judgement:
ivil Appeal Nos.
1399 to 1403 of 1970.
479 Appeal from the Judgment and order dated 20th December 1 968 A the Madras High Court in Tax Case No. 314/64 (Reference No. 82 of 1964) and Civil Appeal No. 301 of 1974 Appeal from the Judgment and order dated 3rd April 1972 of the Madras High Court in Tax Case No. 328 of 1966 (Reference No. 88/66).
section T. Desai, J. Ramamurthi; for the appellant (In CA 1399 1403 of 1970).
section Swaminathan, Mrs. section Gopalakrishnan for the Respondent in all the appeals.
The Judgment of the Court was delivered by JASWANT SINGH, J.
These Appeals Nos.
1399 to 1403 of 1970 and 301 of 1974 by certificates granted by the High Court of Madras shall be disposed of together by this judgment as they raise common question of law and fact.
The circumstances giving rise to these appeals are: The late R. Sridharan along with his father and brothers constituted a Hindu undivided family governed by Mitakshara law.
On June 28, 1952, while he was still unmarried, a partition took place between him, his brothers and his father.
As a result of this partition, a block of shares in T. V. Sundaram Iyengar and Sons Private Limited and three other limited companies fell to his share.
On June 14, 1956, Sridharan married Rosa Maria Steinbchler, a Christian woman of Austrian descent, under the .
On November 29, 1957, a son named Nicolas Sundaram was born out of this wedlock.
For the assessment years 1957 58, and 1958 59, Sridharan was assessed to income tax and wealth tax in the status of an 'individual ' on his own declaration to that effect.
In the assessment proceedings in respect of income tax and wealth tax for the assessment years 1959 60, 1960 61 and 1961 62 and in the assessment proceedings under the Expenditure Tax Act for the year 1961 62, he claimed to be assessed in the status of a member of Hindu undivided family consisting of himself and his son, Nicolas Sundaram, contending that the property held by him was ancestral and Nicolas Sundaram was a Hindu.
The Income Tax officer, Wealth Tax officer and Expenditure Tax officer refused to accede to the contention of Sridharan and assessed him in the status of an `individual ' as in the previous years on the grounds that the value of the share and other investments standing in his name being his exclusive properties and by virtue of section 21 of the , succession to the property of a person whose marriage has been solemnized under that Act being governed by the , and not by the ordinary Hindu law, Nicolas Sundaram could not become a member of Hindu undivided family with his father.
Sridharan thereupon went up in appeal to the Appellate Assistant Commissioner but remained unsuccessful.
The orders passed by the Income 480 Tax /Wealth Tax/Expenditure Tax officers and the Appellate Assistant Commissioner were also affirmed in appeals against the assessments respectively made under the Income tax Act`, Wealth Tax Act and the Expenditure Tax Act by the Appellate Tribunal.
In the course of its consolidated order rejecting the appeals, the appellate Tribunal observed that although section 21 of the pre served some of the rights in the family property of the children born out of marriage solemnized under that Act, it did not clothe such off spring with the character of Hindus and therefore, there was no Hindu undivided family of Sridharan and his son which could claim to be taxed as Hindu undivided family.
Thereafter on the applications made by Sridharan under section 27 ( 1 ) of the Wealth Tax Act, section 66 ( 1 ) of the Income tax Act and section 25(l) of the Expenditure Tax Act, the Income tax Appellate Tribunal referred the following common question of law arising from its aforesaid decision for the opinion of the High Court: "Whether, on the facts and in the circumstances of the case, the assessee and his son constituted a Hindu undivided family for purposes of assessment under the Income tax, Wealth tax and Expenditure tax Acts ?" The High Court following the decision of this Court in Gowli Buddanna vs Commissioner of Income tax(l) held that Sridharan 's claim to be reckoned as Hindu undivided family was well merited and the Tribunal was in error in holding that there was no Hindu undivided family of Sridharan and his son which could claim to be assessed and taxed as such either under the Income tax Act, or Wealth Tax Act or the Expenditure Tax Act.
The High Court accordingly answered the question in the affirmative but granted certificate of fitness for appeal to this Court.
Sridharan died on April 9, 1962.
A few days after the valuation date relevant for the assessment year 1963 64, his widow Mrs. Rosa Maria Steinbchler filed a wealth tax return claiming that the assessment for the assessment year 1962 63 should be made in the status of Hindu undivided family.
The Wealth Tax officer following his earlier decision in the assessment proceedings in respect of the previous years rejected the claim of Rosa Maria Steinbchler holding that she was not a Hindu and in any case since her marriage with Sridharan was under the , Nicolas Sundaram had no right by birth in the properties obtained by the assessee on partition.
He further held that Nicolas Sundaram could claim Sridharan 's property only under the and not under the Hindu law.
on appeal, the Appellate Assistant Commissioner affirmed the order of the Wealth Tax officer.
A further appeal was 481 "Whether the assessee, Sridharan and his son constituted A in law a Hindu undivided family for the purpose of assessment under the ?" The High Court answered the question in the affirmative i.e.
against the Revenue observing that the decision in the previous reference directly governed the facts of the fresh reference.
Aggrieved by this order of the High Court, the appellant applied and obtained leave to appeal to this Court under section 29(1) of the q and Article 133(1)(c) of the Constitution of India.
This is how the appeals are before us.
Counsel appearing for the appellants and respondents have repeated before us the contentions respectively advanced on behalf of the parties before the High Court.
It cannot be disputed that a joint Hindu family consists of all persons lineally descended from a common ancestor and includes their wives and unmarried daughters.
It cannot also be disputed that property obtained by Sridharan on partition between his father and brothers could become ancestral property so far as his sons, grandsons and great grandsons were concerned who could according to Mitakshara law acquire an interest therein by birth.
The sole question which, however, falls for our consideration in these appeals is whether Nicolas Sundaram is a Hindu governed by Hindu law.
It is a matter of common knowledge that Hinduism embraces within itself so many diverse forms of beliefs, faiths, practices and worship that it is difficult to define the term 'Hindu ' with precision.
The historical and etymological genesis of the word "Hindu" has been succinctly explained by Gajendragadkar, C.J. in Shastri Yagnapurushdasji & ors.
vs Muldas Bhundardas Vaishya & Anr.(l).
In Unabridged Edition of Webster 's Third New International Dictionary of the English language, the term 'Hinduism ' has been defined as meaning "a complex body of social, cultural, and religious beliefs and practices evolved in and largely confined to the Indian subcontinent and marked by a caste system, an outlook tending to view all forms and theories as aspects of one eternal being and truth, a belief in ahimsa, karma, dharma, sansara, and moksha, and the practice of the way of works, the way of knowledge, or the way of devotion as the means of release from the bound of rebirths; the way of life and form r of thought of a Hindu".
In Encyclopaedia Britannica (15th Edition), the term 'Hinduism ' has been defined as meaning "the civilization of Hindus (originally, the inhabitants of the land of the Indus River).
It properly denotes the Indian civilization of approximately the last 2,000 years, which (1) ; 33 833 SCI/76 482 gradually evolved from Vedism, the religion of the ancient Indo European peoples who settled in India in the last centuries of the 2nd millennium BC.
Because it integrates a large variety of heterogeneous elements, Hinduism constitutes a very complex but largely continuous whole, and since it covers the whole of life, it has religious, social, economic, literary, and artistic aspects.
As a religion, Hinduism is an utterly diverse conglomerate of doctrines, cults, and way of life .
In principle, Hinduism incorporates all forms of belief and worship without necessitating the selection or elimination of any.
The Hindu is inclined to revere the divine in every manifestation, whatever it may be, and is doctrinally tolerant, leaving others including both Hindus and non Hindus whatever creed and worship practices suit them best.
A Hindu may embrace a non Hindu religion without ceasing to be a Hindu, and since the Hindu is disposed to think synthetically and to regard other forms of worship, strange gods, and divergent doctrines as inadequate rather than wrong or objectionable, he tends to believe that the highest divine powers complement each other for the well being of the world and mankind.
Few religious ideas are considered to be finally irreconcilable.
The core of religion does not even depend on the existence or non existence of God or on whether there is one god or many.
Since religious truth is said to transcend all verbal definition it is not conceived in dogmatic terms.
Hinduism is, then both a civilization and a conglomerate of religions, with neither a beginning, a founder, nor a central authority, hierarchy, or organization.
Every attempt at a specific definition of Hinduism has proved unsatisfactory in one way or another, the more so because the finest Indian scholars of Hinduism, including Hindus themselves, have emphasized different aspects of the whole".
In his celebrated treatise "Gitarahasaya", B.G. Tilak has given the following broad description of the Hindu religion: : "Acceptance of the Vedas with reverence; recognition of the fact that the means or ways of salvation are diverse; and realisation of the truth that the number of gods to be worshipped is large, that indeed is the distinguishing feature of Hindu religion".
In Bhagwan Koer vs J. C. Bose & ors.(l) it was held that Hindu religion is marvellously catholic and elastic.
Its theology is marked by eclecticism and tolerance and almost unlimited freedom of private worship.
Its social code is much more stringent, but amongst its different castes and sections, exhibits wide diversity of practice.
No trait is more marked of Hindu society in general than its herror of using the meat of the cow.
This being the scope and nature of the religion, it is not strange that it holds within its fold men of divergent views and traditions who have very little in common except a vague faith in what may be called the fundamentals of the Hindu religion.
(1) Cal.
483 It will be advantageous at this stage to refer to page 671 of Mulla 's A Principles of Hindu Law (Fourteenth Edition), where the position is stated thus: : "The word 'Hindu ' does not denote any particular religion or community.
During the last hundred years and more it has been a nomenclature used to refer comprehensively to various categories of people for purposes of personal law.
It has been applied to dissenters and non comformists and even to those who have entirely repudiated Brahminism.
It has been applied to various religious sects and bodies which at various periods and in circumstances developed out of or split off from, the Hindu system but whose members have nevertheless continued to live under the Hindu law and the Courts have generally put a liberal construction upon enactments relating to the personal laws applicable to Hindus".
In paragraph 6 of Chapter I of Mulla 's aforesaid Treatise, the following have been enumerated as persons to whom Hindu law applies: "(i) not only to Hindu by birth, but also to Hindus by religion, i.e. converts to Hinduism; (ii) to illegitimate children where both parents are Hindus; (iii)to illegitimate children where the father is a Christian and the mother is a Hindu, and the children are brought up as Hindus.
But the Hindu law of coparcenary, which contemplates the father as the head of the family and the.
sons as coparceners by birth with rights of survivorship, cannot from the very nature of the case apply to such children; (iv) to Jains, Buddhists in India, Sikhs and Nambudri Brahmins except so far as such law is varied by custom and to Lingayat who are considered Sudras; (v) to a Hindu by birth who, having renounced Hinduism, has reverted to it after performing the religious rites of expiation and repentence.
Or even without a formal ritual of reconversion when he was recognised as a Hindu by his community; (vi) to sons of Hindu dancing girls of the Naik caste converted to Mahomedanism, where the sons are taken into the family of the Hindu grandparents and are brought up as Hindus; (vii) to Brahmos; to Arya Samajists; and to Santhals of Chota Nagpur and also to Santhals of Manbhum except so far as it is not varied by custom; and 484 (viii) to Hindus who made a declaration that they were not Hindus for the purpose of the Special Marriage Act, 1872.
" This enumeration is based upon decisions of various courts relating to old uncodified Hindu law.
In Lingappa vs Esudasen(l) which related to maintenance, it was held that Hindu law does not apply to the illegitimate children of a Hindu father by a Christian mother who are brought up a Christians.
This decision indirectly leads to the conclusion that legitimate children of a Hindu father by a Christian mother who are brought up as Hindus would be governed by Hindu law.
In Mothey Anja Ratna Raja Kumar vs Koney Narayana Rao & ors.(2) whole approving the observations made in Ananthaya vs Vishnu(3) this Court inter alia held that under the Mitakshara law, an illegitimate son is entitled to maintenance as long as he lives, in recognition of his status as a member of his father 's family.
Under the codifying Acts namely the , the , the Hindu Minority and Guardian ship Act, 1956 and the Hindu Adoption and Maintenance Act, 1956, the orthodox concept of the term 'Hindu ' has undergone a radical change and it has been given an extended meaning.
The aforesaid codifying Acts not only apply to Hindus by birth or religion i.e. to converts to Hinduism but also to a large number of other persons.
According to explanation (b) to section 2(1) of the , Hindu Adoption and Maintenance Act, 1956 and as also according to explanation (ii) to section 3(1) of the Hindu Minority and Guardianship Act, 1956, any child legitimate or illegitimate, one of whose parents is a Hindu by religion and who is brought up as a Hindu is a Hindu.
In the present case, Sridharan is a Hindu by birth and was lawfully married to Rosa Maria Steinbchler.
Even after his marriage, he did not renounce Hinduism but continued to profess that religion.
Having been begotten out of the aforesaid valid and lawful wedlock, Nicolas Sundaram is a legitimate child and lineal descendant of Sridharan.
There is no material on the record to show that Nicolas Sundaram was not brought up as a Hindu or that he did not conform to the habits and usages of Hinduism or that he was not recognised as a Hindu by the society surrounding him or that he became a convert to another faith.
Sridharan has also unequivocally acknowledged and expressly declared that he and his son, Nicolas Sundaram formed a Hindu undivided family.
This declaration in the circumstances is sufficient, as also found by the High Court? to establish that Nicolas Sundaram was brought up as a Hindu member of the family to which his father belonged.
At page 290 of his Treatise on Hindu Law, and Usage (Eleventh Edition), Mayne says that a child in India, under ordinary circumstances, must be presumed to have his father 's (1) (2) A.I.R. 1953 S.C. 433.
(3) 17 Mad.
485 religion, and his corresponding civil and social status.
He, there A fore, have no hesitation in holding that Nicolas Sundaram is a Hindu and he could validly be a member of the Hindu undivided family headed by his father and be governed by Hindu law.
Section 21 of the Special Marriage Act which has been heavily relied upon by the Revenue has, in our opinion, no bearing on the present case.
That section provides that succession to the property of a person whose marriage has been solemnized under the and the property of the issue of such marriage shall be governed by the provisions of the (XXXIX of 1925).
In other words, the section guarantees inter alia to the issue of the person whose marriage has been solemnized under the a collateral statutory right of succession to the estate of the latter in case he dies intestate.
It does not in any way impair or alter the joint family structure between an assessee and his son.
Nor does it effect, as observed by the High Court, the discretion vested in a Hindu assessee to treat his properties as joint family properties by taking into his fold his Hindu sons so as to constitute joint family properties.
For the foregoing reasons, we are of the opinion that the aforesaid question referred to the High Court was rightly answered by it on both the occasions.
In the result, we find no merit in these appeals which are dismissed with costs.
M.R. Appeals dismissed.

summary:
The late R. Sridharan married Rosa Maria Steinbichler, a christian Austrian of descent, under the and a son Nicolas Sundaram was born out of the wedlock.
In the assessment proceedings i respect of income tax, wealth tax and expenditure tax, Sridharan claimed to be assessed in the status of a member of Hindu Undivided Family consisting of himself and his son, contending that the property held by him was ancestral and Nicolas Sundaram was a Hindu.
The officers dealing with these taxes rejected the contention and assessed him as an individual on the ground that succession to the property of a person married under the , is governed by the and not by ordinary Hindu Law and Nicolas Sundaram could not become a member of Hindu Undivided Family With his father.
these orders were affirmed by the Appellate Assistant Commission i the Appellate Tribunal in appeals by Sridharan against the assessments.
On further applications made by Sridharan, the Income Tax Appellate Tribunal referred the matter to the High Court which decided in favour of Sridharan but granted a certificate of fitness.
Meanwhile, Sridharan died, and his widow filed wealth tax returns, claiming the status of a member of Hindu Undivided Family.
The Revenue authorities followed their earlier decisions, and ultimately the matter was referred to the High Court which decided in favour of respondent Mrs. Sridharan, but granted Leave to appeal to this Court.
Dismissing the appeals, the Court, ^ HELD: ( 1 ) Under the codifying, Acts.
the orthodox concept of the term "Hindu" has undergone a radical change and it has been given an extended meaning.
The Acts not only apply to Hindus but also to a large number of other persons.
Any child legitimate or illegitimate, one of whose parents is a Hindu by religion and who is brought up as a Hindu, is a Hindu.
[478D E] (2) Section 21 of the has no bearing on the present case.
The section does not in any way impair or alter the joint family structure between n assessee and his son.
Nor does it affect the discretion vested in a Hindu assessee to treat his properties as joint family properties by taking into his fold his Hindu sons so as to continue joint family properties [479 A C] Shastri Yagnapurushdasji & Ors.
vs Muldas Bhundardas Vaishya and Anr. ; ; Bhagwan Koer vs J. C. Bose & Ors.
11; Lingappa vs Esudasan ; Mothey Anja Ratna Raja Kumar vs Koney Narayana Rao & Ors.
AIR 1953 SC 433 and Ananthaya vs Vishnu , referred to.
Webster 's 3rd New International Dictionary of the English Language; Encyclopaedia Britannica (15th Edn.); Gitarahasya by B. G. Tilak Principles of Hindu Law (14th Edn.) pp. 671 and chap.
I para 6 by Mulla, and Hindu Law & Usage (11th Edn.) pp. 290 by Mayne, referred to.


judgement:
: Criminal Appeal No. 99 of 1976.
Appeal by Special Leave from the Judgment and order dated 16 12 75 of the Karnataka High Court in Criminal Petition No. 50 of 1975.
N. B. Datar and R. B. Datar for the Appellant.
M. C. Bhandare, (Mrs.) section Bhandare, M. section Narsimhan Sharma, and A. K. Mathur for Respondents I and 2.
Narayan Nettar for Respondent No. 3.
The Judgment of the Court was delivered by FAZAL ALI, J.
This appeal by special leave is directed against the judgment of the Karnataka High Court by which it set aside the order of the Additional Judicial Magistrate, First Class, Gokak issuing process against respondents 1 & 2 in exercise of his discretion under section 204 of the Code of Criminal Procedure.
The facts of the case lie within a very narrow compass and although the High Court has taken great pains to write a laboured judgment the point involved is short and simple and does not merit a detailed discussion.
The police of Gokak Police Station submitted a charge sheet against Nagappa Giddannavar and seven others under sections 302, 114, 148, 147 and other sections on the allegations that on July 19, 1973 the accused persons had waylaid and murdered one Nagappa son of the appellant in this Court.
The appellant, who had filed the report before the police does not appear to have bean satisfied with the investigation by the police which according to her was tainted and had suppressed some important materials, filed a complaint before the Magistrate at Gokak on October 4, 1973 alleging that respondents 1 & 2 had in fact abetted the offence of murder committed by the other accused but as they were influential 125 persons their names were deliberately left out in the report as also in the dying declaration.
On receiving the complaint on October 4, 1973 the Magistrate decided to hold an inquiry into the complaint himself and in pursuance of his decision he recorded some evidence on October 8, 1973.
Thereafter the case was posted for October 10, 1973 for arguments and further evidence, if any.
On October 10, 1973 the Magistrate observed that six witnesses had been examined and the evidence recorded so far was sufficient for the Court to determine the question as to whether or not process should be issued to respondents 1 & 2.
He then adjourned the case for argument for October 12, 1973.
On that day arguments were heard but before any order could be passed the Magistrate who had recorded the evidence was transferred and therefore the case had to be adjourned.
The new Magistrate took up the matter on November 26, 1973 and after hearing the complainant he adjourned the case to December 3, 1973 and on this day he directed that further inquiry may be made by Superintendent of Police, Belgaum and he accordingly referred the matter for inquiry and report to the Superintendent of Police, Belgaum asking him to submit his report within six weeks.
It seems to us that in view of the change of the Magistrate the successor Magistrate was not able to grasp the implications of the proceedings which had been taken by his predecessor who had in fact first decided to hold an inquiry himself and after recording the evidence had decided to pass an order under section 204 of the Code of Criminal Procedure.
Before however he could pass any order he was succeeded by the present Magistrate.
The appellant filed an application in revision to the High Court on December 11, 1973 against the order of the Magistrate dated December 3, 1973 referring the matter to the Superintendent of Police for inquiry and report.
While the application was pending before the High Court, respondents 1 & 2 filed a petition before the High Court praying for an early hearing of the revision and for vacation of the stay order.
Along with this petition the respondents filed a number of documents including the copies of the petitions sent by the appellant to the Chief Minister and the Speaker.
We might indicate here that there was absolutely no occasion for the respondents to have filed the documents before the High Court in a miscellaneous petition nor did they obtain any permission of the Court for filing those documents.
The High Court, after hearing the revision application filed be the appellant, allowed the same mainly on the ground that as the Magistrate had ultimately decided to hold an inquiry into the truth or falsehood of the complaint himself he had no jurisdiction to stop that inquiry and then make a reference to the police afresh.
The High Court accordingly quashed the order of the Magistrate and directed him to decide the case in accordance with the law after recording further evidence, if any.
It appears that the High Court did not give any directions to the Magistrate for considering the documents which had been filed by the respondents before it but by a subsequent order merely forwarded the documents to the Magistrate.
The papers were sent back to the Magistrate on January 7, 1975 and by his order dated January 27, 1975 the Magistrate was informed that the appellant did not want to adduce any further evidence.
The matter was accordingly posted for argument on February 7, 1975 and after hearing the 126 arguments and considering the evidence recorded by the Magistrate he by his order dated February 11, 1975 directed process to be issued against respondents 1 & 2 under section 204(1) (b) of the Code of Criminal Procedure.
Respondents 1 & 2 then preferred a revision against this order to the High Court under section 482 of the Code of Criminal Procedure praying that the order of the Magistrate may be quashed.
This revision was allowed by the High Court by the impugned order against which special leave was granted by this Court at the instance of the appellant.
In support of the appeal Mr. H. B. Datar submitted that the Magistrate had given cogent reasons for holding that there were sufficient grounds for proceeding against respondents 1 & 2 and the High Court was in error in interfering with the order of the Magistrate by examining the merits of the case after taking into consideration the documents filed by the respondents which could not be looked into by the Magistrate as they did not form part of the complaint or the evidence recorded in support thereof.
In our opinion the contention raised by the learned counsel for the appellant is well founded and must prevail.
Mr. M. C. Bhandare sought to repel the argument of the appellant on the ground that the order of the Magistrate was perverse and as the case was full of patent absurdities and was politically motivated the prosecution of respondents 1 & 2 would amount to unnecessary harassment resulting in abuse of the process of the Court.
In the view we take in the instant case it is not necessary for us to enter into the merits of the case at this stage.
It is well settled by a long catena of decisions of this Court that at the stage of issuing process the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he is only to be prima facie satisfied whether there are sufficient grounds for proceeding against the accused.
It is not the province of the Magistrate to enter into a detailed discussion of the merits or demerits of the case nor can the High Court go into this matter in its revisional jurisdiction which is a very limited one.
In Chandra Deo Singh vs Prokash Chandra Bose(1) this Court had after fully considering the matter observed as follows: "The courts have also pointed out in these cases that what the Magistrate has to see is whether there is evidence in support of the allegations of the complainant and not whether the evidence is sufficient to warrant a conviction.
The learned Judges in some of these cases have been at pains to observe that an enquiry under section 202 is not to be likened to a trial which can only take place after process is issued, and that there can be only one trial.
No doubt, as stated in sub section(1) of section 202 itself, the object of the enquiry is to ascertain the truth or falsehood of the complaint, but the Magistrate making the enquiry has to do this only with reference to the intrinsic quality of the statements made before him at the enquiry which would naturally mean the complaint itself, the statement on oath made by the complainant (1) (1964)1 section C. R. 639, 648 127 and the statements made before him by persons examined at the instance of the complainant.
" Indicating the scope, ambit of section 202 of the Code of Criminal Procedure this Court in Vadilal Panchal vs Dattatrya Dulaji Ghadigaonker and Another(1) observed as follows: "Section 202 says that the Magistrate may, if he thinks lit, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person complained against and direct an inquiry for the purpose of ascertaining the truth or falsehood of the complaint; in other words, the scope of an inquiry under the section is limited to finding out the truth or falsehood of the complaint in order to determine the question of the issue of process.
The inquiry is for the purpose of ascertaining the truth or falsehood of the complaint; that is, for ascertaining whether there is evidence in support of the complaint so as to justify the issue of process and commencement of proceedings against the person concerned.
The section does not say that a regular trial for adjudging the guilt or otherwise of the person complained against should take place at that stage; for the person complained against can` be legally called upon to answer; the accusation made against him only when a process has issued and he is put on trial."
It would thus be clear from the two decisions of this Court that the scope of the inquiry under section 202 of the.
Code of Criminal Procedure is extremely limited limited only to the ascertainment of the truth of falsehood, of the allegations made in the complaint (1) on the materials placed by the complaint before the Court.
(ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; and (iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that, the accused may have.
In fact it is well settled that in proceedings under section 202 the accused has got absolutely no locus us standi and is not entitled to be heard on the question whether the process should be issued against him or not.
Mr. Bhandare laid great stress on the words "the truth or falsehood of the complaint" and contended that in determining whether the complaint is false the Court can go into the question of the broad probabilities of the case or intrinsic infirmities appearing in the evidence.
It is true that in coming to a decision as to whether a process should be issued the Magistrate can take into consideration inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant ill support of the allegations but there appears to be a very thin line of demarcation between a probability of conviction of the accused and establishment of a prima facie case against him.
The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him.
Once the Magistrate has exercise his discretion it is not for (1) , 9. 128 the High Court, or even this Court, to substitute its own discretion for.
that of the Magistrate or to examine the case on merits with view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused.
These considerations, in our opinion, are totally foreign to the scope and ambit of an inquiry under section 202 of the Code of Criminal Procedure which culminates into an order under section 2042 of the Code.
Thus it may be safely held that in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside: (1) Where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does net disclose the essential ingredients of an offence which is alleged against the accused; (2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused; (3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and .
(4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.
The cases mentioned by us are purely illustrative and provide sufficient guidelines to indicate contingencies where the High Court can quash proceedings.
Applying these principles to the facts of facts present case it seems to US that the present case is not one in which the High Court should have quashed the proceedings.
To begin with, the order of the Magistrate dated February 11, 1975 issuing process against respondents 1 and `2 is a very well reasoned one which takes into consideration the allegations in the complaint as also the evidence adduced in support of it.
The Magistrate clearly applied his mind and has analysed the evidence into three categories (1) those witnesses who have deposed as eye witnesses regarding the actual occurrence and the part attributed to respondents 1 and 2.
The Magistrate then refers to other witnesses who corroborated the evidence of the complainant, and thirdly the Magistrate relied on the evidence of witnesses who were admittedly signatories to the dying declaration and had clearly stated on oath that the names of respondents 1 and 2 were mentioned in their presence by the deceased but were not recorded by the Police Patel in the dying declaration and in spite of the protest by the witnesses they were made to sign the dying declaration as attesting witnesses under threat and duress.
On a consideration of this evidence the Magistrate was satis 129 fied that a prima facie case against respondents 1 and 2 was made out and he accordingly issued process against them.
It was not a case where the Magistrate had passed an order issuing process In a mechanical manner or just by way of routine.
The High Court appears to have gone into the whole history of the case, examined the merits of the evidence, the contradictions and what it called the improbabilities and after a detailed discussion not only of the materials produced before the Magistrate but also of the document which had been filed by the defence and which should not have been looked into at the stage when the matter was pending under section 202, has held that the order of the Magistrate was illegal and was fit to be quashed.
In the first place the High Court ought not to have considered the document filed by respondents 1 and 2 in the previous revision without obtaining the permission of the Court and` particularly when the High Court itself gave no directions whatsoever to the Magistrate to consider those documents.
In fact the Magistrate considering the question as to whether process should be issued against the accused or not cannot be into the materials placed by the accused and therefore the High Court could not have given any such directions while disposing of the previous, revision.
The impugned order of the High Court proceeds on the basis that it was incumbent on the Magistrate to have considered the documents and their effect on the truth or falsehood of the allegations made by the complainant.
This was an entirely wrong approach As we arc clearly of the opinion that the Magistrate was fully justified in completely excluding the documents from consideration, we refrain from making any observation regarding the, effect of those documents.
In fact the documents filed by the respondents were mere copies and they were, therefore, not admissible.
At any rate, at the stage of section 202, or section 204 of the Code of Criminal Procedure as the accused had no locus standi the Magistrate had absolutely no jurisdiction to go into any materials or evidence which may be produced by the accused who could be present only to watch the proceedings and not to participate in them.
Indeed if the documents or the evidence produced by the accused is allowed to be taken by the Magistrate then an inquiry under section 202 would have to be converted into a full dress trial defeating the very object for which this section has been engrafted he High Court in quashing the order of the Magistrate completely failed.
to consider the limited scope of an inquiry under section 202.
Having gone through the order of the Magistrate we do not find any error or law committed by him.
The Magistrate was exercises ' his discretion and has given cogent reasons for his conclusion.
Whether the reasons were, good or bad, sufficient or insufficient, is not a matter which could have been examined by the High Court ill revision.
We are constrained to observe that the High Court went out of its way write a laboured judgment highlighting certain aspect of the case of the accused as appearing from the documents filed 'of them which they were not entitled to file and which were not entitled in law to be considered.
For these reasons, therefore, we arc satisfied that the order of the High Court suffers from a serious legal infirmity and the High Court 11 833 SCI/76 130 has exceeded its jurisdiction in interfering in revision by quashing the order of the Magistrate.
We, therefore, allow the appeal, set aside the order of the High Court dated December 16, 1975 and restore the order of the Magistrate issuing process against respondents 1 and 2.
At the time of granting the special leave, we has directed the Sessions Judge who was trying the original case resulting from the F.I.R. lodged before the police to stay proceedings to the extent that the judgment was not to be pronounced until this appeal was disposed of.
We understand that the Sessions case is now concluded before the learned Sessions Judge and arguments have also been heard.
1 view of the order of the Magistrate issuing process against respondents 1 and 2 which has been confirmed by us, the respondents will have to face a supplementary trial and it is not conducive in the interests of justice to allow the other trial to be stayed any further.
The Sessions Judge is therefore directed to dispose of the Sessions Case and the stay granted by this Court earlier is Vacated.
Appeal allowed.

dataset_name: IN-Abs

summary:
The appellant filed a complaint before the Magistrate alleging that the police did not deliberately charge sheet unrespondents 1 and 2 despite the fact that they abetted in the murder of her son because they were influential persons.
After the inquiry the Magistrate issued a process to respondents 1 under 2 under section 204(1)(b) of the Code of Criminal Procedure, 1973.
The revision petition of respondents I and 2 filed under section 482 Cr.
P.C. was allowed by the High Court.
in appeal to this Court it was contended for.
the appellant that the High Court was in error in examining the order of the Magistrate on merits after taking into consideration the documents filed by the respondents, which did not form part of the complaint or evidence recorded in support thereof before the Magistrate.
Allowing the appeal, ^ HELD: The order of the High Court suffers from a serious legal infirmity and the High Court has exceeded its jurisdiction in interfering in revision by question the order of the Magistrate.
[129 H] (1) In the following cases an order or the Magistrate can be quashed or set aside: (a) Where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused; (b) Where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused.
(c) Where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (d) Where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.
[128 C E] (2) (a) At the stage of issuing the process the Magistrate is mainly concerned with allegations made in the complaint or the evidence led and he is only.
to be prima facie satisfied whether there are sufficient grounds for proceeding against the accused.
It is not the province of the Magistrate to enter into a detailed discussion on the merits or demerits of the case.
The scope of the inquiry under section 202 Cr.
P.C. is extremely limited limited to the ascertainment of the truth or falsehood of the allegations made in the complaint: (1) on the materials placed by the complainant before the court (ii) for the limited purpose of finding out whether a prima facie case for issue of process had been made out and (iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have.
In proceedings under section 202 the accused has got absolutely no locus standing and is not entitled to be heard on the question whether the process should be issued against him or not.
E F] 124 Chandra Deo Singh vs Prokash Chandra Bose, ; and Vadilal Panchal vs Dattatraya Dulaji Ghadigaonker and Another, followed.
(b) In coming to a decision as to whether a process should be issued the Magistrate can take into consideration inherent improbabilities appearing on the face of the complaint or in evidence led by the complainant in support of the allegations.
Once the Magistrate has exercised judicially the discretion given to him it is not for the High Court or even this Court to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused.
These considerations are totally foreign to the scope and ambit of inquiry under 5. 202 of the Code of Criminal Procedure, which culminates in an order under section 204 of the Code.
[127G H; 128A B] (3) In the instant case the High Court should not have quashed the proceedings.
The order of the Magistrate was a reasoned one which took into consideration the allegations in the complaint as also the evidence adduced in support of it.
It was not a case where the Magistrate had passed an order ill a mechanical manner or just by way of routine.
The High Court could not to into this matter in its revisional jurisdiction which is a very limited one.
[ 128 F G]


judgement:
Civil Appeal No. 1155 of 1971.
(Appeal by Special Leave from the Judgment and Order dated 17 11 1969 of the Allahabad High Court in First Appeal No. 178/61).
section C. Manchanda, Sadhu Singh, R. N. Kapoor, Mrs. Nirmala Gupta, Uzzal Singh and J. M. Khanna for the appellant.
Gobind Das, P. P. Rao, Girish Chandra and section P. Nayar for the respondents.
The Judgment of the Court was delivered by BEG, J.
This is an appeal by special leave against the judgment and order of a Division Bench of the Allahabad High Court given by it on 17th November, 1969, dismissing a plaintiff 's first appeal arising out of an original suit for a declaration that the order passed by the Commissioner of Income tax, Lucknow, on 2nd April, 1956, reducing the appellant in rank from the post of an Income tax Officer to that of an Income tax Inspector, was void and inoperative.
It appears that the appellant was in service upto 30th April 1958, when he was prematurely retired.
The appellant also claimed Rs. 20,904/ as arrears of salary, but he reduced this claim to Rs. 16,561.29.
The appellant was originally appointed on 22nd November 1922, as Lower Division Clerk, and, thereafter, promoted as Income tax Inspector in 1942.
He was promoted to the post of Income tax Officer in 1945.
His case was that he had worked to the entire satisfaction of his immediate superior officers and higher authorities and had earned a number of certificates highly appreciative of his work.
He was confirmed early in 1952 as an Income tax Officer.
He was, however, placed under suspension on 30th September, 1953, by the Commissioner of Income Tax, U.P., Lucknow, on the basis of a preliminary enquiry on allegations involving corruption and violation of service rules.
582 Charges were framed on 30th December, 1953, by Shri A. K. Bose, Deputy Director of Investigations, who was appointed by the Commissioner of Income tax as the Inquiring Officer.
The preliminary enquiry had been conducted by Shri G. section Srivastava, Inspecting Assistant Commissioner of Income tax, Meerut.
That first charge was that the appellant had entered into partnership with others, under the name of Gautam Cycle Mart, Meerut, in 1939, in contravention of the Government Servants ' Conduct Rules.
The second charge was that he had made various investments in the name of various members of his family far in excess of and disproportionate to the known sources of his income.
His high standard of living and expenditure were also mentioned there.
The third and the last charge gave particulars of thirteen assessment cases in which the appellant was alleged to be either "grossly negligent, careless, inefficient, and/or corrupt in the performance of his duties as Income tax Officer".
The appellant 's defences included alleged confused nature of charges characterized by him as "vague, over lapping, intermingled" and wrongly joined together.
He also pleaded that there had been an enquiry in 1949, by Shri A. R. Sachdeva, Asstt.
Inspecting Commissioner, into some of the matters mentioned in the charges, and about others in 1952 by Shri R. N. Srivastava, another Inspecting Commissioner, and that the appellant had been exonerated of the allegations and imputations made against him on each occasion.
One of his defences was that a fresh enquiry into the same charges was not permissible under the Departmental rules and was also barred by rules of natural justice.
He also complained of failure to give him opportunity to produce nine witnesses in his defence with some documents.
It is evident that the questions raised by the appellant depended on findings of fact.
All relevant facts had been examined by the officer who held the enquiry and by the punishing authority.
No malafides against either the Inquiring Officer, Shri A. K. Bose, Deputy Director Investigation, or against the punishing authority was alleged.
There are, however, suggestions that Shri G. section Srivastava and Shri R. N. Srivastava, Inspecting Assistant Commissioners, were pursuing the appellant for some unknown reason which we do not find stated anywhere.
We fail to see how these two officers, who neither conducted the actual departmental trial nor could have any influence over the punishing authority, could cause any miscarriage of justice or do anything to vitiate the departmental trial merely because they held preliminary inquiries before framing charges.
The defence of the appellant seemed something similar to the much too common a defence of the accused in criminal trials attributing all their misfortunes to the hostility of the police.
583 The question whether the appellant was given a reasonable opportunity to lead evidence and to be heard or not is largely a question of fact.
It is only when an opportunity denied is of such a nature that the denial contravenes a mandatory provision of law or a rule of natural justice that it could vitiate the whole departmental trial.
Prejudice to the government servant resulting from an alleged violation of a rule must be proved.
The plea that the appellant has been subjected to trial on allegations which had been the subject matter of previous enquiries overlooks that no charge was framed as a result of any previous enquiry.
Therefore, the two authorities cited: The State of Assam & Anr.
vs J. N. Roy Biswas, and R. T. Rangachari vs Secretary of State, do not help the appellant.
If an inquiry is held, at a particular stage, possibly to determine whether regular proceedings should be drawn up or started, it does not debar a departmental trial.
That was the nature of the previous enquiries.
It appears that it is only after the appellant 's activities had become more notorious that further enquiry was undertaken and regular charges framed.
It is possible that the appellant may have been emboldened by the failure of officers to report earlier that charges should be framed and tried.
In any case, this could not stand in the way of the first regular enquiry in the course of which charges were actually framed and fully enquired into by Officers whose integrity and sense of justice is not challenged.
As for the denial of the opportunity to produce nine witnesses in defence, all that is suggested is that these witnesses could only state what opinions they had formed about the work, efficiency, and integrity of the appellant.
They could not say anything about the particular instances which formed the subject matter of the charges against the appellant.
It is not uncommon for astute Govt.
servants, facing such enquiries, to give long lists of witnesses and documents so as to either prolong an enquiry or to prepare grounds for future litigation.
Unless the exclusion of evidence is of a kind which amounts to a denial of natural justice or would have affected the final decision it could not be material.
In the case before us, it has not even been shown how the witnesses whose production was said to have been disallowed could help the appellant 's case on specific charges.
Indeed, we do not know whether any evidence which the appellant tried to produce was really wrongly excluded and at what stage and for what reasons.
All these are questions of fact which should be, initially, raised in the departmental trial.
After that, if there was any patent error a writ petition lay.
Finally, the 584 trial Court and the High Court had considered at some length all relevant questions raised.
Learned Counsel for the appellant has handed over a very carefully and laboriously prepared statement of facts of the case to show us that the evidence did not support the charges levelled against the appellant.
It was also submitted that, apart from the charges relating to partnership in the Gautam Cycle Mart, no other charge was found substantiated.
Furthermore, it was submitted that, after the inquiring officer had found that the Gautam Cycle Mart was started in 1942 and not in 1939, the appellant should have been given a further opportunity to meet a new case.
No rule was cited in support of such a technical objection to the nature of the charge which would cover the starting of the Gautam Cycle Mart at any time subsequent to 1939 also.
In any case, it was for the appellant to satisfy the Departmental authorities, which had looked into the case upto its final stages, that he had suffered some injustice which to be set right.
He had been given a second opportunity by the punishing authority before it inflicted the punishment of demotion.
Nothing further was required by law.
And, it was probably because the appellant was absolved of charges involving corruption in the discharge of his duties that he was given the lesser punishment of demotion and neither dismissed nor removed from service.
A suit challenging the validity of departmental proceedings cannot be treated as an appeal from the findings in the departmental proceedings or the punishment inflicted upon the Govt.
servant even if these are erroneous.
A question which could effect the result in a civil suit has to be of such nature that it goes to the root of the jurisdiction and the conduct of the department trial and vitiates the result.
It is only if the departmental proceeding in null and void that a plaintiff in such a suit could obtain the relief he had asked.
We are unable to see what point had been raised by the appellant which could have had that effect upon the departmental proceedings.
In Smt.
Ujjam Bai vs State of & Anr.
, this Court said (at P. 835): "A tribunal may lack jurisdiction if it is improperly constituted, or if it fails to observe certain essential preliminaries to the inquiry.
But it does not exceed its jurisdiction by basing its decision upon an incorrect determination of any question that it is empowered or required (i.e.) has jurisdiction to determine".
After citing a passage from Halsbury 's Laws of England, 3rd Edn.
11, page 59, this Court held (at p. 836): 585 The characteristic attribute of a judicial act or decision is that it binds, whether it be right or wrong.
An error of law or fact committed by a judicial or quasi judicial body cannot, in general, be impeached otherwise than on appeal unless the erroneous determination relates to a mauer on which the jurisdiction of that body depends.
These princi ples govern not onnly the findings of inferior courts stricto strictio also the findings of administrative bodies which are deemed be acting in a judicial capacity.
Such bodies are deemed to have been invested with power to err within the limits of their jurisdiction; and provided that they keep within those limits, their decisions must be accepted as valid unless set aside on appeal".
Learned Counsel for the appellant said all that could possibly be said on behalf of his client.
He pointed out that the High Court had given its judgment eight months after it had heerad argumenst.
He urged that the result was that the High Court did not deal with a number of submissions made because they had, apparently, been forgotten.
The Civil Procedure Code does not provide a time limit for the period between the hearing of arguments and the delivery of a judgment.
Nevertheless, we think that an unreasonable delay between hearing of arguments and delivery of a judgment, unless explained by exceptional or extraordinary circumstances, is highly undesirable even when written arguments are submitted.
It is not unlikely that some points which the litigant considers importan may have escaped notice.
But, what is more important is the litigants must have complete confidence in the results of litigation.
This confidence tends to be shaken if there is excessive delay between hearing of arguments and delivery of judgments.
Justice, as we have often observed, must not only be done but must manifestly appear to be done.
On 4th March, 1971, however, the High Court refusing the certificate of fitness of the case for appeal to this Court observed that questions had been attempted to be raised before it in asking for certification which had not been argued at the time when the first appeal was heard by the High Court.
We find that one of the learned Judges who dismissed the application for a certificate of fitness of the case had also heard the arguments in the first appeal.
There is no affidavit before us that any particular points argued before the Division Bench had not been referred to or dealt with by the Bench.
Moreover, the Division Bench had probably not dealt with all arguments on questions of fact because it did not consider it necessary to do so.
After all, it was not hearing an appeal against the findings of the departmental authorities.
It pointed this out.
Furthermore, after hearing the arguments of the learned Counsel for the appellant, we are ourselves unable to see any point which could be raised on behalf of the appellant capable of vitiating the departmental proceedings.
Unless such a point could be raised, there could be no declaration that the departmental proceedings were null and void.
There is also an application before us for revocation of grant of special leave to appeal by this Court on the ground that some material 586 facts were suppressed or misrepresented for the purpose of obtaining special leave.
Although the special leave petition does not state that all the points sought to be raised by it were not argued before the Division Bench, this is not enough to merit cancellation of the special leave to appeal which was granted by this Court.
At the time of grant of special leave, the order refusing grant of certificate of fitness of the case for appeal to this Court must have been before this Court.
We are unable now to see the point on which special leave was granted.
But, that too would not, by itself, merit a revocation of special leave at this stage after hearing arguments.
We, therefore, dismiss both the appeal and the application for revocation of special leave.
Parties will bear their own costs.
P.B.R. Appeal dismissed.

summary:
After holding a departmental enquiry on certain charges of contravention of Government Servants ' Conduct Rules, the appellant was reduced in rank.
His suit for a declaration that the impugned action was void and inoperative was dismissed.
The High Court dismissed his appeal.
On appeal, it was contended that the departmental enquiry was vitiated on account of material irregularities, and that, as a result of excessive delay, between the date of hearing and delivery of judgment by the High Court, it did not deal with a number of submissions made by him and thereby caused prejudice.
Dismissing the appeal to this Court, ^ HELD: (1)(a) The question whether the appellant was given a reasonable opportunity to lead evidence and was sufficiently heard or hot is largely a question of fact.
It is only when an opportunity denied is of such a nature that the denial contravenes mandatory provision of law or a rule of natural justice that it could vitiate the whole departmental trial.
Prejudice to the Government servant from an alleged violation of a rule must be proved.[583C] (b) The plea that the appellant had been subjected to trial on allegations which had been the subject matter of previous enquiries overlooks that no charge was framed as a result of any previous enquiry.
If an enquiry was held at a particular stage, possibly to determine whether regular proceedings should be drawn up or started, it did not debar a departmental trial.
[583D] State of Assam & Anr.
vs J. N. Roy Biswas ; and R. T. Rangachari vs Secretary of State, AIR 1937 PC 27, held inapplicable.
(c) It was not shown whether any evidence which the appellant tried to produce was really wrongly excluded and at what stage and for what reasons.
All these are questions of fact which should be raised in the departmental trial.
After that if there was any patent error a writ petition lay.
[584A] (d) A suit challenging a departmental proceeding cannot be treated as an appeal from the findings in those proceedings or against a punishment inflicted upon the Government servant even if these were erroneous.
A question which could affect the result in a civil suit has to be of such a nature that it goes to the root of the jurisdiction that the conduct of the departmental trial illegally and vitiates the result.
It is only if the departmental proceeding is null and void that a plaintiff could obtain the reliefs he had asked for.
[584E F] Smt.
Ujjam Bai vs State of U.P. & Anr.
[1963] 1 S.C.R. 778 @ 835, 836, referred to.
(e) Unless a point could be raised on behalf of an appellant which is capable of vitiating the departmental proceedings there could be no declaration that the departmental proceedings were null and void.
[585H] 581 (2) The Civil Procedure Code does not provide a time limit for the period between the hearing of arguments and the delivery of a judgment.
Nevertheless, an unreasonable delay between the hearing of arguments and delivery of judgment, unless explained by exceptional or extraordinary circumstances, is highly undesirable even when written arguments were submitted.
It is not unlikely that some points which the litigant considered important might have escaped notice.
But, what is more important is that litigants must have complete confidence in the results of litigation.
This confidence tends to be shaken if there excessive delay between hearing of arguments and delivery of judgments.


judgement:
Civil Appeal No. 1599 of 1968.
Appeal by Special Leave from the Judgment and Order dated the 16th February 1968 of the Calcutta High Court in Civil Rule No. 1030 of 1967.
D. N. Mukherjee and N. R. Chaudhury for the Appellants.
Sukumar Ghosh for the Respondent.
The Judgment of the Court was delivered by GUPTA, J.
This appeal by special leave is directed against a Judgment of the Calcutta High Court setting aside in revision the finding of the trial court on the issue whether the relationship of landlord and tenant subsisted between the parties in a suit for ejectment.
The issue which arises on the interaction of two statutes, the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 and the West Bengal Premises Tenancy Act, 1956, which repeals the earlier Act but keeps it alive for proceedings pending on the date of repeal, involves the question, is the right conferred on the sub tenant by the 1956 Act of being declared a tenant directly under the superior landlord available to a sub tenant against whom a suit for ejectment was pending when that Act came into force ? The appeal turns on the answer to this question.
The material facts leading to the impugned order are these.
The respondent was a tenant of premises No. 17/1E Gopal Nagar Road, Alipore, Calcutta, and his landlord was one Jagabandhu Saha, the owner of the house, Dilip Narayan Roy Chowdhury was a sub tenant under the respondent in respect of the ground floor flat paying a monthly rent of Rs. 75/ .
The respondent instituted a suit in the Munsif 's court at Alipore on March 21, 1956 when the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 was in force, seeking to evict Roy Choudhury on the ground that he was a defaulter in payment of rent.
This Act was a temporary statute due to expire on March 31, 1956, but on that date the West Bengal Premises Tenancy Act, 1956 was brought into operation repealing the 597 temporary Act before it expired.
The material part of section 40 of the 1956 Act which repealed the 1950 Act is as follows: "Repeal and savings. (1) The West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 (in this section referred to as the said Act), is hereby repealed.
(2) Notwithstanding the repeal of the said Act: (a) any proceeding pending on the 31st day of March, 1956, may be continued, or, (b) x x x x x as if the said Act had been in force and had not been repealed or had not expired :" Section 16 of the 1956 Act confers on the sub tenant the right to become a tenant directly under the landlord.
Sub section (2) of section 16 provides inter alia that where before the commencement of this Act, the tenant, with or without the consent of the landlord, has sublet any premises either in whole or in part, the tenant and every sub tenant must give notice to the landlord of such subletting within the prescribed period.
Sub section (3) of section 16 provides that in any such case where the landlord had not consented in writing or denies that he gave oral consent, the Rent Controller on an application made to him either by the landlord or the sub tenant shall make an order declaring that the tenant 's interest in so much of the premises as has been sublet shall cease and that the sub tenant shall become a tenant directly under the landlord from the date of the order.
The Rent Controller is also required to fix the rent payable by the sub tenant to the landlord from the date of the order.
Sub tenant Roy Choudhury served a notice under section 16(2) of the 1956 Act upon the superior landlord and applied under section 16(3) for being declared a tenant directly under him.
On July 31, 1956 the Rent Controller recorded a finding on this application that Roy Choudhury was entitled to the declaration asked for overruling the objections raised by the respondent.
On February 23, 1957 the Rent Controller concluded the proceeding under section 16(3) by finally declaring that the sub tenant was a tenant directly under the superior landlord with effect from that date, and fixing the rent payable by him.
The appeal preferred by the respondent from this order was dismissed by the appellate authority.
In the meantime, on August 21, 1956 the respondent had made an application under section 14(4) of the 1950 Act in the suit for eviction which was pending.
Section 14(4) of the 1950 Act permitted the landlord to make an application in the suit for an order on the tenant to deposit month by month the rent at the rate at which it was last paid and also the arrears of rent, if any, and provided that on failure to deposit the arrears of rent or the rent for any month within the period prescribed for such deposits, the court would make an order striking out the tenant 's defence against ejectment so that the tenant would be in he same position as if he had not defended the claim to 598 ejectment.
On this application the Munsif on September 26, 1956 directed the appellant to deposit a certain sum as arrears of rent and also rent month by month at the rate of Rs. 75/ .
After the declaration of tenancy under section 16(3), Roy Choudhury was permitted to amend his written statement in the suit by adding a paragraph questioning the relationship of landlord and tenant between the respondent and himself.
It is unnecessary to refer to the various proceedings in the suit that followed, in the course of which the High Court was moved more than once by either party.
On January 24, 1965 Roy Choudhury died and the present appellants were substituted in his place in the suit as his heirs and legal representatives.
On November 1, 1965 the Munsif framed an additional issue, being issue No. 9, which was as follows: "Has the alleged relationship of landlord and tenant between the parties been determined by final orders dated 31 7 56 and 23 2 57 passed by the R. C. (Rent Controller) Calcutta in Case No. 243B of 1956 ?" The Munsif took up for consideration the application under section 14(4) and the additional issue No. 9 together and by his order dated February 20, 1967 found that the Rent Controller had jurisdiction to pass the order under section 16(3) declaring the defendant to be a direct tenant under the superior landlord, and that the relationship of landlord and tenant between the parties ceased by virtue of the order made under section 16(3).
The additional issue No. 9 was accordingly decided in favour of the defendant and the application under section 14(4) of the 1950 Act was dismissed.
The plaintiff moved the High Court in revision against this order.
The revision case was disposed of on February 16, 1968, the learned Judge maintained the order rejecting the application under section 14(4) but set aside the finding on issue No. 9 and held that "for the purposes of the present suit for ejectment there is a relationship of landlord and tenant".
The propriety of this order is challenged by the tenant defendants.
In the course of his Judgment the learned Judge recorded the following findings: (i) "The validity or the binding nature of the order under section 16(3) of the 1956 Act cannot be challenged nor can it be found in this suit to be inoperative".
(ii) The rights arising out of a valid proceeding under section 16(3) cannot be overlooked in spite of the non obstante clause in section 40 of the 1956 Act and the effect of the order under section 16(3) has to be considered in the suit.
(iii)As the proceeding under section 16(3) was started during the pendency of the suit, the principle underlying section 52 of the Transfer of Property Act should apply to this case and "the decision made in the proceeding under section 16(3) would not control the decision in the ejectment suit".
599 It thus appears that the High Court was of the view that in spite of section 40 providing that a pending proceeding would continue to be governed by the provisions of 1950 Act as if that Act had not been repealed or had not expired, the order made under section 16(3) of the 1956 Act must be given effect to.
The High Court however held that the proceeding under section 16(3) having been initiated during the pendency of the suit, the principle of lis pendens should apply and accordingly the order under section 16(3) would not govern the suit Before us, counsel for the respondent did not rely on section 52 of the Transfer of Property Act, but sought to support the decree on the ground that in view of section 40, the entire proceeding under section 16(3) was without jurisdiction.
The doctrine of lis pendens can of course have no application to this case.
Section 52 of the Transfer of Property Act forbids alienations pendente lite providing inter alia that the property forming the subject matter of a pending suit cannot be transferred or otherwise dealt with by any party to the suit so as to affect the rights of any other party under any decree or order which may be made therein, except under the authority of the court and on such terms as it may impose.
The doctrine of lis pendens means that no party to the litigation can alienate the property in dispute so as to affect the other party, and rests "upon this foundation, that it would plainly be impossible that any action or suit could be brought to a successful termination if alienations pendente lite were permitted to prevail".
[observation of Turner L. J. in Belamy vs Sabine, ; (584) quoted with approval by the Privy Council in Faiyaz Husain Khan vs Munshi Prag Narail & others, 34 I.A. 102 (105).] But a sub tenant who avails of the provisions of section 16(3) which extinguishes the tenant 's interest in the portion of the premises sublet and confers on the sub tenant the right to hold the tenancy directly under the superior landlord, cannot be said to have alienated proporty pendente lite.
Section 5 of the Transfer of Property Act defines transfer of property as an act by which a living person conveys property to another.
When the legislature in exercise of its sovereign powers regulates the relations of landlord and tenant, altering or abridging their rights, what it does is not transfer of property attracting the doctrine of lis pendens.
As stated already, counsel for the respondent put his case on the provisions of section 40 of the 1956 Act.
According to him the suit must continue to be governed by the 1950 Act even after its repeal in view of section 40, unaffected by the provisions of the 1956 Act Section 40 of the 1956 Act keeps alive a proceeding pending on the date when the 1950 Act was repealed as if it is still in force and has not been repealdd.
This however does not mean that even if the 1956 Act created a new right in favour of the sub tenant, he would be denied this right because a suit for ejectment was pending against him when the Act came into force.
'Tenant ' as defined in section 2(h) of the 1956 Act includes a person continuing in possession after the termination of his tenancy until a decree or order for eviction has been made against him.
A sub tenant is also a tenant, and when the order under section 16(3) was made no decree or order for eviction had been passed against him.
That being so, we do not see why he 600 should not be entitled to the benefit conferred by section 16(3).
The intention of the legislature, which is paramount, is clear to upgrade the subtenant and make him a tenant directly under the superior landlord.
This is a new right given to the sub tenant, and though the pending proceeding may continue to be regulated by the repealed statute in view of section 40, there is nothing in that section to suggest that the sub tenant against whom a suit was pending will be denied this additional right.
The High Court has held that the effect of the order under section 16(3) must be considered in the suit.
Thus the suit may continue in spite of the repeal of the 1950 Act, but the right acquired by the sub tenant under the 1956 Act has to be given effect to and the suit decided accordingly.
It must therefore be held that the relationship of landlord and tenant ceased between the parties on the date when the order under section 16(3) was made.
The appeal is allowed, the order of the High Court appealed from is set and that of the trial court restored.
The appellants will be entitled to their costs in this Court and in the High Court.
P.H.P. Appeal allowed.

summary:
The respondent was the tenant of the suit premises and Dilip Narayan Roy Choudhury was his sub tenant.
The tenant instituted a suit against the subtenant when the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 was in force seeking to evict the sub tenant on the ground that he was a defaulter in payment of rent.
After the suit was instituted.
West Bengal Premises Tenancy Act, 1956, was brought into operation.
Section 40 of the subsequent Act repealed the 1950 Act and further provided that not withstanding the repeal of the said Act any proceedings pending on the date of the repeal may be continued as if the said Act had been in force and had not been repealed or had not expired.
Section 16 of the 1956 Act confers on the sub tenant, on his complying with certain conditions the right to become a tenant directly under the landlord and authorise the Rent Controller to pass necessary orders directing that the sub tenant shall become tenant directly under the landlord from the date of the order.
The sub tenant adopted proceedings under section 16 of the Act against the superior landlord and in February, 1957, the Rent Controller held that the sub tenant was entitled to the declaration asked for over ruling the objections raised by the tenant.
An appeal filed by the tenant against the said order was dismissed.
Thereafter, the sub tenant amended his written statement in the suit for eviction filed by the tenant against him and pleaded that the relationship of the landlord and tenant between the tenant and the sub tenant no longer subsisted.
The Munsiff dismissed the application for eviction filed by the tenant on the ground that in view of he order passed under the 1956 Act declaring the sub tenant to be a direct tenant under the landlord the relationship of landlord and tenant between the parties ceased.
In a revision, the High Court maintained the order rejecting the application for eviction but set aside the finding that the relationship of the landlord and tenant between the tenant and the sub tenant ceased.
The High Court held that in spite of section 40 of the repealing Act, section 16(3) of the Repealing Act must be given effect to.
The High Court, however, took the view that the proceedings under section 16(3) having been initiated during the pendency of the suit the principle of lis pendens would apply and, accordingly, the order under section 16(3) would not govern the suit.
In an appeal by special leave by the heirs of the sub tenant, the counsel for the respondent did not rely on section 52 of the Transfer of Property Act but sought to support the decree on the ground that in view of section 40 of the Repealing Act the entire proceedings under section 16 was without jurisdiction.
Allowing the appeal, ^ HELD: (1) The doctrine of lis pendens can have no application to this case.
The doctrine of lis pendens means that no party to the litigation can alienate the property in dispute so as to affect the other party and rests upon the foundation that it would plainly be impossible that any action or suit could be brought to a successful termination after alienation pendente lite.
Section 596 5 of the Transfer of Property Act defines transfer of property as an act by which a living person conveys property to another.
When the Legislature in exercise of its sovereign powers regulates or alters the rights of landlord and tenant, what it does is not transfer of property attracting the doctrine of lis pendens.
[599B, C F] (2) It is true that in view of section 40 of the Repealing Act a pending proceeding may be continued as if the Repealing Act was not passed.
This, however, does not mean that even if the 1956 Act created a new right in favour of the tenant, he would be denied this right because a suit for ejectment was pending against him when the Act came into force.
The intention of the Legislature, which is paramount, is clear to upgrade the sub tenant and make him a tenant directly under the superior landlord.
A sub tenant is a tenant within the meaning of section 2(h) of the Repealing Act.
Thus, the suit must continue under the 1950 Act but the right acquired by the sub tenant under 1956 Act has to be given effect to and the suit decided accordingly.
Therefore, the relationship of landlord and tenant ceased between the parties on the date when the order under section 16 was made.
[599F H, 600B C]


judgement:
os. 621, 655 and 678 of 1955.
Under Article 32 of the Constitution for the en forcement of fundamental rights.
N.C. Chatterjee (section K. Kapur and Ganpat Rai, with him) for the petitioners.
533 M. C. Setalvad, Attorney General for India (Kan Singh and P. G. Gokhale, with him) for respondent No. 1.
K.R. Chowdhury, for Goma, Ghisa and Rama, respondents in Petition No. 655 and Dhira, respondent in petition No.678.
September 27.
The judgment of the Court was delivered by VENKATARAMA AYYAR J.
These are applications under article 32 of the Constitution by certain jagir dars of Marwar, challenging the constitutionality of sections 81 to 86 of the Marwar Land Revenue Act No. XL of 1949 (hereinafter referred to as the Act) on the ground that they infringe the fundamental rights of the petitioners under article 14, article 19(1) (f) and article 31(2) of the Constitution.
These sections provide for fixing fair and equitable rent payable by the tenants and prescribe the procedure to be followed therefor.
Section 81 of the Act provides that when any local area has been brought under settlement operations by a notification under section 64, the Settlement Officer or an Assistant Settlement Officer shall inspect every village in the local area, divide it into soil classes and assessment circles, select rentrates for the area and publish them in such manner as may be prescribed.
If objections to these proposals are received, he has to consider them, and submit his report to the Board of Revenue.
The Board has the power to sanction the proposals with or without any modifications, and it has also the power to direct further enquiry into the matters.
With a view to arriving at fair and equitable rates, the Settlement Officer is required under section 82 to have regard to the collection of rent and cesses in the nature of rent during the ten years preceding the settlement excluding such years as the Government may, by notification in the Official Gazette, declare to be abnormal the average of the prices of agricultural produce during the same period, the nature of the crops grown and the quantity of the produce and their value.
Section 82(2) provides that the rent rates shall not 534 exceed one third of, the value of the produce of unirrigated lands and one fourth of the value of the produce of irrigated lands.
Under section 84, the Settlement Officer shall determine rents whether by way of abatement, enhancement or commutation payable for all holdings in the occupation of tenants on the basis of the rates sanctioned by the Board of Revenue.
Section 86 enacts that any rent fixed by order of the Settlement Officer shall be payable from the first day of July next following the date of such order, "unless the Settlement Officer thinks fit for any reasons to direct that it shall be payable from some earlier date".
Acting under section 81 of the Act, the Settlement Officer formulated certain proposals with reference to the rent rates in the villages comprised in the jagirs of the petitioners, and they were published in the Gazette on 12th December 1953.
Objections to those rates were filed by the petitioners on the 12th January, 1954.
On 13th October 1954 the Additional Settlement Commissioner submitted his final proposals to the Settlement Officer, who forwarded the same to the Board of Revenue for sanction.
After making further enquiry, the Board passed an order on 4 12 1954 determining the rent rates payable.
Subsequent to this, an order was also passed under section 86 of the Act bringing the sanctioned rate into operation from 1 7 1954.
This order is not itself the subject of attack in these proceedings, and it cannot be, seeing that Petition No. 621 of 1954 was filed on 24th November 1954 before that order was passed, and Petitions Nos. 655 and 678 of 1954 merely repeat verbatim the allegations in Petition No. 621 of 1954.
Before us, the petitioners conceded that they were not impugning the correctness of the order passed under section 86 in so far as it gave operation to the rates of rent from 1st July, on its merits, but that they were attacking the section as bad only as a step in establishing that the scheme of the Act, of which section 86 is an integral part is, taken as a whole, an infringement of their fundamental rights under articles 14, 19 and 31(2).
We have now to consider 535 whether sections 81 to 86 of the Act are bad as infringing the above provisions of the Constitution.
The contention that sections 81 to 86 of the Act are void as being repugnant to article 14 is sought to be made out on two grounds.
It is stated firstly that the Act applies ' only to what was prior to its merger the State of Marwar, that the present State of Rajasthan comprises Marwar and 17 other States which have merged in it, and that as the Act, as it stands, is directed against the jagirdars in one area of the State and not the whole of it, it has become discriminatory and void.
This contention is clearly untenable.
What article 14 prohibits is the unequal treatment of persons similarly situated, and therefore before the petitioners can claim the protection of that article, it is incumbent on them to establish that the conditions which prevail in other areas in the State of Rajasthan are similar to those which obtain in Marwar.
But of this, there has been neither allegation nor proof.
On the contrary, it is stated by the respondents in para 10 of their statement that the tenants in the jagirs of Marwar were paying much more by way of rent and cesses than those in the Khalsa area of the State, that with a view to remove the inequality between the two classes of tenants within the State, a law was passed in 1943 providing for settlement of rent, and that again on 10 1 1947 another law was passed abolishing all cesses (lags) and fixing the maximum share of rent payable in kind.
These special features, it is argued, form sufficient justification for a separate legislation for this area, It is also stated that the other States had their own rent laws suited to their conditions.
There are no materials on which we could hold that the impugned Act is discriminatory in character, and we cannot strike it down merely on the ground that it does not apply to the whole of the State of Rajasthan.
A similar question arose for decision in Bowman vs Lewis(1).
There, some of the areas in the State of Missouri were governed by a judicial procedure diff (1) ; 68 536 erent from that which prevailed in others.
Repelling the contention that this differentiation offended the equal protection clauses of the Fourteenth Amendment, the Court observed: "Each State has the right to make political subdivisions, of its territory for municipal purposes, and to regulate their local government.
As respects the administration of justice, it may establish one system of courts for cities and another for rural districts; one system for one portion of its territory and another system for another portion.
Convenience, if not necessity, often requires this to be done, and it would seriously interfere with the power of a State to regulate its internal affairs to deny to it this right If a Mexican State should be acquired by a treaty and added to an adjoining State or part of a State in the United States, and the two should be erected into a new State, it cannot be doubted that such new State might allow the Mexican laws and judicature to continue unchanged in the one portion and the common law and its corresponding judicature in the other portion.
Such an arrangement would not be prohibited in any fair construction of the Fourteenth Amend ment.
It would not be based on any respect of persons or classes, but on municipal considerations alone and a regard to the welfare of all classes within the particular territory or jurisdiction".
This Court has also repeatedly held that classification might properly be made on territorial basis if that was germane to the purposes of the enactment.
Having regard to the fact that the conditions of tenants vary from locality to locality, we have no hesitation in holding that a tenancy legislation restricted to a portion of a State cannot be held on this ground alone to contravene article 14.
The second ground urged in support of the contention that article 14 has been infringed is that discrimination must result from the settlement of rent being taken up only with reference to portions of the 537 area to which the Act applies and not to the whole of it, because the rent rate is to be fixed on the basis of the average of the ten years preceding the settlement; and if the proceedings are started for different areas on different dates, that might result in different rates being fixed, and that would make for inequality such as is prohibited by article 14.
We are unable to agree with this,.contention.
Settlement operations can be conducted only by a specialised staff having technical knowledge and administrative experience, and it might be beyond the capacity of the State to undertake them for the whole area at one and the same time.
To accede to the contention of the petitioners would, in effect, be to prevent the States from carrying on settlement operations.
It was held by this Court in Biswambhar Singh vs The State of Orissa and other8(1) and in Thakur Amar Singhji vs State of Rajasthan(2) that a provision authorising the taking over of estates on different dates was not repugnant to article 14, and the principle of those decisions would apply to the present case as well.
The contention that the impugned provisions are in contravention of article 14 must, therefore, be rejected.
It is then contended that the provisions in question are repugnant to article 19(1) (f) of the Constitution, because they deprive landlords of their right to realise rents from the tenants freely and without hindrance, and are an encroahment on their right to hold property.
The provision in section 82 that the Settlement Officer should, in determining the average collection for the previous ten years,exclude from consideration abnormal years as notified by the Government was particularly attacked as a. device to reduce the rent payable to the landlord and an invasion of his rights to the property.
We are unable to agree with this contention.
The fundamental right which a citizen has to hold and enjoy property imports only a right to recover reasonable rent when the lands are cultivated by a tenant, and therefore a legislation whose object is to fix fair and equitable (1) ; , 845.
(2) ; , 538 rent cannot be said to invade that right.
The contention that the provision in section 82(1) (a) that abnormal years as notified in the Gazette should be excluded in determining average collections is calculated to reduce the rent, and is therefore unreasonable is unfounded, because a declaration that a year is abnormal is made not only when there are bumper crops but also when the yield is very low, and the provision is intended equally for the benefit of the tenant and of the landlord.
A provision of this kind is usual in all tenancy legislation, and there is nothing unreasonable or unfair about it.
It was next contended and this was the contention most pressed on us that section 86 is bad as it confers on the Settlement Officer a power to bring the rent rates into operation from a date earlier than ' the succeeding year and even retrospectively from a date prior to the settlement, and that such a power was repugnant to both article 19(1)(f) and article 31(2).
The argument with reference to Article 19(1)(f) is that section 86 is an encroachment on the rights of a person to hold property, and can be valid only if it falls within article 19(5), that it is only a law of 'a regulatory character that is protected by article 19 (5), that there could be regulation only with reference to rights to be exercised in future,.
and that a law giving retrospective operation is consequently outside article 19(5).
This contention rests on an assumption for which there is no basis.
The question whether a law is valid under.
Article 19 (5) can arise only when there is a violation of the fundamental right declared in article 19 (1) (f), and if the right to hold property imports, as we have held it does, only a fight to recover reasonable rent from cultivating tenants, that right cannot be held to have been invaded by a law fixing reasonable rent, even when it is retrospective in operation.
If the rent fixed is reasonable with reference to a period subsequent to the settlement, it must be reasonable for the period prior to it as well, and if the settlement is not an encroachment on the rights of the holder as regards the future and that is conceded it cannot be an encroachment as regards 539 the past.
A consideration, therefore, of the question whether a law under article 19(5) should be regulatory ' and whether a law with retrospective operation could be said to be regulatory would be wholly irrelevant for the purpose of the present controversy.
The argument in support of the contention that section 86 is repugnant to article 31(2) is that to the extent that it gives retrospective operation, it deprives the landlord of the right to rent which had accrued prior to the settlement, and that is taking property without payment of compensation.
But it is well settled that a law which regulates the relation of landlord with his tenant is not one which takes property within article 31(2), even though it has the effect of reducing his rights.
In Thakur Jagannath Baksh Singh vs United Provinces(1), the question arose for decision whether the provisions of Act XVII of 1939, United Provinces, under which the rent payable to a landlord became diminished were obnoxious to section 299(2) of the Government of India Act, 1935.
It was held by the Federal Court that they were not, and in affirming this decision on appeal, the Privy Council in Thakur Jagannath Baksh Singh vs United Provinces(2) observed: "The appellant relies on certain express provisions of the Government of India Act.
Thus he relies on section 299 of the Act, which provides that no person, shall be deprived of his property in British India save by authority of law, and that neither the Federal nor a Provincial Legislature shall have power to make any law authorising the compulsory acquisition of 'land for public purposes save on the basis of providing for the payment of compensation.
But in the present case there is no question of confiscatory legislation.
To regulate the relations of landlord and tenant and thereby diminish rights, hitherto exercised by the landlord in connection with his land, is different from compulsory acquisition of the land".
It was finally urged that section 86 in so far as it (1) [1948] 6 F.L. J. 55; A.I.R. 1948 F.C. 29.
(2) [1946] L.R. 73 I.A. 123.
540 conferred authority on the Settlement Officer to give retrospective operation to the rent rates was bad, because the exercise of that authority was left to his arbitrary and uncontrolled discretion, that the Act laid down no rules and prescribed no conditions under which the discretion had to be exercised, and that the power conferred in those terms must be held to be unconstitutional.
The decision in Thakur Raghubir Singh vs Court of Wards, Ajmer and another(1) was relied on, in support of this contention.
There, the question was as to the validity of a power conferred on the Court of Wards to take over the management of an estate "if a landlord habitually infringes the right of a. tenant".
Under the Act, the decision whether the condition aforesaid was satisfied depended on the subjective satisfaction of the Chief Commissioner., and that was final and not liable to be questioned in civil courts.
It was held that a power which could be exercised at the absolute discretion of the authority was an encroachment on the rights of a citizen to hold property under article 19(1)(f), and that it was not saved by article 19(5).
But, in the present case, section 86 of the Act expressly lays down that if a Settlement Officer decides to bring rates into operation from a date earlier than the following 1st of July, it must be for reasons.
There is no force in the contention that section 86 does not lay down under what circumstances such an order could be passed, because the very nature of the thing requires that a large discretion should be left to the authority.
Discretion which is wide is not necessarily arbitrary.
It was said that under section 233 of the Act the civil courts are debarred from enquiring into the reasonableness of the order; but that is because matters concerning revenue and settlement are within the exclusive jurisdiction of revenue courts, and under section 62 of the Act, the Board of Revenue has revisional jurisdiction over all orders passed in connection with settlement.
We think that the power conferred on the Settlement Officer to fix an earlier date for giving operation to the rent rate is reasonable and valid, (1) ; 541 and that it invades no fundamental rights of the landlord.
For the reasons given above, we must hold that the scheme embodied in sections 81 to 86 of the Act does not transgress any of the Constitutional limitations, and is valid.
In the result, the petitions are dismissed but in the circumstances, without costs.

summary:
The petitioners, who are jagirdars of Marwar, sought to impugn the constitutional validity of sections 81 to 86 of the Marwar Land Revenue Act which embody a scheme for fixing fair and equitable rents payable by cultivating tenants on the ground that they infringed their fundamental rights under articles 14, 19(1)(f) and 31(2) of the Constitution.
Their contentions were that after the merger of Marwar in the State of Rajasthan the Act had become discriminatory as it applied only to the jagirdars of Marwar and not to the entire body of jagirdars of the State of Rajasthan, that settlement of rents made with reference to different areas on different dates on the basis of previous ten years ' average of collections might result in different rates of rent and lead to inequality such as is prohibited by article 14, that the Act deprived the landlords of their right to realise rents from the tenants freely and without hindrance and invaded their right to hold property guaranteed by article 19(1)(f) of the Constitution, that the power conferred on the Settlement Officer by section 86 of the Act to enforce the rates of rent retrospectively is an invasion of their right to hold property and amounts to acquisition of property without compensation and that it confers absolute and uncontrolled discretion on the Settlement Officer and is an encroachment on the right to hold property.
Held, repelling these contentions, that article 14 only prohibits unequal treatment of persons similarly situated and a classification might properly be made on territorial basis, if that was germane to the purposes of the enactment and no tenancy legislation can be held to contravene the article solely on the ground that it does not apply to the entire State.
Before the petitioners could succeed it was 532 incumbent on them to show that conditions obtaining in other parts of the State were similar to those in Marwar and this they had failed to do.
Bowman vs Lewis ; , referred to.
That the provision in the Act for assessment of rents with reference to a portion of the area to which the Act applies is not a contravention of article 14.
To hold otherwise would be to make it impossible for any State to carry on its settlement operation.
Biswambhar Singh vs The State of Orissa and others; , , and Thakur Amar Singhji vs State of Rajasthan, ; , applied.
That the fundamental right to hold property in the case of a, landlord in respect of his tenanted lands is no more than the right to receive reasonable rents and no legislation which has for its object the settlement of fair and equitable rents can contravene article 19 (1)(f) of the Constitution even though it may give such rents retros pective operation.
That the provision in section 86 of the Act empowering the Settlement Officer to give retrospective operation to the rates of rent does not contravene article 19(1)(f) and, therefore, no question as to whether such a provision is not of a regulatory character and as such prohibited by article 19(5) can at all arise.
That it is well settled that a law which regulates the relation of a landlord with his tenant is not one which takes property within the meaning of article 31(2) even though it has the effect of reducing his rights.
Consequently, there is no contravention of article 31(2) of the Constitution.
Thakur Jagannath Baksh Singh vs United Provinces, [1943] 6 F.L.J. 55: A.I.R. 1943 F.C. 29 and Thakur Jagannath Buksh vs United Provinces, L.R. 73 I.A. 123, relied on.
That section 86 of the Act does not confer an absolute and uncon trolled discretion on the Settlement Officer and such power as it gives does not constitute an encroachment on the right to hold property within the meaning of article 19(1)(f) of the Constitution.
Thakur Baghubir Singh vs Court of Wards, Ajmer and another; , , explained and distinguished.