
Appeal allowed in part.
(1) (1961) 12 S.T.C. 615.

summary:
The second appellant was a manufacturer of cement and at the material time it had over a dozen factories in different parts of India none of which was in the State of Mysore.
The first appellant was its sales manager and had its head office in Bombay with a branch office at Bangalore in the State of Mysore ' Cement was a controlled article and every one wishing to buy cement.
had to get an authorisation from the appropriate Government authorities in a standard form which authorised the first appellant to sell cement in quantities mentioned therein and the cement had to be supplied from the factory therein mentioned.
The purchaser had to place an order with the first appellant.
stating the requirement, where the goods were to be sent and how they were to be sent.
In the present case, all the goods were sent against the authorisations from the various factories belonging to the second appellant which were all outside the State of Mysore and were received in the State of Mysore by the various 778 purchasers.
The Sales Tax Officer by his order dated March 31, 1958, took the view that though the property in the goods passed to the dealers and consumers outside the State, of Mysore, since the goods had actually been delivered in the State of Mysore as a direct result of such sales for purposes of consumption in the State, the sales must be deemed to have taken place in that State and, therefore, the sales effected by the first appellant as the sales manager of the second appellant, to customers in Mysore State amounted to intrastate sales and liable to tax under provisions of the Mysore Sales Tax Act, 1948.
The High Court held that as the actual delivery to the purchasers was within the State of Mysore, the cement loaded outside the State and despatched to the purchaser did not convert the sales into inter State sales but were intrastate Wes.
Held, that the sales which took place in the present case in which the movement of goods was from one State to another as a result of a convenant or incident of the contract of sale, were in the course of inter State trade or commerce and fell within Art ' 286(2) of the Constitution of India, Consequently, the imposition of sales tax on such sales was unconstitutional.
M/S. Mohan Lai Hargobind vs The State of Madhya Pradesh, ; , followed.
Endapuri Narasimhan & son vs The State of Orissa; , , Bengal Immunity Co. Ltd. vs The State of Bihar, M/s. Ram Narain & Sons vs Assistant Commissioner of Sales Tax, ; and Tata Iron and Steel Co. Ltd. Bombay vs section R Sarkar, [1961] 1 S.C.R. 379, relied on.
Rohtas Industries Ltd. vs The State of Bihar, [1961] 12 S.T.C. 615, distinguished.


judgement:
Appeals Nos.
139, 147, 214 and 510 of 1961.
Appeals by special leave from the judgment and decrees dated October 8, 21.
1959, and March 4,1959, of the Punjab High Court in R. section A. No. 473 of 1959, L.P.A. No. 332 of 1959, R.S.A. Nos. 921 of 1959 and 508 of 1953.
J. P. Goyal, for the appellant (in C. A. No. 139 of 1962).
861 Nanak Chand, for respondent No. 1.
(in C. A. No. 139 of 1962).
Hardyal Hardy and N. N. Keswani, for the appellants (in C. A. No. 147 of 1961).
Dayal Swarup Mehra and K. R. Choudhuri, for respondent No. 1 (in C. A. No. 147 of 1961).
Hardev Singh and Y. Kumar, for appellants Nos. 2 to 5 'in C. A, No. 214 of 1961).
K. L. Gosain and M. L. Aggrawala, for respondents Nos. 1 to 4 (in C. A. No. 214 of 1961).
P. section Safeer, for the appellant (in C. A. No. 510 of 1961).
Achhru Ram and B. D. Jain, for the respondent (in C. A. No. 510 of 1961).
August 30.
The Judgment of the Court was delivered by AYYANGAR, J.
These four appeals which have been filed pursuant to special leave granted by this Court principally raise for consideration the constitutional validity of section 15 of the Punjab Preemption Act (Act 1 of 1913), hereinafter referred to as the Act.
The property involved in these appeals are agricultural lands and in each one of them decrees have been passed in favour of the preemptors whose claim to preempt was based on different sub clauses of section 15, and the vendees who are the appellants in the several appeals challenge the constitutional validity of the law under which the suits have been decreed.
One of the appeals Civil Appeal No. 214 of 1961 however could be decided without considering the constitutional point regarding the validity 862 of section 15 of the Act and it would therefore be convenient to dispose it of first.
The facts giving rise to the appeal are briefly as follows The 5th and 6th respondents before us owned certain agricultural land in village Dugri which they sold to the appellants by a deed dated April 25, 1957.
Res pondents 1 to 4 instituted a suit against the appellants to which the vendors respondents 5 & 6 were also impleaded as co defendants.
The right of preemption was based on the plaintiffs being the nearest collaterals of the vendors and heirs according to the rule of succession.
There were certain points of dispute on the facts but these are not now material and it is sufficient to state that the suit was decreed by the Subordinate Judge on December 10, 1958.
This judgment in favour of respondents 1 to 4 was affirmed by the District Judge on appeal and on further appeal, by the High Court.
It is from this judgment and decree of the High Court that the vendees who are the appellants before us have brought the matter to this Court.
The appellants were five in number.
They fell into two groups constituted respectively by the 1st and 2nd appellants who are brothers and by appellants 3, 4 and 5.
While the appeal was pending in this Court the 1 at appellant Mehar Singh died on May 18, 1960, leaving a widow and five children four daughters and a son, as his heirs.
No application was, however, made to bring on record the legal representatives of the deceased 1st appellant Mehar Singh and learned Counsel appearing for the other four appellants informed the office that the legal representatives were not being brought on record and that he would proceed with the appeal on behalf of the four surviving appellants.
At the hearing of the appeal learned Counsel for the respondents submitted that the appeal ought 863 to be dismissed as incompetent since the same had abated on the death of the first appellant without his legal representatives being brought on record.
Learned Counsel for the appellants, however, contended that whatever might be the position as regards the share to which Mehar Singh was entitled in the property purchased, the interest of the deceased was distinct and separate from that of the others and that the abatement could be in any event only partial and would not affect the continuance of the appeal by the surviving appellants at least as regards their share in the property.
As the deed of sale under which the appellants purchased the property was not among the printed records of this Court, the appeal was adjourned in order to enable learned Counsel for the appellants to produce.
it and substantiate his contention that the interest of the deceased Mehar Singh wag distinct and separate.
An English translation of the deed of sale has now been produced before us and a perusal of it indicates that the submission made on behalf of the appellants is not sustainable.
The consideration for the sale is a sum of Rs.22,750/and the conveyance recites that Mehar Singh and the second appellant bad paid one half amounting to Rs. 11,375/ while the other three appellants had paid the other half It is therefore not a case of a sale of any separated item of property in favour of the deceased appellant but of one entire set of properties to be enjoyed by two sets of vendees in equal shares.
It is clear law that there can be no partial pre emption because preemption is the substitution of the pre emptor in place of the vender and if the decree in favour of the preemptors in respect of the share of the deceased Mehar Singh has become final it is manifest that there would be two conflicting decrees if the appeal should be allowed and a decree for 864 preemption insofar as appellants 2 to 5 are concerned is interfered with.
Where a decree is a joint one and a part of the decree has become final by reason of abatement, the entire appeal must be held to be abated.
It is not necessary to cite authority for so obvious a position but we might refer to the decision of this court in Jhanda Singh vs Gurmukh Singh (deceased) (1).
The result is that the appeal fails as having abated and is dismissed with costs.
Civil appeal No. 139 of 1961 The material provision of section 15 of the Act relevant for the consideration of the constitutional point raised in this appeal is section 15(a), but as the validity of other clauses of the same section are challenged in the other appeals, we consider it convenient to set out the other relevant ones also: "15.
Subject to the provisions of section 14 the right of preemption in respect of agricultural land and village immoveable property shall vest (a) where the sale is by a sole owner or occupancy tenant or, in the case of land or property jointly owned or held, is by all the co sharers jointly, in the persons in order of succession, who but for such sale would be entitled, on the death of the vendor or vendors, to inherit the land or property sold: (b) where the sale is of a share out of joint land or property, and is not made by all the co sharers jointly,firstly, in the lineal, descendants of the vendor in order of succession; (1) Civil Appeal No. 344 of 1956, decided on April IO, 1962.
865 secondly, in the co sharers, if any, who are agnates, in order of succession; (c) If no person having a right of pre emption under clause (a) or clause (b) seeks to exercise it : . . . . . . . thirdly, in the owners of the estate; The following few facts are necessary to be stated to appreciate the manner in which the question arises.
One Ram Nath sold certain agricultural land of an area of about 65 bighas in village Durjanpur in District Sangrur of Punjab to the second respondent Pooran by a deed of sale dated December 12, 1957.
The vendee Pooransold the land he had purchased, in favour of Ram Sarup appellant before us.
Subsequently Munshi the first respondent brought a suit Suit 297 of 1958 in the Court of the Subordinate Judge First Class at Narwana stating that he was the son of vendor Ram Nath and claiming preemption under is.
15 of the Act.
There were rival claims for preempting the same property and another suit was filed in regard to it which was tried along with the suit by Munshi, but this failed and is no longer of relevance.
The main contest to the suit by Munshi was based upon a denial of the fact that be was the son of Ram Nath.
This issue was found in favour of the respondent by the Subordinate Judge who decreed the suit, which judgment was confirmed successively by the District Judge on appeal and thereafter by the High Court on second appeal.
It was therefore common ground that if section 15(a) was constitutionally valid, the sale by Ram Nath was subject to the right of Munshi, to preempt and that consequently his suit was properly decreed.
866 The constitutional validity of section 15 was not contested before the High Court because of the decision of a Full Bench of that Court which had upheld its validity.
It was only at the stage of an application for a review of the Judgment of the High Court that this point was raised but the learned Judges rejected it and it was on the ground of this constitutional point that special leave was granted and that is the only point for consideration in this appeal.
Before adverting to the points urged by learned Counsel as regards the constitutional validity of section 15 it is necessary to notice an argument urged on behalf of the appellant for sustaining a contention that even apart from the unconstitutionality of the provision the right of pre emption conferred by section 15(a) has ceased to be enforceable.
The argument under this head was rested on the opening words of section 15 and certain other provisions to which we shall immediately advert.
It would be noticed that a. 15 opens with the words "Subject to the provisions of section 14 the right of preemption in respect of agricultural land. . shall vest".
Section 14 runs in these terms: "14.
No person other than a person who was at the date of sale a member of an agricultural tribe in the same group of agricultural tribes as the vendor shall have a right of pre emption in respect of agricultural land sold by a member of an agricultural tribe.
" The expression "agricultural tribe" referred to in section 14 is defined in section 3(4) of the Act thus: "member of an agricultural tribe and group of agricultural tribes shall have the meanings assigned to them respectively under the Punjab Alienation of Land Act, 1900.
" 867 Next it would be seen that a. 15 employs the words "in respect of agricultural land".
"Agricultural land" is defined in section 3(1) of the Act thus: " 'agricultural land ' shall mean land as defined in the Punjab Alienation of Land Act, 1900 (as amended by Act 1 of 1907), but shall not include the rights of a mortgagee whether usufructuary or not, in such land,; Section 6 of the Act enacts; "6.
A right of preemption shall exist in respect of agricultural land and village immoveable property, but every such right shall be subject to all the provisions and limitations in this Act contained".
, and section 23 enacts: "No decree shall be granted in a suit for pre emption in respect of the sale of agricultural land until the plaintiff has satisfied the Court (a) that the sale in respect of which pre emption is claimed is riot in contravention of the Punjab Alienation of Land Act, 1900: and (b) that he is not debarred by tile provisions of section 14 of this Act from exercising the right of preemption." Now, by the Adaptation of Laws (Third Amendment) Order, 1951, the Punjab Alienation of Land Act, 1900, has been repealed and the argument urged by the learned Counsel for the appellant was that by reason of the repeal of that Act the right of preemption granted by section 15(a) has become unavailable.
The argument was somewhat on these lines.
It is under section 6 that the right of preemption is recognised and granted, though section 15 868 sets out the circumstances in which it arises.
Under section 6 the right is (a) in respect of "agricultural land ", and (b) the right conferred by the Act is subject to every provision and limitation contained in it.
In the Act, as originally framed before the amendment effected by the Adaptation of Laws (Third Amendment) Order, 1951 i. e., before the repeal of the Punjab Alienation of Land Act, 1900, there were two principal limitations on the right of preemption in respect of "agricultural land:" (1) it applied only to such land as was defined in the Punjab Alienation of Land Act, and (2) by virtue of section 14 there was a limitation of the group of persons who might claim the right of preemption if a sale took place by "a member of an agricultural tribe", and the expression "member of an agricultural tribe" was as defined by the Punjab Alienation of Land Act.
Section 15 therefore was subject to the limitations of section 14 and to the definition of 'agricultural land ' and 'agricultural tribe ' and this read in conjunction with the positive provision in s.23 has become wholly inapplicable and unworkable after the repeal of the Punjab Alienation of Land Act of 1900.
The problem here raised is dependent upon the construction which the several provisions which we have set out earlier would bear after the repeal of the Punjab Alienation of Land Act, 1900.
One thing is clear and that is that the authority which effected the repeal of the Punjab Alienation of Land Act did not consider that Punjab Act 1 of 1913 had itself to be repealed.
We shall now consider the effect of the repeal of the Punjab Alienation of Land Act with reference to each of the provisions: Definition of "agricultural land ' under 8.3(1): Where the provisions of an Act are incorporated by reference in a later Act the repeal of the earlier Act 869 has, in general, no effect upon the construction or effect of the Act in which its provisions have been incorporated.
The effect of incorporation is stated by Brett, L. J., in Clarke vs Bradlaugh: (1) "Where a statute is incorporated, by reference, into a second statute the repeal of the first statute by a third does not affect the second.
" In the circumstances, therefore, the repeal of the Punjab Alienation of Land Act of 1900 has no effect on the continued operation of the Preemption Act and the expression 'agricultural land ' in the later Act has to be read as if the definition in the Alienation of Land Act had been bodily transposed into it.
Section 2 of the Punjab Alienation of Land Act, 1900, as amended by Act 1 of 1907 defined `Land ' as follows: "The expression 'land ' means land which is not occupied as the site of any building in a town or village and is occupied or let for agricultural purposes or for purposes sub servient to agricultural or for pasture, and includes. . . . . " It is not in dispute that the land concerned in the claim for preemption made in the appeal satisfies this definition.
We shall next take up the effect of the repeal of the Punjab Alienation of Land Act, 1900, on s.14 of the Act and of the definition contained in a. 3 (4) thereof of the expression "member of an agricultural tribe" and the effect of these on the right of preemption conferred by section 15(a).
With the repeal of the Punjab Alienation of Land Act, 1900, it is manifest that s.14 would lose all (1) 870 significance, but this does not help, in any manner, the contentions urged by learned Counsel for the appellant.
It would be seen that section 14 is restrictive, in that in the case of the alienations by persons referred to in that section the right of preemption is conferred upon a limited group.
With the repeal of the Punjab Alienation of Land Act, 1900, the restriction imposed by section 14 as regards the availability of the right of preemption to particular agricultural tribes would disappear.
In other words, the effect of the removal of the limitation of section 14 would only be that the opening words of section 15 cease to operate.
In such circumstances section 14 would lose all significance because the post Constitution law does not recognise membership of tribes as conferring any special rights and consequently the elimination of section 14 would leave a. 15 without the limitation originally imposed upon it.
In the same manner the restriction imposed upon the passing of decrees by section 23 could also not operate after the repeal of the Punjab Alienation of Land Act but that would leave the Court with an unfettered power to grant decrees under the provisions of the Act, i. e., without the limitations imposed by a. 23.
We are therefore clearly of the opinion that neither the repeal of the Punjab Alienation of Land Act, 1900, nor the consequential removal of the fetters imposed by sections 14 and 23 have the effect of rendering the substantive provision contained in section 15 not available to those who satisfy its terms.
In these circumstances we have necessarily to consider the main question raised by learned Counsel for the appellant, viz., that the rights conferred upon the pre emptor is an unreasonable restriction on the right of vendors "to hold and dispose of property)" and of prospective vendees to acquire property" guaranteed to citizens of India by article 19(1) (f) of the Constitution.
871 Before proceeding to consider the question about the constitutional validity of a. 15(a) of the Act, it is necessary to mention that section 15 of the Act has been the subject of very substantial amendments effected by the Punjab Preemption (Amendment) Act of 1960 (Act 10 of 1960).
This however makes no difference to the present appeal since the relevant portion of section 15 as amended reads : "15.
(1) The right of preemption in respect of agricultural land and village immoveable property shall vest (a) where the sale is by a sole owner FIRST, in the son or daughter or son 's son or daughter 's son of the vendor;" In view of this feature, it is needless to consider in this appeal as to whether the amending Act is retrospective and if so, the degree of retrospectivity a question which falls for decision only in Civil Appeal No. 510 of 1961.
It is common ground that the right of preemption granted by the statute is a restriction on the right "to hold and dispose of property" on the part of the vendor the right guaranteed by Art.19(1)(f) of the Constitution.
The question, however, is whether the restriction imposed is reasonable and in the interest of the general public within article 19(5) of the Constitution.
The general question about the impact of the right conferred by article 19(1)(f) on the right of preemption has been dealt with exhaustively in the judgment of this Court in Bhau Ram vs Baij Nath (1) and it is (1) (1952) Supp.
3 S.C.R. 724. 872 unnecessary to cover the ground again.
The proper approach to the question would be as to whether the grounds which are stated to underlie the provision are reasonable judged in the light of present day standards and needs of the community and are in the interests of the general public.
The question about the reasonableness of this restriction contained in 3.
15 of the Act was considered by a Full Bench of the High Court of Punjab in Uttam Singh vs Kartar Singh (1) and as the grounds stated there have been referred to with approval in subsequent decisions of the Punjab High Court and were relied on before us by learned Counsel for the respondent we might as well extract the passage in full : "It is plain that the objects underlying as. 15 and 16 of the Act may be briefly enumerated as follows : (1) to preserve the integrity of the village and the village community; (2) to avoid fragmentation of holdings; (3) to implement the agnatic theory of the law of succession; (4) to reduce the chances of litigation and friction and to promote public order and domestic_comfort; and (5) to promote private and public decency and convenience.
" The reference here in the above passage to "the promotion of public order and domestic comfort" and to "Private and public decency and convenience" obviously have relevance to urban immoveable property dealt with in section 16.
The (1) A. 1.
R. 1954 Punjab 55.
873 grounds on which the reasonableness of the right of pre emption granted by law in regard to agricultural property dealt with in section 15 would therefore appear to be the first four of the above.
Among them much stress could not be laid on the avoidance of chances of litigation and friction because the existence of the right of preemption could also give rise to litigation which otherwise might not exist.
Nor can the ground of avoidance of fragmentation of holdings afford assistance to sustain the claim of a son to preempt in the event of a sale by a sole owner father, for that criterion has primary relevance to the right of preemption enjoyed by co sharers and the like.
The grounds for upholding section 15(a) as reasonable and in the interest of the general public therefore finally resolve themselves into two: (1) to preserve the integrity of the village and the village community; and (2) to implement the agnatic rule of succession.
The objective underlying the first ground is prima facie reasonable and calculated to further the interest of the general public.
It was however pointed out by learned Counsel for the appellant that with the large scale migration of population into Punjab consequent on the problems created by partition there has been a disintegration of the village community and that in the circumstances, what is at the present date imperatively required is not the keeping out of strangers from rural areas but rather for their being absorbed into the village community and that in that context the existence of a law which prevented such absorption could not be characterized as being either reasonable or in the interests of the general public.
Though we see some force in this submission of learned 874 Counsel we are unable to accept it as a final and conclusive answer to the argument against the reasonableness of the provision for we find that in the schemes for rehabilitation of the refugees the principle of the integrity of the village community and the need to maintain some degree of cohesion as regards the population in each village has been observed and, indeed, forms the basis of the methods by which different groups of refugees were settled in various parts of the Punjab.
It has thus been possible to reconcile somewhat the needs of the refugees being settled in India, with the preservation of the integrity of the village community.
Even if this ground cannot serve to sustain the constitutionality of the provision, we consider that the other ground viz., that the next in succession should have the chance of retaining the property in the family, would suffice to render the restriction reasonable and in the interest of the general public within article 19(5).
In this connection we might refer to the reasoning in the decision of the Rajasthan High Court in Siremal vs Kantilal(1) where the learned Judges struck down as unconstitutional a provision in a. 3 of the Marwar Preemption Act which granted a right of preemption "to persons related within three degrees to the vendor of the house or building plot provided that the nearer in degree shall have priority over one more remote" as an unreasonable restriction on the right conferred by article 19(1)(f) of the Constitution.
The basis of this ruling was that the impugned enactment conferred the right of preemption on all relations within three degrees and did not restrict it to the members of the family.
Under s.15 of the Act, particularly after the amendment effected by Act 10 of 1960, the right of preemption is confined to the members of the family (1) A.I.R. 1954 Rajastban 195.
875 of the vendor, i. e., those who would have succeeded to the property in the absence of any alienation.
The relevant portion of section 15 (1) after amendment reads: "15.
(1) The right of preemption in respect of agricultural land and village immoveable property shall vest (a) where the sale is by a sole owner,FIRST, in the son or daughter or son 's son or daughter 's son of the vendor; SECONDLY, in the brother or brother 's son of the vendor; THIRDLY, in the father 's brother or father 's brother 's son of the vendor; FOURTHLY,. . . " No doubt, the son and the other members of the family would not have been entitled to a present interest in the property alienated and consequently would not have a right to prevent the alienation (in which event, however, it is needless to add that a right to preempt wan wholly unnecessary as a means of preserving the property), but they would have a legitimate expectation of succeeding to the property an expectation founded on and promoted by the consciousness of the community.
If the social consciousness did engender such feelings, and taking into account the very strong sentimental value that is attached to the continued possession of family property in the Punjab, it could not be said that the restriction on the right of free alienation imposed by section 15(1)(a) limited as it is to small class of near relations of the vendor is either unreasonable or not in the interest of the general public.
The result is the appeal fails and is dismissed with costs.
876 Civil Appeal No. 147 of 1961.
The facts giving rise to this appeal are briefly as follows : The appellant Dalip Singh purchased under a deed dated June 1,, 1957, agricultural land measuring 98 bighas and 10 biswas situated in village Bailerkha in district Sangrur under a registered deed of sale.
The vendors were Nihal Singh, Wazir Singh and Gurdial Singh who are respondents 2 to 4 before us.
Sunder Singh brother of respondents 2 & 3 and uncle of the 4th respondent filed a suit in the Court of the Sub Judge, Narwana, for preemption basing his claim under section 15(a) of the Act.
It is manifest that even under the amended section 15 a person in the position of the first respondent has a right to preempt.
It would be seen that under section 15(a), as it originally stood, the right of pre emption is conferred upon persons who would succeed as heir to the vendor in the event of his death.
In other words, preemption in such cases is the grant of an option to the heirs to retain property in the family.
As we have already pointed out in dealing with the claim by a vendor 's son in Appeal 139 of 1961, we consider that the provisions contained in section 15(a), as it originally stood, as well as in the modified form in which it has been reenacted do not transgress the limits of reasonableness required by Art.19(5) of the Constitution.
As the constitutionality of s.15(a) was the only ground which was or could be canvassed before us in this appeal and as we are rejecting it follows that the appeal fails.
It is accordingly dismissed with costs.
Civil Appeal No. 510 of 1961 What now remains to be dealt with is Civil Appeal 510 of 1961.
This appeal arises out of a suit filed by the first respondent as plaintiff for preemption of certain agricultural land in village 877 Fatehabad in Amritsar district.
The sale which gave rise to the suit was under a deed dated December 29, 1949, in favour of the appellate Singh.
The claim to preempt was based on section 15 (c) "thirdly" of the Punjab Preemption Act, 1913, which has already been set out.
The expression " estate" which is used in cl.
(c) "thirdly" is not defined by the Act but by reason of its section 3 (6) the definition in section 3 of the Punjab Land Revenue Act, 1887, is attracted to it.
Turning now to section 3 of the Punjab Land Revenue Act (Act XVII of 1887), it defines an 'estate ' as meaning, inter alia, "any area for which a separate record of rights has been made.
" It was the case of the plaintiff first respondent before us that he owned land in the "estate" whereas the under the appellant before us did not own any land there.
The defendant while not disputing that the plaintiff owned land in the village or the correctness of the allegation that the land was in an "estate", sought to prove that he too owned land in the same village and "estate" but in this he failed.
As the case of the plaintiff was directly covered by the terms of the statute his suit was decreed by the trial Court on November 8, 1951, and an appeal and second appeal there from were also dismissed.
It was from this judgment of the High Court that this appeal has been brought and the principal point on which leave was granted related to the constitutionality of the provision in section 15 of the Pre emption Act upon which the respondent based his claim to preempt.
In regard to the point about the Considerational validity of section 15 (c) "thirdly" we consider that the case is clearly covered by the judgment of this Court in Bhau Ram vs Baij Nath (1) where the Court upheld the validity of the right of preemption granted under Ch, XIV of the Berar Land Revenue Code (Appeal 430 of 1958).
In the (1) [1962] Supp 3 section C.R 724. 878 case of an estate within section 3 of the Punjab Land Revenue Act of 1887, section 61 of the Act enacts: "61 (1) In the case of every estate, the entire estate and the landowner or, if there are more than one, the landowners jointly and severally, shall be liable for the land revenue for the time being assessed on the estate : Provided that.
(a) the State Government may by notification declare that in any estate a holding or its owner shall not be liable for any part of the land revenue for the time being assessed on the estate except that part which is payable in respect of the holding; and (b). . . . (2) A notification under proviso (a) to sub section (1) may have reference to any single estate or to any class of estates or estates generally in any local area.
" Thus it will be seen that an "estate" is an unit of assessment and there is a joint and several liability on persons owning land within the "estate ', to pay the entire assessment due on the estate.
Thus though it is not really the case of a co sharer, it is somewhat akin to that of a co sharer because of the joint liability for payment of land revenue.
We therefore consider that the restriction on the right of a vendor in such a case is a reasonable one and not repugnant to article 19 of the Constitution.
As learned Counsel for the appellant desired to have time to ascertain whether there had been a notification of the Local Government such as is referred to in a. 61 of the Punjab Land Revenue 879 Code, we adjourned the case to enable him to produce the notification, if there was one, and we were informed that there was none.
If therefore the matters had stood as under the law as enacted in section 15 of the Act the appeal would have to be dismissed.
The Punjab Legislature, however, effected substantial amendments to the Punjab Preemption Act of 1913 by Punjab Act 10 of 1960 and it is the impact of this later legislation on the rights of the parties to this appeal that now requires to be considered.
Punjab Act 10 of 1960 received the assent of the Governor on February 2, 1960, and was published in the Punjab Government Gazette two days later.
By section 4 of the Amending Act section 15 of the parent Act was repealed and in its place was substituted a new provision which omitted to confer a right of Preemption in the case of persons "owning land in the estate )I as the original section 15 (c) "thirdly" had done.
Retrospective effect was giving to the provisions contained in the Amending Act by the insertion of a new section 31 in the parent Act Which read: "31.
No court shall pass a decree in a suit for preemption whether instituted before or after the commencement of the Punjab Pre emption (Amendment) Act, 1959, which is inconsistent with the provisions of the said Act".
It may be mentioned that the figure 1959 in section 31 is an obvious mistake for 1960 which is the correct year of the Amending Act.
The question now for consideration is whether by reason of this amendment in the law, the respondent is entitled to the benefit of the decree which he obtained under the previously existing enactment.
That section 31 is plainly retrospective and that it affects 880 rights to preemption which had accrued before the coming into force of the Amending Act is not in controversy for section 31, in plain terms, makes the substantive provisions of the enactment applicable to suits whether instituted "before or after" the commencement of the Amending Act.
It was urged before us by learned Counsel for the appellant that in view of the plain language of section 31 this Court should apply the substantive law enacted by the Punjab Legislature in the amended section 15 of the Preemption Act and set aside the decree for preemption passed in favour of the first respondent.
In this connection learned Counsel referred us to the judgment of the Federal Court in Lachmeshwar Prasad Shukul vs Keshwar Lal Chaudhuri(1) as to the course which this Court would adopt in giving effect to Amending legislation interfering with the. rights of parties in pending appeals, and to the decision of a Division Bench of the Punjab High Court in Ram Lal vs Raja Ram(2) where the learned Judges, on a construction of section 31 of the Act set aside a decree for pre emption passed in favour of the respondent before the Court, giving effect to the provisions contained in Punjab Act 10 of 1960.
Mr. Achhru Ram, learned Counsel for the respondent, however, submitted that the language employed in the new section 31 was not sufficient to permit a decree passed in favour of a pre emptor being set aside by an appellate Court merely because the ground on which preemption had been claimed and decreed was not one that was included within the amended provisions.
He placed reliance on the principle that besides the rule of construction that retrospective operation is not, in the absence of express words therefore, to be given to a statute so as to impair existing rights except as regards matters of procedure, there was a further (1) (2) 881 well recognised rule that a statute was not to be construed to have a greater retrospective operation than its language rendered strictly necessary.
The argument was that though by the use, in section 31, of the words "Suit for preemption instituted before or after the commencement of the Act" a certain amount of retrospective effect was intended, still the retrospectivity was but partial in its operation and that the words used did not permit the setting aside by an appellate Court of a decree which was validly passed under the substantive law applicable to the facts at the date of the original decree,.
In this connection he placed considerable reliance on the employment of the words "no decree shall be passed" in the opening words of section 31 as indicative of a ban only on the passing of a decree an event which be contended would occur, firstly when a trial Court passed a decree and secondly when the trial Court having refused a decree, the appellate Court is called upon to pass a decree which the trial Court should properly have done and in no other Contingency.
On this reasoning the contention was urged that where a trial Court had passed a decree and that decree gave effect to the law as it stood up to the date of that decree, the words of section 31 did not enable an appellate Court to set aside that decree on the ground of a change in the substantive law effected by the Amending Act.
Through we agree that there is a presumption against the retrospective operation of a statute and also the related principle that a statute will not be construed to have a greater retrospective operation than its language renders necessary, we consider that in the present case the language used in section 31 is plain and comprehensive so as to require an appellate court to give effect, to the substantive provisions of the Amending Act whether the appeal before it is one against a decree granting preemption or one refusing that relief.
The decision of the 882 Federal Court in Lachmeshwar Prasad vs Keshwar Lal (1) on which learned Counsel for the appellant relied fully covers this case.
The question there raised related to the duty of the Federal Court when an amending Act enacted after the decree appealed from was passed adversely interfered with the rights of the respondent before the Court.
The learned Judges held.
that the provisions of the Act were clearly retrospective and should be applied to the decree which was the subject matter of appeal before it and the appeal was accordingly allowed and remitted to the High Court for effect being given to the new legislation.
Mr. Achhru Ram, however, sought to suggest that the language of section 7 of the Bihar Moneylenders Act, 1939 which was the subject of construction before the Federal Court was differently worded and was of wider amplitude.
That section ran: "7.
Notwithstanding anything to the contrary contained in any other law or in anything having the force of law or in any agreement, no Court shall, in any suit brought by a money lender before or after the commencement of this Act in respect of a loan advanced before or after the commencement of this Act or in any appeal or proceedings in revision arising out of such suit, pass a decree for an amount of interest for the period preceding the institution of the suit, which, together with any amount already realised as interest through the Court or otherwise, is greater than the amount of loan advanced, or, if the loan is based on a document, the amount of loan mentioned in, or evidenced by such document." In particular learned counsel stressed the fact that unlike in section 31 of the Act now under consideration, in the Bihar Act there were specific references to (1) 883 "appeals" and "revision" and that this made a difference.
But in our opinion this makes no difference since it is admitted that section 31 even according to the respondent has to be given effect to, not merely by a trial Court but also by an appellate Court, only learned Counsel could urge that the appellate Court could give effect to the Amending Act only in cases where the trial Court has refused a decree for pre emption.
No distinction can, therefore, be rested on the ground that the Bihar Act specifically referred to ",appeals" and "revisions" seeing that the relevant operative words in section 7 of the Bihar Act were "no Court shall pass a decree" words which occur in section 31 of the Act as well.
On the other hand the reasoning of the learned Judges of the Court which was based on the nature of an appeal under the Indian procedural law as a rehearing and a court of appeal being not a court of error merely, and the view expressed that when an appeal was filed the finality which attached to the decree of the trial court disappeared, all these lines of reasoning point to the fact that even when an appellate court dismisses an appeal it also is passing a decree.
In this connection we consider that the reasoning and the conclusion of the Division Bench of the Punjab High Court in Ram Lal vs Raja Ram (1) correctly sets out the principles underlying the scope of an appeal as well as the proper construction of section 31 of the Amending Act.
It was not suggested that if the provisions of section 15 as amended by Punjab Act 10 of '1960 had to be applied the decree in favour of the respondent could be sustained.
The result therefore is that the appeal has to be allowed, the decree in favour of the respondent set aside and the respondent 's suit for preemption dismissed.
In view, however, of (1) 884 the circumstances that the appellant has succeeded only by virtue of subsequent legislation, we direct that there shall be no order as to costs in the appeal.
Appeals Nos.
139, 147 and 214 dismissed.
Appeal No. 510 Allowed.

dataset_name: IN-Abs

summary:
The owner of certain agricultural land in Punjab sold it to the second respondent by a deed dated December 12, 1957 The son of the vendor claimed that he had a right of Pre. emption and instituted a suit against the appellant who pur chased the land from the first respondent, and relied upon the provisions in s.15 (a) of the Punjab Pre emption Act, 1913.
The appellant pleaded (1) that the right of Pre emption conferred by section 15(a) of the Punjab Pre emption Act, 1913, had ceased to be enforceable on the repeal of the Punjab Alienation of Land Act, 1900, by the Adaptation of Laws (Third Amend.
ment ) Order, 1951, in view of sections 3(a),3(4), 6,14,23 of the Pre emption Act of 1913, and (2) that, in any case, s 15(a) of the Punjab Pre emption Act, 1913, was repugnant to article 19(1)(f) of the Constitution of India.
Held, that (1) the repeal of the Punjab Alienation of Land Act, 1900, 'had no effect on the continued operation of the Punjab Pre emption Act, 1913, and that the expression ,,agricultural land" in the later Act had to be read as if the definition of the Alienation of Land Act had been bodily transposed into it.
Clark vs Bradlaugh,(1881)8 Q.B.D. 63, relied on.
859 (2) the effect of the repeal of the Punjab Alienation of Land Act, 1900, was that the restrictions imposed by sections 14 and 23 of the Punjab Pre emption Act, 1913, would disappear, leaving the court with an unfettered power to grant decrees to those who satisfied the terms of s.15.
(3) the restriction on the right of free alienation imposed by section 15(a)being intended (i) to preserve the integrity of the village and the village community, and (ii) to implement the agnatic rule of succession, are reasonable and culculated to further the interest of the general public.
The provisions contained in section 15(a) as it originally stood as well as in the modified form after the amendment effected by Act 10 of 1960 do not transgress the limits of reasonableness required by article 19(5) of the Constitution and are valid, Bhau Ram vs Baij Nath, (1962) Supp. 3 section C.R. 734 and Uttam Singh vs Kartar Singh & Others, A.I.R. 1954 Punjab 55, relied on.
In Civil Appeal No. 510 of 1961, the sale which give rise to the suit was under a deed dated December 29, 1949, in favour of the appellant and the first respondent 's claim to pre empt was based on section 15(c)"thirdly" of the Punjab Preemption Act, 1913.
The suit was decreed by the trial court on November 8,1951 and when the matter was under appeal in which the question of the constitutional validity of s.15(c) "thirdly" was raised, the Act was amended by Punjab Act 10 of 1960, by which, inter alia, (1)s.15 of the original Act was repealed and in its place was substituted a new provision which omitted to confer a right of pre emption in the case of persons "owning land in the estate" as the original section 15(c) thirdly" had done, and(2) retrospective effect was given to the provisions contained in the Amending Act by the insertion of a new section 31, which provided that "no court shall pass a decree in a suit for pre emption whether instituted before or after the commencement of the Punjab Pre emption (Amendment) Act, 1960, which is inconsistent with the provisions of the said Act.
" Held, (1) the restriction on the right of a vendor in cases arising out of s.19 (c)"thirdly" of the Punjab Pre emption Act 1913, was a reasonable one and that the provisions in the section were not repugnant to article 19(1)(f) of the Constitution.
Bhau Ram vs Baij Nath & Others.
(1962) Supp.
3 S.C.R. 724 followed.
860 (2) the language used in s, 31 was comprehensive enough so as to require an appellate court to give effect to the substantive provisions of the amending Act whether the appeal before it was one against a decree granting pre emption or one refusing that relief.
Consequently) in view of section 31, the decree for preemption passed by the trial court could not be sustained.
Lachmeshwar Prasad Shukul vs Keshwar Lal Chaudhuri, , relied on.
Ram Lal vs Raja Ram, approved.
In Civil Appeal No. 214 of 1961, the properties in respect of which respondents 1 to 4 bad instituted a suit claiming a right of preemption had been sold to the appellants by a deed dated April 25, 1957, for a consideration of Rs. 22,750, out of which appellants 1 and 2 had paid one half amounting to Rs. 11,375, while the other three appellants had paid the other half.
The recitals showed that it was not a case of sale of separated items of the properties in favour of the two sets of the vendees but that they were to be enjoyed by them in equal shares.
A decree for pre emption was passed against the vendees who took the matter on appeal.
While the appeal was pending the first appellant died but no application was made to bring on record his legal representatives.
that the appeal must be dismissed as having abated on the death of the first appellant without legal representatives being brought on record.
Where a decree is a joint one and a part of the decree has become final by reason of abatement, the entire appeal must be held to be abated.


judgement:
Appeal No. 328 of 1962.
Appeal by special leave from the judgment and order dated September 4, 1961, of the Allahabad High Court in Civil Misc.
writ No. 3469 of 1960.
K. L. Misra, Advocate General for the State of U. P., C. B. Agarwala, K. section Hajela and C. P. Lal, for the appellants.
section P. Sinha and M. 1.
Khowaja, for respondent No. 1. 1962.
August 27.
The Judgement of the Court was delivered by GAJENDRAGADKAR, J.
This appeal by special leave arises out of a Writ Petition filed by the respondent Bagleshwar Prasad against the Board of High School and Intermediate Education, U. P., Allahabad, and its Secretary, appellants 1 & 2, and another.
By his petition, the respondent challenged the validity of the order passed by appellant No. 1 on December 5, 1960, cancelling the respondent 's result at the High School Examination held in 1960.
It appears that the respondent appeared for the said examination from the Nehru Intermediate College Centre, Bindki.
He was declared to have passed the said examination in the 11 Division with distinction in article Thereafter, he joined Intermediate first year class in the Kulbaskar Ashram Agriculture College at Allahabad.
On the 3rd September, 1960, he received a letter from the Principal, Adarsh Higher Secondary School, Kora Jahanabad, from where he had appeared for the High School examination, calling upon him to appear before a Sub Committee to answer the charge of having used unfair means in English, 769 Mathematics and Hindi papers.
Accordingly, he appeared before the said Sub Committee.
A charge was given to him and his explanation was obtained on the said charge.
This charge was based on the fact that in Hindi 3rd paper set at the said examination, the respondent had given wrong answers to Question No. 4 in precisely the same firm in which the said answers had been given by a candidate whose Roll No. was 91733.
The respondont 's Roll No. was 91731.
The respondent was shown the identical wrong answers to the said Question which were found in the two papers, and he was asked to explaining about the said identity of the wrong answers.
He admitted that the wrong answers appeared to be identical, but he denied that he had used any unfair means.
The Sub Committee however, was not satisfied with the explanation and reported that both the respondent and the candidate whose Roll No. was 94733 had used unfair means.
As a result of the report made by the Sub Committee, the first appellant passed an order cancelling the results of both the candidates.
Both the said candidates disputed the validity of the said order, in the Allahabad High Court.
The petition filed by the candidate whose Roll No. was 94733 was dismissed, but that of the respondent was allowed, and the impugned order passed by appellant No 1 cancelling, the result of the respondent in the High School examination for 1960, has been set aside.
It is against this order that the appellants have come to this Court by special leave.
From the petition field by the the High Court (W. P. No. 3469 of 1960) it appears that he challenged the validity of the impugned order on several grounds.
The principal contentions raised by the petitioner against the competence and the authority of appellant No.1 and against the regularity and fairness of the enquiry held, srose for decision before the High Court in the companion W. P. No. 3196 of 1960 also.
The High 770 Court rejected the said contentions of law in that W. P. and for the reasons recorded in the judgment in that petition, the said contentions were rejected even in the present petition.
Thus, the challenge to the validity of the order made on points of law was not sustained.
The High Court then proceeded to examine the narrow ground of attack against the validity of the order which was made on the basis that the impugned order was not supported by any evidence at all.
It appears from the judgment of the High Court that the High court was inclined to accept this argument and it has set aside the order on the ground that it is not supported by any evidence.
The correctness of this finding is seriously disputed before us by the learned Advocate General who appears for the appellants.
It is common ground that the proceed in taken against the respondent in respect of the unfair means alleged to have been adopted by him at the examination, are in the nature of quasi judicial proceedings, and as such, in a proper case, orders passed as a result of the said proceedings would be liable to be challenged under Art.226 of the Constitution.
It is also common ground that the High Court would be justified in quashing the impugned order if it is satisfied that the said order is not based on any evidence at all.
An order passed by a Tribunal holding a quasi judicial enquiry which is not supported by any evidence, is an order which is erroneous on the face of it and as such, is liable to be quashed by the High Court in exercise of its high prerogative jurisdiction to issue a writ under article 226.
In the present case, the High Court has found that the conclusion of the enquiry Committee that the respondent had copied either from the answer book of the candidate bearing Roll No 947 3 or 771 from a common source, was not supported by any evidence In coming to this conclusion, the High Court has assumed that the charge against the respondent was that he had copied from the candidate bearing Roll No. 94733.
Having made this assumption, the High Court has observed that there was no charge against the respondent that he connived in the act of copying by the other candidate ,from his answer book, and it has added that there is no evidence in proof of such connivance.
The High Court has also stated that no evidence had been shown to justify the allegations that any outsider had helped the candidate, including the respondent.
That, in brief, is the genesis of the final conclusion of the High Court.
It appears that the High Court was in error in assuming that the only charge against the respondent was that he had copied from the paper of the candidate bearing Roll No. 94733 and this error is basically responsible for the other observations made by the High Court.
The translation of the charge as it has been printed in the record before us, no doubt, seems to support the assumption made by the High Court in regard to the nature of the charge ' But the charge was framed in Hindi and it is common ground before us that the Hindi charge has not been properly translated from the record when it seems to show that what was alleged against the respondent was only that he had copied out from candidate bearing Roll No. 94733.
The charge, in terms, was that having regard to the identity of the mistaken answers, the apprehension was that there had been copying, and that is very different from saying that the only charge was that the respondent had copied from the other candidate.
This position is made very clear when we consider the explanation given by the respondent.
In his explanation, the respondent bad 772 stated that he had not copied out from the answer , book of any candidate, nor had he allowed anyone to copy out from his answer book, so far as he could.
He admitted that the mistaken answers in the two papers were identical and he pleaded 'that he could not say any thing as to why this happened.
He was also asked whether he had got any help from outside and he gave an answer in the negative.
It would thus be seen that at the enquiry, the charge against the respondent was, either that he copied from candidate bearing Roll No. 94733, or that he connived at the said candidate copying from his answer book, or that both of them had copied from a common source.
In either case, 'it would amount to the adoption, of unfair means.
Therefore, in our opinion, the High Court was in error in assuming that the charge was very narrow and did not include the two other alternatives on which the adoption of unfair means was sought to be established.
There is another circumstance which is relevant and significant and that has been ignored by the High Court in dealing with this petition: It appears that at the examination held at Bindki Centre, unfair means were adopted on a very large scale by a large number of students and the examination appears to have been conducted in an atmosphere which was not at all congenial to the enforcement of the discipline which has to be observed in conducting examinations.
It appears that there are rivalries and party politics in the Municipal Board of Bindki that runs the institution at which this examination was held, and there are rivalries and party politics even amongst the members of the staff.
The members of the Municipal Board and other influential people of the locality bring undue pressure on the Principal and the Invigilators to help their wards or the wards 773 of their friends and relatives in the Board 's Examination.
As a result of this unhealthy atmosphere, the Centre at Bindki for High School examination had been abolished for some years, but on account of public pressure it was re started in 1960, and the result was very unfortunate.
It also appears that on the day of English paper, while students were answering the paper in Room No. 3, an answer paper by some outsider was dropped into the room 15 minutes before the time to answer questions was over. ' This paper was thrown in room No. 3 from room No. 18.
It was a typed paper giving answers to all the Questions.
The Assistant teacher, Khajuha, who was one of the Invigilators, complained that the Parcha was typed in the office of the Superintendent of the Centre, but this allegation was denied.
Indeed, from the reports made by the invigilators and the findings made by the Enquiry Committee, it appears that the Invigilators themselves were so much frightened by the prevailing rowdyism and by pressure from influential people that they found themselves powerless to maintain discipline in the examination hall.
It is, therefore, not surprising that some invigilators could not prevent copying and in fact, six of them had to be warned to be careful in future.
The report of the enquiry committee also shows that the complaints which they were to investigate referred to copying on a large scale in several papers besides Hindi, and it is after examining all the complaints in the light of the evidence available to them that the Committee made its final report; and in that report, it held that the respondent and candidate bearing Roll No. 94733 were guilty of having used unfair means.
774 In dealing with the question as to whether the Committee was justified in coming to this conclusion against the respondent, it would not be reasonable to exclude from consideration the circumstances under which the whole enquiry came to be hold and the general background of the prevailing disturbed and riotous atmosphere in the Examination Hall during the days that the High School Examination was held at the Centre in 1960.
Unfortunately, the High Court has ignored this background altogether.
Before the High Court, a statement was filed showing the seating arrangement in Room No. 10 where the respondent was sitting for writing his answers.
It appears that he was No. 3 in the 3rd row, whereas the other candidate with Roll No. 94733 was No. 4 in the second row.
The High Court was very much impressed by the fact that the respondent could not have looked back and copied from the answer.
book of the other candidate, and the High Court did not think that there was any evidence to show that the other candidate could have copied from the respondents paper with his connivance.
We have looked at the incorrect answers ourselves and we are not prepared to hold that the identical incorrect answers were given by the two candidates either by accident or by coincidence.
Some of the incorrect answers, and, particularly, the manner in which they have been given, clearly suggest that they were the result of either one candidate copying from the other, or both candidates copying from a common source.
The significance of this fact has been completely missed by the High Court.
The question before the Enquiry Committee had to be decided by it in the light of the nature of the incorrect answers themselves, and that is what the Enquiry Committee has done.
It would, we think 775 be inappropriate in such a case to require direct evidence to show that the respondent could have looked back and copied from the answer written by the other candidate who was sitting behind him.
There was still the alternative possibility that the candidate sitting behind may have copied from the respondent with his connivance.
It is also not unlikely that the two candidates may have talked to each other.
The atmosphere prevailing in the Examination Hall does not rule out this possibility.
These are all matters which the Enquiry Committee had to consider, and the fact.
that the Enquiry Committee did not write an elaborate report, does not mean that it did not consider all the relevant facts before it came to the conclusion that the respondent had used unfair ' means.
In dealing with petitions of this type, it is necessary to bear in mind that educational institutions like the Universities or appellant No. 1 set up Enquiry Committees to deal with the problem posed by the adoption of unfair means by candidates, and normally it is within the jurisdiction of such domestic Tribunals to decide all relevant questions in the light of the evidence adduced before them.
In the matter of the adoption of unfair means, direct evidence may sometimes be available, but cases may arise where direct evidence is not available and the question will have to be considered in the light of probabilities and circumstantial evidence.
This problem which educational institutions have to face from time to time is a serious problem and unless there is justification to do so, courts should be slow to interfere with the decisions of domestic Tribunals appointed by educational bodies like the Universities.
In dealing with the validity of the impugned orders passed by Universities under article 226, the High Court is not sitting in appeal over the decision in question; its jurisdiction is limited and though, 776 it is true that if the impugned order is not supported by any evidence, at all, the High Court would be justified to quash that order.
But the conclusion that the impugned order is not supported by any evidence must be reached after considering the question as to whether probabilities and circumstantial evidence do not justify the said conclusion.
Enquiries held by domestic Tribunals in such cases must, no doubt, be fair and students against whom charges are framed must be given adequate opportunities to defend themselves and in holding such enquiries, the Tribunal, must scrupulously follow rules of natural justice; but it would, we think, not be reasonable to import into these enquiries all considerations which govern criminal trials in ordinary courts of law.
In the present case, no animus is suggested and no malafides have been pleaded.
The enquiry has been fair and the respondent has had an opportunity of making his defence.
That being so, we think the High Court was not justified in interfering with the order passed against the respondent.
We ought, however, to add that though we are inclined to accept the argument raised by the learned Advocate General against the decision of the High Court, we do not propose to make any consequential order is favour of the appellants, because the learned Advocate General has fairly conceded that he does not want any such order in the present appeal.
It appears that the respondent has, in June, 1962, passed his Intermediate Examination and it has been fairly conceded that there is no intention to disturb his career under the present circumstances.
The learned Advocate General wanted a decision from us in this appeal because he apprehended that the reasoning adopted by the High Court in setting aside the order passed against the respondent may be construed to mean that 777 under article 226, the High Court can examine the merits of the order passed by appellant No. 1 in such cases.
The result is, though we agree with the appellants that the order passed by the High Court was not justified, we refrain from setting it aside for the reasons just explained.
There would be no order as to costs.

summary:
The appellant Board cancelled the declaration of the result of the respondent in the High School Certificate Examination held in 1960 accepting the findings of the subcommittee appointed by it to enquire into the charges made against the respondent and another candidate of having used unfair means in answering the English, Mathematics and Hindi papers.
The charges were based upon the fact that in the Hindi 3rd paper set at the said examination, the respondent gave wrong answers to Question No. 4 in precisely the same form in which the answers had been given by the candidate whose Roll number was consecutive with that of the respondent.
The High Court interpreting the charge as confined to that the respondent had copied either from the answer book of the candidate bearing the consecutive Roll Number or from a common source held that the findings of the enquiry committee were based on no evidence and quashed the cancellation of the result.
On appeal by special leave.
Held, that in the circumstances of the case, the identity of the wrong answers given by the respondent with that of the other candidate bearing the consecutive Roll Number rendered the charge of the respondent having employed unfair means highly probable and that the findings of the enquiry committee based upon such probabilities and circumstantial evidence could not be said to be based on no evidence as in such matters direct evidence quite often cannot be available.
Held, further, that in dealing with cases like those of educational institutions dealing with matters of discipline like employing unfair means, the problem faced by the educational institutions should be appreciated by the 'High Court and so long as the enquiry held is fair and affords the candidate an opportunity to defend himself, the matter should 768 not be examined with the same strictness as applicable to criminal trials in the ordinary courts of law.