judgement:
Appeal No. 29 of 1966.
Appeal from the judgment and order dated April 30, 1964 of the Patna High Court in M.J.C. No. 498 of 1963.
B. C. Ghosh and K. K. Sinha, for the appellant.
section Mustafi and A. K. Nag, for respondent No. 3 P. K. Chatterjee, for respondent No. 4. 233 The Judgment of the Court was delivered by Wanchoo, C. J.
This is an appeal on a certificate granted by the Patna High Court and arises in the following circumstances.
The appellant.
Jagdish Pandey, joined as a lecturer in Ramakrishna College Madhubani in July 1948.
His appointment was approved by the University in June 1949, and on September 23, 1951 he was confirmed as a lecturer in that College.
In July 1961 the post of the Principal of Pandaul College, Pandaul fell vacant and was advertised.
The appellant was one of the applicants and was appointed after interview as the Principal of the college on January 22, 1962.
On January 24, 1962, the appellant 's appointment as Principal of the College was approved by the University.
It appears that the appointment was challenged by a writ petition before the Patna Court, but that challenge failed on July 11, 1962, when the petition was dismissed.
In the meantime, the Bihar Legislature passed the Bihar State Universities (University of Bihar, Bhagalpur and, Ranchi) (Amendment) Act, No. 13 of 1962 (hereinafter referred to as the Act) which came into force on April 21, 1962.
Section 4 thereof was in the following terms: "Certain appointments, etc., of teachers of nonGovernment affiliated colleges to be subject to Chancellor 's orders Notwithstanding anything contained in the said Act or the Magadh University Act, 1961 (Bihar Act IV of 1962) or the statutes made thereunder, or the Bihar State Universities (University of Bihar, Bhagalpur and Ranchi) Ordinance, 1962, (Bihar Ordinance No. 1 of 1962) every appointment, dismissal, removal, termination of service or reduction in rank of any teacher of a college, not belonging to the State Government, affiliated to the University established under the said Act or the Magadh University Act, 1961 (Bihar Act IV of 1962) made on or after the twenty seventh day of November, 1961 and before the first day of March, 1962, shall be subject to such order as the Chancellor of the University may, on the recommendation of the University Service Commission established under section 48A of the said Act, pass with respect thereto.
" This Act was passed to amend the Bihar State Universities (University of Bihar, Bhagalpur and Ranchi) Act, No. 14 of 1960, The reason for making the amendment as stated in the statement of objects and reasons was this.
The Bihar State Universities Act, No. 14 of 1960, was amended by Bihar Act II of 1962 and section 48 A was introduced therein.
That section provided for the establishment of a University Service Commission (hereinafter referred to as the Commission) for affiliated colleges not belonging to the State Government.
Sub section (6) of section 48 A provided that "subject to the approval of the University, appointments, dismis 234 teachres of an affiliated college not belonging to the State Government shall be made by the governing body of the college on the recommendation of the Commission.
" In effect thereafter no appointment, dismissal, etc., could be made after section 48 A came into force without the recommendation of the Commission.
This section came into force on March 1, 1962, but the report of the Joint Select Committee, which resulted in the enactment of section 48 A, was made on November 27, 1961.
The statement of objects and reasons of the Act stated that several reports had been received by Government that the Governing Bodies of affiliated colleges had made a very large number of unnecessary appointments and unwarranted removals from service in order to avoid scrutiny of such cases by the Commission.
It was to meet this situation that an Ordinance was first promulgated which made obligatory for the Governing Bodies to submit for the scrutiny of the Commission, the cases of appointments, dismissals, removals etc.
of teachers which occurred between November 27, 1961 and March 1, 1962.
The Act replaced that Ordinance.
After the Act came into force, the appellant received an order dated August 18, 1962 from the Chancellor of the University to the effect that the Chancellor had been pleased to approve, under section 4 of the Act, on the recommendation of the Commission the appointment of the appellant as Principal of the Pandaul College till November 30, 1962 or till the candidate recommended by the Commission joined, whichever was earlier.
It seems that before this, a similar order had been passed with respect to another teacher of Ramakrishna College Madhubani on May 31, 1962, and that order was challenged in the Patna High Court on the ground that the teacher in question had not been heard before the order was made and therefore the order was bad as it violated the principles of natural justice.
That case was decided by the High Court on April 23, 1963 and the order in question was struck down on the ground that it violated principles of natural justice.
Further in that case the validity of section 4 of the Act was also challenged but that question was not decided.
(See Ram Kripalu Mishra vs University of Patna)(1).
It seems that it was realised sometime in October or Novem ber, 1962 that the order of August 18, 1962 in the case of the appellant might be similarly challenged; so on November 8, 1962 the Commission gave notice to the appellant to show cause why the Commission should not recommend to the Chancellor that there was no adequate justification or reason for the Chancellor to modify the order already passed on August 18, 1962.
This was a composite notice to the appellant and several other teachers with whose cases we are not concerned.
The body of the notice shows various grounds on which the notice was issued, but it did not (1) A.I.R. 1964 Patna, 41.
235 indicate which particular ground applied to the appellant.
e must say that we should have expected a better notice than this from the Commission.
The notice should have been addressed to each teacher separately indicating the particular ground on which the notice was given as against him.
However, the appellant replied to the notice and controverted all the grounds mentioned therein, though it now appears from the final order which was passed on February 18, 1963 that the only ground that concerned him was that he was not academically qualified for appointment as Principal of the College on the date of the selection by the governing body.
The appellant seems to have been given a hearing by the Commission and eventually on February 18, 1963 the Chancellor passed another order which purported to modify the order of August 18, 1962 insofar as it related to the appellant.
The modification was that the appellant would be given a year or two to appear at the examination to enable him to obtain a second class Master 's Degree , otherwise his services would be terminated.
Thereupon the appellant filed a writ petition in the High Court challenging both the orders of August 18, 1962 and February 18, 1963.
Three main grounds were urged by the appellant in this con nection.
It was first urged that section 4 of the Act was ultra vires, as it violated article 14 of the Constitution.
Secondly, it was urged that the order of August 18, 1962 violated the principles of natural justice and it could not be modified after November 30, 1962 as it had worked itself out and there was no power of review given to the Chancellor under section 4 and further that proceedings based on the notice issued on November 8, 1962 by the Commission were a mala fide device to get over the infirmity in the order of August 18, 1962.
Thirdly, it was urged that in view of ch.
16 r. (1) of the Statutes of the University, the appellant must be deemed to have the minimum qualification for the post of the Principal and therefore the order of February 18, 1963 requiring him to appear at an examination to obtain a Second Class Master 's degree or in the alternative requiring that his services be terminated was bad.
The petition was resisted on behalf of the Chancellor and the University.
The High Court rejected all the three contentions and dismissed the petition, but granted a certificate to appeal to this Court; and.
that is how the matter has come before us.
The three points raised in the High Court have been urged before us in support of the appellant 's contention that the two orders dated August 18, 1962 and February 18, 1963 are liable to be quashed.
We shall first consider whether section 4 is ultra vires article 14 of the Constitution.
The first ground in that behalf is that the dates mentioned in section 4 were completely arbitrary and therefore there was no valid classification to uphold the validity of the section.
There is no doubt that if the dates are arbitrary, 236 section 4 would be violative of article 14, for then there would be no justification for singling out a class of teachers who were appointed or dismissed etc.
between these dates and applying section 4 to them while the rest would be out of the purview of that section.
But we are of opinion that the dates in section 4 cannot be said to be arbitrary.
We have already referred to the statement of objects and reasons which gives the reasons for the enactment of section 4.
We are entitled to look into those reasons to see what was the state of affairs when section 4.
came to be passed and whether that state of affairs would justify making a special provision for teachers appointed, dismissed etc.
between the two dates specified therein.
The reason for these two dates appears to be that a bill for the establishment of the Commission which would have the effect of curtailing the powers of the governing bodies of affiliated colleges was on the anvil of the legislature.
The report of the Joint Select Committee in that connection was made on November 27, 1961.
Act II of 1962 was passed after the report of the Joint Select Committee on January 19, 1962 and section 48 A with respect to the Commission was actually put into force from March 1, 1962.
The statement of objects and reasons also shows that irregularities had been brought to the notice of the Government as to appointments, dismissals etc.
during this period and that led to the enactment of section 4 of the Act by the legislature.
In these circumstances it cannot be said that these dates in section 4 are arbitrary.
Taking the circumstances as they were when section 4 came to be enacted and enforced, it cannot be said that teachers appointed etc.
between these two dates did not form a class that would have nexus with the object to be achieved.
In these circum stances we must hold that section 4.
cannot be struck down, on the ground that it has fixed two arbitrary dates and has visited teachers appointed, dismissed etc.
between these two dates with a differential treatment as compared to teachers appointed before November 27, 1961.
The next attack on the validity of section 4 is that it confers uncanalised powers on the Chancellor without indicating any critedon on the basis of which the power under section 4 can be exercised.
There is no doubt that if one reads section 4 literally it does appear to give uncanalised powers to the Chancellor to do what he likes on the recommendation of the Commission with respect to teachers covered by it .
We do not however think that the Legislature intended to give such an arbitrary power to the Chancellor.
We are of opinion that section 4 must be read down and if we read it down there is no reason to hold that the legislature was conferring a naked arbitrary power on the Chancellor.
It seems to us that the intention of the legislature was that all appointments, dismissals etc.
made between the two dates should be scrutinised and the scrutiny must be for the purpose of seeing that the appointments, dismissals etc., were in accordance with the University Act and the.
Statutes, Ordinances, Regulations and Rules 237 framed thereunder, both in the matter of qualifications, and in the matter of procedure prescribed for these purposes.
We do not think that the legislature intended more than that when it gave power to the Chancellor to scrutinise the appointments, dismissals, etc.
made between these two dates.
We have therefore no hesitation in reading down the section and hold that it only authorises the Chancellor to scrutinise appointments, dismissals etc.
made between these two dates for the purpose of satisfying himself that these appointments, dismissals etc., were in accordance with the University Act and the Statutes, Ordinances, Regulations or Rules made thereunder, both as to the substantive and procedural aspects thereof.
If the appointments etc. were in accordance with the University Act etc., the Chancellor would uphold them, and if they were not, the Chancellor would pass such orders as he deemed fit.
Read down this way, section 4 does not confer uncanalised power on the Chancellor; as such it is not liable to be struck down as discriminatory under article 14.
It is then urged that no provision was made in section 4 for hearing of the teacher before passing an order thereunder.
Now section 4 provides that the Chancellor will pass an order on the recommendation of the Commission.
It seems to us reasonable to hold that the Commission before making the recommendation would hear the teacher concerned, according to the rules of natural justice.
This to our mind is implicit in the section when it provides that the Commission has to make a recommendation, to the Chancellor on which the Chancellor will pass necessary orders.
If an order is passed under section 4 even though on the recommendation of the Commission but without complying with the principles of natural justice, that order would be bad and liable to be struck down as was done by the Patna High Court in Ram Kripalu Mishra vs University of Bihar(1).
But we have no difficulty in reading section 4 as requiring that the Commission before it makes its commendation must hear the teacher concerned according to principles of natural justice.
Reading the section therefore in this way and that is the only way in which it can be read we are of opinion that it cannot be struck down under article 14 of the Constitution as discriminatory.
Then it is urged that section 4 does not provide for approval by the University of the Chancellor 's order while section 48 A(6) does, and it is therefore discriminatory.
We are of opinion that section 4 was enacted, to meet a particular situation as we have already indicated above, and in that situation the approval by the University of the Chancellor 's order would be quite out of place.
Section 4 cannot be struck down as discriminatory on this ground.
We therefore read section 4 in the manner indicated above both as to the limit of the Chancellor 's power while passing an order thereunder and as to the necessity of the Commission giving a hearing (1) A.I.R. 1964 Pat.
238 to the teacher concerned before making the recommendation, and so read we are of opinion that section 4 cannot be held to be discriminatory and as such liable to be struck down under article 14 of the Constitution.
This brings us to the next point, namely, that the order of August 18, 1962, violated the principles of natural justice and was therefore bad.
It is not the case of the respondents that the appellant was heard before the said order was passed, and if that order stood by itself it would be bad as the appellant was not given a hearing before it was.
passed and the decision of the Patna High Court in Rain Kripalu Mishra(1) would apply.
What happened in this case was that at some stage it was realised that the appellant should be given a hearing before an order was passed against him under section 4.
Therefore the appellant was given a hearing by the Commission on a notice issued on November 8, 1962 to show cause.
It is true that the subsequent proceedings were in form as if they were for the review or modification of the order of August 18, 1962 and it is doubtful whether section 4 provides for review of an order once passed.
It seems to us that in substance what happened was that the order of August 18, 1962 was not given effect to when it was realised that it might be illegal and thereafter action was taken to give notice to the appellant and a hearing before passing an order under section 4.
Here again the order of February 18, 1963 is in form an order modifying the order of August 18, 1962, but in substance it should be taken as a fresh, order under section 4 after giving opportunity to the appellant to represent his case before the Commission.
The order made on February 18, 1963 therefore cannot be said to suffer from the defect that it was passed without observing the principles of na tural justice.
As for the order of August 18, 1962, it must be taken to have fallen when action was taken to give notice to the appellant on November 8, 1962 and pass a fresh order on February 18, 1963 after giving a proper hearing.
In the circumstances it is not necessary to quash the order of August 18, 1962, for it fell when further proceedings were taken after notice to the appellant.
Further as to the order of February 18, 1963 it must be treated to be a fresh order and as it is not defective on the ground that the principles of natural justice had been violated, it cannot be struck down on that ground.
This brings us to the last contention raised on behalf of the appellant.
The order of February 18, 1963 shows that the only defect that was found in the appointment of the appellant as Principal of the Pandaul College was that he was not a second class M.A.
It appears that according to chapter 16, r. (1) of the Statutes, the minimum qualification for the appointment of Principal is a second class Master 's degree and at least ten years,, (1) A.I.R. 1964 Pat.
239 teaching experience in a college of which at least seven years must be in a degree college or five years ' experience as Principal of an Intermediate College.
It is not disputed, that the appellant had ten years ' teaching experience in a college of which sever,, years were in a degree college.
But it appears that the appellant had a third class Master 's degree and therefore did not satisfy the qualification that a Principal should have a second class Master 's degree.
The appellant relies on sub r.
(6) of r. (1) which is in these terms: "Notwithstanding anything in the Article, the qualifications of a teacher already in service and confirmed before the 1st July 1952 shall be considered to be equivalent to the minimum qualifications for the post he holds.
" The appellant was confirmed before July 1, 1952.
It is therefore contended on his behalf that in view of sub r.
(6), he must be deemed to have the minimum qualification for a lecturer, which, according to sub r.
(1) is a second class Master 's degree.
Once therefore it is deemed under sub r.
(6) that he had a second class Master 's degree, it follows that that deeming must continue when he is appointed Principal for which also the minimum qualification is second class Master 's degree with certain experience.
The High Court has however held that sub r.
(6) would only mean this that the appellant had a second class Master 's degree for the purpose of the post of a lecturer in Ramakrishna College and that sub rule could not mean that for the purpose of appointment as a Principal of the Pandaul College, the appellant would be deemed to have a second class Master 's degree.
The High Court therefore held that as the appellant did not fulfil the minimum qualification for the post of a Principal, his appointment was irregular under the Statutes and the Chancellor would have the power to pass such order as he thought fit under section 4.
We are unable to accept this construction of sub r.
Rule (1) of chapter 16 of the Statutes provides for the grades, pay scales and qualifications of teachers.
This sub rule is prospective in operation meaning thereby that the minimum qualifications thereunder would be required for future appointments.
Further nothing has been brought to our notice in the Statutes to show that teachers appointed before July 1, 1952 would be liable to removal on the ground that they did not possess the minimum qualifications.
This means that sub r.
(6) was not necessary in order that teachers appointed and confirmed before July 1, 1952 who did not fulfil the minimum qualifications then being prescribed should continue in service.
Obviously those teachers would have continued in service even without sub r.
Therefore, the view of the High Court that sub r.
(6) was made for the purpose of allowing teachers with less than the minimum qualifications to continue in the post which they actually held at the time the 240 Statutes were passed cannot be accepted.
If that was the intention of sub r.
(6), we would have found its language very different It would then have provided that teachers already in service and confirmed before July 1, 1952 would continue in their present posts even though they did not fulfil the minimum qualifications.
But the language of sub r. (6) is very different.
It begins with a non obstante clause and says in effect that whatever may be the actual qualification of the teacher appointed and confirmed before July 1, 1952 that qualification will be considered to be equal to the minimum qualification for the post he holds.
The words "for the post he holds" are only descriptive and mean that if a person holds the post of a lecturer, his actual qualification will be considered to be equal to the minimum qualification of the lecturer; if he happens to hold the post of a Principal, his actual qualification will be considered to be equal to the minimum qualification required for the post of the Principal, even though in either of these cases the actual qualification is less than the minimum qualification.
The obvious intention behind sub r.
(6) was to safeguard the interest of teachers already appointed and confirmed before July 1, 1952, and that is why we find language which lays down that even though the actual qualification may be less than the minimum, that will be considered equivalent to the minimum.
Once that equivalence is established by sub r.
(6), and it is held that even though the actual qualification was less, it was equal to the minimum qualification as provided by sub r.
(1), we fall to see how that deemed qualification can be given a go by in the case of further promotion or appointment.
The appellant was a lecturer in Ramakrishna College, and though he had only a third class Master 's degree, sub r.
(6) provided that that third class Master 's degree must be treated as equivalent to the minimum qualification necessary for the lecturer 's post i.e., a second class Master 's degree.
Therefore, it must be held that from the date the sub rule came into force, the appellant, though he actually had a third class Master 's degree, must be deemed to have a second class Master 's degree, which was the minimum qualification for the lecturer 's grade.
Nothing has been pointed out to us in the Statutes which would take away this deemed qualification thereafter.
We cannot therefore agree with the High Court that when sub r.
(6) says that a teacher appointed and confirmed before July 1, 1952 would be deemed to have the minimum qualification though in fact he does not have it it only provides for this deeming so long as he held the particular post he was holding on the date the Statutes came into force.
That in our opinion is not the effect of the words "the post he holds", for these words are only descriptive and have to be there because the provision in r. (1) (1) referred to three categories, namely, lecturers, professors and principals. 'We may in this connection refer to sub r.
(5) which shows that even if in future candidates with minimum qualification are not available, the 241 A Syndicate can relax the minimum qualification, thus indicating that the minimum qualifications are not absolutely rigid.
But apart from this it appears to us that sub r.
(6) was made for the protection of teachers who were appointed and confirmed before July 1, 1952 and by this deeming provision gave them the minimum qualifications and if that was so that must be for all pur poses in future.
If this were not the interpretation of sub r.
(6) another curious result would follow inasmuch as a lecturer could be appointed a college professor for which a second class Mas ter 's degree was not made the minimum qualification under sub r.
(1) but he could not be appointed a Principal on the interpretation pressed before us on behalf of the respondents.
We should have thought that a good degree would be more necessary in the case of a professor whose main work is teaching than in the case of a principal whose main work is administrative.
However that may be, we are of opinion that sub r.
(6) is meant for the protection of teachers who were appointed and confirmed before July 1, 1952 and it confers on them a qualification by its deeming provision and that must enure to their benefit for all time in future for the purpose of promotion or appointment to a higher grade in another college.
Another curious result would follow if the interpretation accepted by the High Court is correct.
The High Court as we have pointed out above has held that sub r.
(6) give equivalence only for the particular post held by a teacher appointed and confirmed before July 1, 1952.
Suppose that a lecturer in one college who holds a third class Master 's degree and is entitled to remain as lecturer in that college, for some reason is appointed to another college after the Statutes came into force.
This would be a new appointment and such a lecturer could not be appointed in a new college because he would not have a second class Mas ter 's degree for the new appointment.
It seems to us therefore that the intention of sub r.
(6) was not that for the purpose of the particular post actually held the equivalence would prevail but no more.
We are of opinion that sub r.
(6) must be read as a protection to the teachers who were appointed and confirmed before July 1, 1952 and by fiction it gave the minimum qualification even though they may not actually have.
That minimum qualification must therefore remain with them always for the future, for nothing has been brought to our notice which takes away that minimum qualification deemed to be conferred on the teachers by sub rule (6).
We are therefore of opinion that the order dated February 18, 1963 passed by the Chancellor requiring the governing body of the Pandaul College to give the appellant a year or two to appear at an examination to enable him to obtain a second class Master 's degree, otherwise his services might be terminated, is not valid, for the appellant must be deemed to have the minimum qualification of a second class Master 's degree by 412 virtue of sub rule (6) of the Statutes and as such he was qualified A for appointment as Principal of Pandaul College.
We therefore allow the appeal, set aside the order of the High Court and allowing the writ petition quash the order of the Chancellor dated February 18, 1963 in respect of the appellant.
The appellant will get his costs from the respondent University.
R.K.P.S Appeal allowed.

summary:
The appellant was appointed as a lecturer in 1952 of a non Government College affiliated to the Bihar University and later as Principal of another college.
Both these appointments were approved by the University.
The Bihar State Universities (University of Bihar, Bhagalpur and Ranchi) (Amendment) Act 13 of 1962 came into force in April 1962, section 4 of which provided that every appointment, dismissal, etc., of any teacher of a college not belonging to the State Government affiliated to the University made after the 27th November, 1961 and before 1st March, 1962 shall be subject to such order as the Chancellor of the University, on the recommendation of the University Service Commission, may pass.
Thereafter, the appellant received an order dated August 8, 1962, from the Chancellor to the effect that he had been pleased to approve under section 4 of the Act, on the recommendation of the Commission, the appointment of the appellant as Principal till November 30, 1962 or till the candidate recommended by the Commission joined, whichever was earlier.
Subsequently, as ' it was realised that the order of August 18.
1962 Might be successfully challenged on the ground that the appellant had not been given an opportunity for a hearing, the Commission gave the appellant a show cause notice on November 8, 1962 and after he was given a hearing the Chancellor passed another order on February 18, 1963 which purported to modify the order of August 18, 1962; the modification was to the effect that the appellant would be given a year or two to sit for an examination and obtain a second class Master 's degree which was the minimum qualification for the post of Principal, failing which his services would be terminated.
The appellant filed a writ petition in the High Court challenging both the orders of August 18, 1962 and February 18, 1963 on the grounds, inter alia; (i) that under sub rule (6) of Rule (1) of Chapter 16 of the Statutes of the University, which provided that notwithstanding any other requirements the qualifications of a teacher already in service and confirmed before the 1st July, 1962, shall be considered to be equivalent to the minimum qualifications for the post he holds, the appellant must be deemed to have the minimum qualifications for a lecturer i.e. a Second Class MaSter 's degree.
and that this deeming would continue when he was appointed Pricipal for which also the minimum qualification was a Second Class Master 's degree with certain experience; (ii) that section 4 of the Act was violative of article 14 of the Constitution.
and (iii) that the order of August 18, 1962 violated the principles of natural justice and it could not be modified after November 30, 1962 as it had worked itself out 231 232 and there was no power of review given to the Chancellor under section 4.
The High Court dismissed the petition.
On appeal to this Court, HELD: allowing the appeal, (i) The Chancellor 's order of February 18, 1963 giving the appellant time to appear at an examination to enable him to obtain a second class Master 's degree failing which his services would be terminated was invalid.
The appellant must be deemed to have the minimum qualifica tion of a second class Master 's degree by virtue of sub rule (6) of the Statutes and as such he was qualified for appointment as Principal.
Sub r.
(6) must be read as a protection to the teachers who were appointed and confirmed before July 1, 1952 and by fiction it gave them the minimum qualification even though they may not actually have it.
That minimum qualification must therefore remain with them always for the future.
for there was nothing to show that it was taken away.
[241G 242A].
(ii) Section 4 was not discriminatory and violative of article 14 of the Constitution on the ground that it fixed two arbitrary dates and had visited teachers appointed, dismissed etc.
between these two dates with a differential treatment as compared to teachers appointed before November 27, 1961.
The report of the Joint Select Committee recommending the establishment of the University Service Commission which would have the effect of curtailing the powers of the governing bodies of affiliated colleges was published on November 27, 1961 and after the passing of Act II of 1962, section 48 A with respect to the Commission was actually put into force from March 1, 17962.
Many irregularities as to appointments, dismissals etc., during this period were brought to the notice of the government and this led to the enactment of section 4 of the Act.
It cannot therefore be said that teachers appointed etc.
between these two dates did not form a class that would have a nexus with the object to be achieved.
[236B F].
Furthermore, section 4 only authorises the Chancellor to scrutinise appointments.
dismissals etc.
made between these two dates for the purpose of satisfying himself that these were in accordance with the University Act and the Statutes, etc.
Read this way, section 4 cannot be said to confer uncanalised power on the Chancellor.
[237A C].
Although section 4 makes no provision for giving the teacher a hearing before passing an order thereunder, it must be read as requiring that the Commission must act according to principles of natural justice and must hear the teacher concerned before making its recommendation.
[237 D E].
(iii) The order of August 18, 1962 must be taken to have fallen when action was taken to give notice to the appellant on November 8, 1962 and a fresh order passed on February 18. 1963.
The latter order must be treated as a fresh order which was passed after giving the appellant a hearing and which was not therefore defective on the round that principles of natural justice had been violated.
[238G].


judgement:
Appeals Nos. 147 & 148 of 1966.
Appeals from the judgment and decree dated November 15, 1960 of the Patna High Court in Appeal from Original Decree No. 212 of 1961.
D. P. Singh, K. M. K. Nair and section P. Singh, for the appel lants (in C.A. No. 147 of 1966) and respondent No. 2 (in C.A. No. 148 of 1966).
A. K. Sen, K. K. Sinha and R. P. Katriar, for the appellant (in C.A. No. 148 of 1966).
section T. Desai, R. Chaudhuri, P. K. Chatterjee and Arun Chandra Mitra, for respondent No. 1 (in both the appeals).
The Judgment of the Court was delivered by Shah, J.
Subodh Gopal Bose hereinafter called 'the plaintiff ' commenced an action in the Court of the Subordinate Judge, Sasaram, against four defendants the State of Bihar, the Collector of Shahabad, the Additional Sub Divisional Officer Sasaram, and Dalmia Jain & Company Ltd.
, for a decree declaring that he was entitled to quarry limestone for trade purposes from the Murli Hills described in the Schedule annexed to the plaint, and for an injunction restraining the defendants from dispossessing the plaintiff or granting, a lease of the land to any other person.
In the Schedule, the two properties in respect of which relief was claimed were: (i) the Upper Murli Hill admeasuring 137 acres together with subsoil and mineral rights situate in pargana Rohtas bearing Touzi No. 4769 Tahsil Circle Sasaram, and (ii) the Lower Murli Hill comprising an area of 250 bighas within the Banskati Mahal together with the surface, subsoil and mineral rights situate in pargana Rohtas, Touzi No. 4771 Tahsil Circle Sasaram.
The trial Court dismissed the suit.
In appeal the High Court of Patna modified the decree passed by the trial Court and declared that the plaintiff was entitled to quarry limestone for trade purposes from the Lower Murli 315 Hill, "subject to the right which the owner of the Banskati Mahal had therein as set out in the judgment", and restrained the defendants by a permanent injunction from dispossessing the plaintiff from the Lower Murli Hill described in the Schedule annexed to the plaint.
With certificate granted by the High Court, the State of Bihar and the Dalmia Jain and Company Ltd. have separately appealed.
By his plaint the plaintiff claimed that he was a tenant in possession of 250 bighas of land of the "Lower Murli Hill" within the Banskati Mahal and that he was in possession of the Upper Murli Hill as the local agent of the Kuchwar Company which held lease$ for twenty years from April 1, 1928 to March 31, 1948, for quarrying limestone and that under the covenant for renewal in the said leases, the Kuchwar Company had remained in possession of the upper Murli Hill and the State of Bihar had accepted rent from the Company and had otherwise assented to the Company remaining in possession.
The plaintiff also claimed that by immemorial custom and usage recognized by the survey authorities the plaintiff as a tenant of land within the Banskati Mahal had a right to quarry and remove limestone for trade purposes.
The Court of First Instance held that at the date of the suit, the plaintiff was in occupation of 250 bighas of land in the Lower Murli Hill, but he was proved to have derived tenancy rights from the Zamindar only in respect of plot No. 168 of Baknaur and plots Nos. 42, 128, 130 and 44 of Samahuta.
The Court further held that 32.50 acres out of plot No. 44 of Samahuta were acquired for the Dehri Rohtas Light Railway Company and the plaintiff 's right derived from the Zamindar was pro tanto extinguished.
The Court also held that the lease in favour of the Kuchwar Company was not renewed, that the customary right to excavate minerals for trade purposes claimed by the plaintiff in the Lower Murli Hill was not proved, that the minerals in the Lower and Upper Murli Hill were vested in the State of Bihar and the plaintiff was merely a licensee from the State in respect of the Upper Murli Hill and was not a tenant holding over.
In appeal to the High Court of Patna the claim to excavate minerals from the Upper Murli Hill was not pressed by the plaintiff.
It was also conceded by the plaintiff that he was, as found by the trial Court, a tenant from the Zamindar only of five plots one in Baknaur and the other four in Samahuta.
The finding that at the date of the suit, the plaintiff was in occupation of 250 bighas of land was not challenged on behalf of the defendants.
In the view of the High Court the right to the minerals in the Lower Murli Hill vested in the Zamindar and not in the State, and the Banskati right was merely an incorporeal right to levy tax on the removal of "various spontaneous products and minerals, and did not extend to a right of ownership in the products and.
the minerals.
" The High Court also held that the custom pleaded by the plaintiff of the right to take for trade purposes limestone from the quarries within the Banskati Mahal was prov 316 ed.
The High Court confirmed the decree passed by the trial Court insofar as it related to the claim to excavate, limestone from the Upper Murli Hill and decreed the claim for a declaration that the plaintiff had the right to quarry limestone and manufacture lime from the Lower Murli Hill and to carry on trade in limestone, "subject to the right which the owner of the Banskati Mahal had of levying duty on the products removed", and for an injunction restraining the defendants from interfering with the plaintiffs possession of the Lower Murli Hill.
[His Lordship after discussing the evidence, held that "It is sufficient to record that there is no evidence on the record of specific instances of the tenants of the villages having ever exercised the right to excavate limestone from the slopes of the Lower Murli Hill for domestic, agricultural or trade purposes" and proceeded]: The High Court placed very strong reliance upon the entries in the Custom Sheet prepared under the Bihar Tenancy Act, 1885.
Section 102 of the Act, provides, inter alia.
"Where an order is made under section 101, the particulars to be recorded shall be specified in the order, and may include, either without or in addition to other particulars, some or all of the following, namely: . . . . . . (h) the special conditions and incidents, if any, of the tenancy.
" At the Cadastral Survey which was completed in 1913, a record of customs and practices was prepared.
Exhibits 11, 11 (a) and 11 (b) are the "Custom Sheets" in respect of the three villages Baknaur, Samahuta and Murli Hill (Upper Murli Hill).
In respect of the villages Baknaur and Upper Murli Hill the Custom Sheets are in the form of questions and answers.
Questions 12 & 13 and the answers thereto in the Custom Sheet of Baknaur may be set out: "12.
Whether or not the rai On obtaining free pass they yats have any right to can bring (stone) for construc take away stone, if there tion of house and well.
is one, what is that? 13.Whether the raiyats have They can prepare lime for any right to take away cultivation work from the forests lime, lac, or any other in the Mahal.
Nothing is forest product.
If they realised for it.
If they pre have one, what is that? pare lime for sale purposes, fee is realised according to Schedule vide Memo.
No. 270 dated 14 12 1904; and lac jungle is made settlement.
" By the Schedule of fees, "stone chips" were chargeable at rates varying between /4/ 4 and /1/1 per ton and big stones for construction of houses were chargeable at the rate of Rs. 1/2/ per hundred.
In Ext.
II (b) relating to the Upper Murli Hill in answer to question No. 12 it was recorded that the Hill "has been given in B settlement i.e. in thika: " only the tenants can get stone chips from the Hill.
In answer to Question No. 13 it was recorded that "the 317 basti is unpopulated: the Hill has been let out in settlement: the people of the village cannot prepare lime from the Hill of this Mauza, but they can prepare lime from the Hill of other Mauzas of this Mahal for cultivation purposes.
" In Ext. 11(a) which relates to the village Samahuta, the relevant entries which are in narrative form are as follows: "The residents take away stones for constructing houses and wells and prepare lime for their personal use without paying any fee and for sale they pay fees according to the rates entered in the Schedule.
Thika settlement is made in respect of lac.
" Relying upon these entries the High Court held that the right to trade in limestone was vested by custom in the tenants in the Banskati Mahal.
We are unable to accept this interpretation of the Custom Sheets. 'The record is merely a catalogue of practices and privileges of the tenants in the villages within the Banskati Mahal,there is nothing to show that it was recorded that the practices and privileges were exercised as a matter of right by the villagers.
Un doubtedly the record has presumptive value.
But the revenue authorities were concerned to ascertain the existing state of affairs and not to determine whether the practices and privileges were ancient, certain, reasonable and continuous.
As evidence of local custom, the custom sheets have therefore not much value.
There are again inherent indications in the custom sheets that the exercise of the privileges recorded therein was permissive.
Harbans Rai descenent of Raja Shah Mal had imposed duties on the removal of forest produce and the minerals.
There is no record of the nature of the duties imposed in the days of Harbans Rai and of exemptions, if any.
The entries in the custom sheets indicate that the forest produce and minerals taken by the tenants in the village were subject to certain duties.
Imposition of duties upon forest produce and minerals was evidently in exercise of signorial rights.
In the custom sheets of the villages Baknaur and Samahuta it is recorded that the tenants "take minerals and forest produce" for domestic and agricultural purposes, but if they prepare lime for sale they have to pay duties.
Recognition of the practice of taking stone and forest produce for domestic purposes without payment of duty is easily explained.
In a predominantly agricultural commuinity it would have been regarded as churlish, for the Zamindar who was for all practical purposes the local representative of the Ruler to deny to the tenants of lands the facility of taking articles of small value for domestic or agricultural purposes.
Acceptance of liability to pay duties on forest produce and minerals taken for purposes other than domestic or agricul tural, is destructive of the claim of a right to take the articles: it indicates that the removal was permissive being only on payment of duty.
The custom sheet of the Upper Murli Hill recites that because the Hill had been let out the tenants cannot prepare lime from 318 the Hill of the Mauza lends strong support to that view.
Again the recitals in Exts.
11 and 11 (a) that a thika settlement was made in respect of "lac" also leads to that inference: it clearly implies that the tenants could not take "lac" from the forest because of the grant of a thika contract.
The evidence therefore shows that even the practices recorded in the custom sheets were followed so long as the Government had not disposed of the corpus in favour of the contractors.
The duties set out in the Schedules to the Custom Sheets are also not shown to be permanently fixed.
The Schedule of fees mentioned in the Custom Sheets was apparently published on December 14, 1904, and there is no evidence that it was merely a record of fees levied since the days of Harbans Rai.
From the answer to question No. 4 in the Custom Sheets it appears that the Government had treated the forest as a protected forest under a notification dated June 30, 1909, and that implies that restrictions were imposed upon the taking and disposal of forest produce.
The report dated December 17, 1909 by Jagdum Sahai a Revenue Officer that "as the custom throughout the Rohtas Pargana has been that the Zamindars and the cultivators and raiyats in all the villages in which the Government had its Banskati rights could take free of Government duty any quantity of timber, lime and stone etc.
for their domestic and agricultural purposes within the limits of their own village, it was difficult to prevent or check the people of Samahuta Gurmain, and Baknaur from entering into the pure Khas Mahal portion of this Hill to which they had no right for want of distinct marks of its boundary", does not even by implication support a right to take forest produce and limestone for trade purposes.
The record of customs and practices is in respect of Banskati Mahal and the area which originally extended over 500 sq.
miles, was later reduced to 200 sq.
miles, and consisted of 108 villages.
The Custom Sheets recorded that the villagers were accustomed to take dry wood, timber and bamboo for agricultural purposes Ind for construction of houses and that was permitted free of charge.
Assuming that a customary right in that behalf is established, removal of forest produce for other purposes with permits and on payment of duty fixed by the authorities cannot be said to be in exercise of a right.
The conditions of obtaining permit and payment of fee for removal of the forest produce and limestone for purposes other than domestic and agricultural indicate that the removal was not as of right, but depended upon the sanction of the authorities in whom the right to the Banskati was vested.
In Ext.
11 (a) the privilege recorded is of "residents" to take away stones for constructing houses and wells and prepare lime for their personal use without paying any fee, and for sale they had to pay fees according to the rates entered in the Schedule.
Granting that the expression "residents" means tenants, if the privilege to take forest produce and stone is being subject to conditions of obtaining permits and payment of fee it cannot be regarded as a right enforceable against the State.
319 In the plained it was it was claimed that by immemorial customs and usage, the tenants in the Banskati Mahal had a right to quarry and remove limestone and manufacture lime from the quarries and hills within the Mahal.
The plea apparently was that all tenants within the Banskati Mahal had the right to quarry and remove limestone and manufacture lime from all the limestone quarries and Hills within the Mahal and to carry on trade therein.
Counsel for the plaintiff in this Court did not press for acceptance of this somewhat audacious claim and conceded that the right which the plaintiff merely claimed, notwithstanding the unguarded phraseology used in the plaint, was that: a tenant of a village within Banskati Mahal is "entitled under customary law to carry on quarrying operations for trade purposes on any forest (waste land) of the village irrespective of whether" he is "a tenant in respect of such forest land or not.
" Counsel said that the right claimed by the plaintiff is exercisable only by tenants in the quarries and hills in their village and belonging to the Zamindar and not in other villages of the Banskati Mahal.
This case was not pleaded in the plaint.
Even if it be assumed that the plaintiff intended to set up a right not as extensive as it was pleaded, and intended to restrict it only to the quarries and hills of the Zamindar in the village in which the tenant claiming the right resided, in our judgment, a customary right to quarry stone out of the Lower Murli Hill and to manufacture lime from limestone for trade proposes is not supported by the customsheets.
We are not concerned in this case with the privilege of the tenants of taking for agricultural or domestic purposes pieces of stones either lying on the surface or even underneath the surface.
Whether that would amount to a customary right enforceable against the owner of the surface and the minerals is a matter on which we do not feel called upon to express any opinion.
The privilege of taking limestone for domestic and agricultural purposes is one privilege : the privilege of taking limestone for manufac turing lime by an agriculturist, even if it be for sale, with his primitive methods is another privilege, and the privilege of commercial exploitation of more than a hundred thousand tons 'of limestone a year to be extracted out of the Lower Murli Hill with the aid of machinery is quite a different privilege and even the most liberal interpretation of the custom sheets will not be evidence of the exercise or grant of the last privilege.
Therefore, the customary right pleaded in the plaint that every tenant of any land covered by the Banskati Mahal was entitled to take limestone out of any quarry in any hill in Banskati Mahal and to trade in stone or lime manufactured out of the limestone is not supported by instances 320 of exercise of such right and is not supported by the entries in the Custom Sheets.
The entries in the Custom Sheets contain on the other hand strong indications to the contrary.
Even granting that the Custom Sheets recorded a local custom that the tenants in the villages of Baknaur and Samahuta excavated stones from the hills near their villages for purposes of trade, a claim of right founded on that custom must be held unreasonable and incapable of enforcement by the sanction of a Court 's verdict.
The right exercisable by the tenants in the villages to excavate limestone for trade purposes was not claimed by the plaintiff as an easement: it could not be so claimed, for it is not a right which the owner or occupier of certain land possesses as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in, or upon, or in respect of, certain other land not his own: Section 4 of the Indian Easements Act, 5 of 1882.
The Indian Easements Act no doubt makes no distinction for the purpose of acquisition by prescription between the right of easement strictly so called and the right which under the English common law is called a profit a prendre.
By the Explanation to section 4 the expression "to do something" includes removal and appropriation by the dominant owner, for the beneficial enjoyment of the dominant heritage, of any part of the soil of the servient heritage, or anything growing or subsisting thereon.
A profit a prendre is therefore included in the definition of "easement" in section 4 of the Indian Easements Act.
But an easement being a right which is super added to the ordinary common law incidents of the ownership of a dominant tenement, and which connotes a corresponding burden on a servient tenement, can only be created by grant, or by statute.
An apparent exception to this rule is a customary easement.
But a customary easement is not an easement in the true sense of that expression.
It is not annexed to the ownership of a dominant tenement, and it is not exercisable for the more beneficial enjoyment of the dominant tenement: it is recognised and enforced as a part of the common law of the locality where it obtains.
A customary easement arises in favour of an indeterminate class of persons such as residents of a locality or members of a certain community, and though not necessarily annexed to the ownership of land, it is enforceable as a right to do and continue to do something upon land or as a right to prevent and continue to prevent something being done upon land.
Sanction for its enforceability being in custom, the right must satisfy all the tests which a local custom for recognition by courts must satisfy.
A profit a prendre in gross that is a right exercisable by an indeterminate body of persons to take something from the land of others, but not for the more beneficial enjoyment of a dominant tenement is not an easement within the meaning of the Easements 321 Act.
To the claim of such a right, the Easements Act has no application.
Section 2 of the Easements Act expressly provides that nothing in the Act contained, shall be deemed to affect, inter alia, to derogate from any customary or other right (not being a license) in or over immovable property which the Government, the public or any person may possess irrespective of other immovable property.
A claim in the nature of a profit a prendre operating in favour of an indeterminate class of persons and arising out of a local custom may be held enforceable only if it satisfies the tests of a valid custom.
A custom is a usage by virtue of which a class of persons belonging to a defined section in a locality are entitled to exercise specific rights against certain other persons or property in the same locality.
To the extent to which it is inconsistent with the general law, undoubtedly the custom prevails.
But to be valid, a custom must be ancient, certain and reasonable, and being in derogation of the general rules of law must be construed strictly.
A right in the nature of a profit a prendre in the exercise of which the residents of locality are entitled to excavate stones for trade purposes would ex facie be unreasonable because the exercise of such a right ordinarily tends to the complete destruction of the subject matter of the profit.
It is said in Halsbury 's Laws of England, 3rd Edn.
11, article 324 at p. 173: "If a right in alieno solo amounts to a profit a prendre it cannot be claimed under an alleged custom; for no profit a prendre and therefore no right of common can be claimed by custom except in certain mining localities; nor can there be a right to a profit a prendre in an undefined and fluctuating body of persons.
" That view is supported by a considerable body of authority.
In Lord Rivers vs Adams (1) it was held that the right claimed by inhabitants of a parish to cut and carry away for use as fuel in their own houses fagots or haskets of the under wood growing upon a common belonging to the lord of the manor is a right to a profit a prendre in the soil of another: such a right cannot exist by custom, prescription, or grant, unless it be a Crown grant which incorporates the inhabitants.
The House of Lords in Harris and Another vs Earl of Chesterfield and Another(2) held that a prescription in a que estate for a profit a prendre in alieno solo without stint and for commercial purposes is unknown to the law.
In the case of Harris and Another(2) the freeholders in parishes adjoining the river Wye were in the habit of fishing a non tidal portion of the river for centuries, openly, continuously, as of right and without interruption, not merely for sport or pleasure, but commercially in order to sell the fish and make a living by it.
The riparian proprietors claiming to be owners of the bed of the river brought an action of trespass against the freeholders for (1) L.R. 3 exhibit Div.
(2) 322 fishing.
It was held by a majority of the House of Lords that the legal origin for the right claimed by the freeholders could not be presumed and that the action by the plaintiffs was maintainable.
In Lutchhmeeput Singh vs Sadaulla Nushyo and Others(1) a Division Bench of the Calcutta High Court accepted the prin ciple in the case of Lord Rivers vs Adams(2).
In that case the plaintiff sought to restrain the defendants from fishing in certain bhils belonging to his Zamindar.
The defendants pleaded inter alia that they had a prescriptive right to fish in the bhils, under a custom, according to which all the inhabitants of the Zamindari had the right of fishing.
It was held that no prescriptive right of fishery had been acquired under section 26 of the Limitation Act and that the custom alleged could not, on the ground that it was un reasonable, be treated as valid.
Counsel for the plaintiff contended that the present case falls within the principle enunciated by the House of Lords in Henry Goodman vs The Mayor and Free Burgesses of the Borough of Saltash(3).
The facts in Henry Goodman 's case(3) were peculiar.
A prescriptive right to a several oyster fishery in a navigable tidal river was proved to have been exercised from time immemorial by a borough corporation and its lessees without any qualification except that the free inhabitants of ancient tenements in the borough had from times immemorial without interruption, and claiming as of right, exercised the privilege of dredging for oysters in the locus in quo from the 2nd of February to Easter Eve in each year, and of catching and carrying away the same without stint for sale and otherwise.
This usage of the inhabitants tended to the destruction of the fishery, and if continued would destroy it.
It was held by the House of Lords (Lord Blackburn dissenting) that the claim of the inhabitants was not to a profit a prendre in alieno solo that a lawful origin for the usage ought to be presumed if reasonably possible; and that the presumption which ought to be drawn.
as reasonable in law and probable in fact, was that the original grant to the corporation was subject to a trust or condition in favour of the free inhabitants of ancient tenements in the borough in accordance with the usage.
The case came before the Court of Common Pleas, as a special case on facts stated, that the mayor and corporation of Saltash as a corporation was the owner by prescriptive right of the bed and soil and several oyster fishery in the estuary of the River Tamar, and that the free inhabitants of the ancient tenements in the borough of Saltash had from time immemorial, without interruption and claiming as of right, exercised the privilege of dredging for oysters in the river.
The House was called upon to reconcile two conflicting rights of the corporation to the several fishery and of the free inhabitants to take oysters.
The House reconciled the rights by (1) I.L.R. Cal. 698.
(2) L.R. 3 exhibit Div.
(3) 7 A.C, 633 323 holding that the grant to the corporation of the soil and the oyster fishery, which must be taken to have been a grant before legal memory, was made by the Crown or the Duchy of Cornwall subject to a trust or condition binding on the grantee, the corporation, to allow the owners of ancient tenements within the borough the limited right to dredge for oysters notwithstanding that the right might lead to the destruction of the fishery.
In Harris vs Earl of Chesterfield(1), Lord Ashbourne observed at p. 633, after referring to the judgment in Henry Goodman 's case(2) that: "It was a splendid effort of equitable imagination in furtherance of justice.
The conception was reasonably possible and that sufficed.
" In a recent case before the Court of Appeal in England: Alfred F. Beckett Ltd. vs Lyons(3) it was observed by Harman and Winn L.JJ., that the claim made on behalf of the inhabitants of the County Palatine of Durham that they were entitled by custom of the locality to collect sea borne coal from the foreshore being a profit a prendre, a fluctuating body such as the inhabitants of a county could not acquire by custom a right of that nature.
Counsel for the plaintiff also relied upon the observations made by Farwell, J., in Mercer vs Denne(4) at p. 557, that the period for determining whether a custom is reasonable or not is its inception.
In Mercer 's case(4) fishermen who were inhabitants of the parish Walves were accustomed to spread their nets to dry on the land of a private owner at all times seasonable for fishing.
In an action on behalf of the firshermen of the parish for a declaration of right in terms 'of the custom and an injunction restraining the owner of the land from building on or dealing with the land so as to disturb the right of the fishermen, it was urged by the defendant that the, custom was unreasonable, because the sea may recede for a mile or more, and it was impossible to sup pose that any such extent of ground could ever have been intended to be appropriated to such a custom.
Farwell, J., observed that as the event had not happened for upwards of 700 years, he could not see the unreasonableness of it.
He also observed that the period for ascertaining whether a custom is reasonable or not is its inception.
Counsel for the plaintiff relying upon those observations submitted that if the custom in its inception was unreasonable, a more extensive burden imposed by the exercise of the custom by the passage of time does not make it unreasonable.
It is difficult in the very nature of things to ascertain, especially under the English law where proof by immemorial user must date back to the reign of Richard 1, i.e. 1,189 A.D., the conditions existing at the inception of a custom, assuming that one can trace its inception.
It is (1) (2) 7 A.C. 633.
(3) (4) , 557.
324 however, unnecessary to dilate upon that matter in this appeal; if by the exercise of a customary right in favour of an indefinite body of persons the property which is the subject matter of the profit a prendre is in danger of being destroyed the customary right will not be recognised: Arjun Kaibarta vs Manoranjan De Bhoumick(1).
Counsel for the plaintiff contended that the Court may ignore the exaggerated claim appearing from the averments in the plaint and declare, relying upon the custom sheets, a right to excavate limestone and to utilise it for trade purposes limited to the tenants in the two villages.
We are unable to accede to that request.
In the present case the right to take "spontaneous produce of forest and minerals" for domestic or agricultural purposes by the tenants is not in issue.
What is in issue is the right claimable by all the tenants of the two villages even on the restricted interpretation of the claim set up by counsel for the plaintiff to excavate stone from all lands in the, village for trade purposes by installing machinery.
Such a custom would, if exercised in its amplitude as claimed, may lead to breaches of the peace, for it would be open to all tenants to claim to work any quarry simultaneously for trade purposes, and may also tend to the destruction of the subjectmatter.
Such a custom would be unreasonable.
The High Court was, in our judgment, in error in holding that the plaintiff had established the custom pleaded by him or that it was reasonable.
The plaintiff had claimed in the plaint that he was at the date of the suit in possession of 250 bighas of land in the Lower Murli Hill.
The trial Court held that the plaintiff established tenancy rights in respect of only five plots of land from the Zamindar plot No. 168 in village Baknaur, and four Plots Nos.
42. 44, 128 and 130 in village Samahuta.
It does not appear that this finding was challenged before the High Court.
It is true that the plaintiff claimed that he was in possession at the date of the suit of 250 bighas in the two villages of Baknaur and Samahuta and it was so found by the trial Court and the finding was not challenged before the High Court either by the State or by the Dalmia Jain & Co. Ltd. But that claim of possession was apparently founded on the plea that the plaintiff was the representative of the tenant holding over under the leases granted by the State of Bihar to the Kuchwar Company.
It was held that the plaintiff 's occupation of the lands was not as a tenant holding over, but was merely permissive so long as no final decision was made by the Government of Bihar on the application by the Kuchwar Company for renewal of the leases which had expired.
After the Government decided not to grant renewal of the leases, the plaintiff had no right as an agent of the Kuchwar Company to (1) I.L.R. , 325 remain in occupation of the lands other than those in which he had leasehold interest derived from the Zamindar.
Counsel for the plaintiff has therefore restricted his claim to an injunction in respect of the land in which he establishes his interest as a tenant from the Zamindar.
The claim of the plaintiff to a declaration in respect of the area of 32.50 acres of land out of plot No. 44 of Samahuta which was acquired for the Dehri Rohtas Light Railway Company between the years 1912 and 1917 remains to be considered.
The right of the Zamindar in the land together with all encumbrances in the land acquired was extinguished when possession was taken by the State in exercise of the authority of the Land Acquisition Act.
Thereafter no one could claim in that land title derived from the Zamindar.
30.933 acres out of the land after it was transferred by the acquiring authority to the Railway was leased out to the Kuchwar Company and under a grant from the Kuchwar Company the plaintiff obtained the leasehold rights.
The lease granted by the Dehri Rohtas Light Railway Company to Kuchwar Company was in the first instance for one year, and determinable by notice expiring with the end of the year.
It was the case of the State and of Dalmia Jain & Company Ltd. that by a notice served by the Dehri Rohtas Light Railway Company upon the Kuchwar Company the lease was determined.
The plaintiff contended at the trial that the notice was not received by the Kuchwar Company and therefore there was no determination of the lease.
Manifestly the plaintiff cannot seek to enforce his right to the land acquired from the Dehri Rohtas Light Railway Company as a tenant from the Zamindar, and at the date of the suit the plaintiff had no right in the land, for the conveyance by the Kuchwar Company in favour of the plaintiff was executed several months after the date of the suit.
Neither the Kuchwar Company nor the Dehri Rohtas Light Railway Company is on the record, and it would be impossible in the circumstances to record any finding on the question whether the lease was terminated.
But since the right of the Company was not transferred to the plaintiff before the date of the suit, his claim for a declaration of his right and for injunction restraining the defendants from interfering with his possession cannot be sustained. 'The plaintiff as a tenant of the surface rights of the five plots of land in villages Baknaur and Samahuta but excluding the area acquired for the Dehri Rohtas Light Railway Company is however entitled to protect his possession against unauthorised disturbance.
We accordingly modify the decree passed by the High Court and declare that the plaintiff has no right by custom to excavate limestone for trade purposes out of the slopes of the Lower Murli Hill or from any other land of the villages in Baknaur and Samahuta for trade purposes.
The decree passed in favour of the plaintiff restraining the State of Bihar, its agents and servants, and the 326 Dalmia Jain & Company Ltd. from interfering with the plaintiff 's possession is maintained in respect of plot No. 168 of Baknaur village and plots Nos. 42, 128, 130 and 44 (excluding the land acquired for the Dehri Rohtas Light Railway Company) of the village Samahuta so long as the tenancy rights vested in the plaintiff are not lawfully determined.
The appeals will accordingly be partially allowed.
In these appeals the plaintiff claimed primarily to enforce his customary right to take valuable minerals from the Lower Murli Hill, and he has failed to establish that right.
The plaintiff will therefore pay the costs to the State of Bihar and the Dalmia Jain & Company Ltd. throughout.
One hearing fee, in the two appeals in this Court.
G.C. Appeals allowed in part.

dataset_name: IN-Abs

summary:
Respondent No. 1 acquired tenancy rights in five plots in the villages of Biknaur and Samahuta situated in the area known as Lower Murli Hill in District Shahabad, Bihar.
In 1949 he filed a plaint in the Court of the Subordinate Judge Sasaram, against the State of Bihar and others, claiming inter alia that as a tenant he had a customary right to quarry limestone for trade purposes from the Lower Murli Hill.
The claim was based mainly on certain entries in the Custom sheets prepared at the time of the Cadastral Survey in 1913 under section 102 of the Bihar Tenancy Act, 1885.
The trial court rejected the claim but the High Court held the custom to be established by the evidence of the Customs sheets.
The defendants appealed.
Held The High Court was in error in holding that the plain tiff had established the custom pleaded by him or that it was reasonable.
(i) There was nothing to show that the practices and privileges recorded in the Custom Sheets were exercised as a matter of right.
The record has presumptive value.
But the revenue authorities were concerned to ascertain the existing state of affairs and not to determine whether the practices and privileges were ancient, certain, reasonable and continuous.
As evidence of local custom, the custom sheets had therefore not much value.
On the other hand there were indications that the exercise of the privileges recorded therein was permissive.
Even on the most liberal interpretation they did not provide evidence of the exercise of the privilege of commercial exploitation of limestone from the area in question.
[317D; 319G] (ii) Even granting that the Custom sheets recorded a local custom that the tenants in the villages of Baknaur and Samahuta excavated stones from the hills near the villages for purposes of trade, a claim of right founded on that custom must be held unreasonable and incapable of enforcement by the sanction of a court 's verdict, [320B] A claim in the nature of a profit a prendre operating in favour of an indeterminate class of persons and arising out of a local custom may be held enforceable only if it satisfies the tests of a valid custom.
A custom is a usage by virtue of which a class of persons belonging to a defined section in a locality are entitled to exercise specific rights against certain other persons or property in the same locality.
To the extent to which it is inconsistent with the general law undoubtedly the custom prevails.
But to be valid a custom must be ancient, certain and reasonable, and being in derogation of the general rules of law must be construed strictly.
A right in the nature of a profit a prendre in the exercise of which the residents of a locality are entitled to excavate stone for trade purposes would ex facie 313 314 be unreasonable, because the exercise of such a right ordinarily tends to the complete destruction of the subject matter of the profit.
The custom, if exercised in its amplitude as claimed, may also lead to breaches of the peace, for it would be open to all tenants to work any quarry simultaneously for trade purposes.
[321B D; 324D] Lord Rivers vs Adams, L.R.3 exhibit Div. 361, Harris & Anr.
vs Earl of Chesterfield and Anr.
, , Alfred F. Beckett Ltd. vs Lyons , referred to Lutchhmeeput Singh vs Sadaulla Nushyo & Ors., I.L.R. 9 Cal.
698 and Arjun Kaibarta vs Manoranjan De Bhoumick, I.L.R. , approved.
Henry Goodman vs The Mayor and Free Burgesses of the Borough of Saltash.
7 A.C. 633 and Mercer vs Denne, , 557 distinguished.


judgement:
Appeal No. 520 of 1967.
Appeal from the judgment and order dated December 19, 1966 of the Punjab and Haryana High Court in Civil Revision No. 934 of 1966.
Rajinder Sachhar, Mahinderjit Singh Sethi and Ravinder Narain, for the appellant.
R.M. Haz arnavis, Rameshwar Nath and Mahinder Narain, for respondent No. 1.
The Judgment of the Court was delivered by Bachawat, J.
On March 28, 1966 the election of four members to the Council of States (Rajya Sabha) by the members of the Punjab Legislative Assembly (Vidhan Sabha) was held, and as a result of the election, respondent No. 1, Raghbir Singh and one Narinder Singh were declared elected.
Appellant Ravindra Nath was one of the unsuccessful candidates.
On May 10, 1966, the appellant filed an election petition asking for a declaration that the election of respondent No. 1 and Narinder Singh was void and for a further declaration that he be declared duly elected as a member of the Rajya Sabha to one of those seats.
On July 1, 1966, the date fixed for the respondents to the petition to appear before the Tribunal and answer the claims made in the petition, respondent No. 1 filed a written statement in reply to the election petition and gave a written notice under the proviso to 106 s.97(1) of the Representation of the People Act, 1951 of his intention to give evidence to prove that the election of the appellant would have been void if he had been the returned candidate and if a petition had been presented calling in question his election.
The notice under s.97(1) was accompanied by the prescribed statement and particulars and a treasury receipt evidencing the deposit of Rs. 1,000 as security under section 117 of the Act.
An objection was taken on behalf of the appellant that the amount of security deposited by respondent No. 1 was insufficient and consequently the notice under the proviso to s.97(1) was invalid.
On this objection, the Tribunal raised the following preliminary issue being issue No. 10: "Whether the notice under section 97 of the Representation of the People Act, 1951, given and the recrimination statement filed on behalf of respondent No. 1 are invalid because of the insufficiency, if any, of the security deposit made by res pondent No. 1 within the time allowed, if any?".
It is now common case that under the law as it stood at the relevant time respondent No. 1 was required to deposit a sum of Rs. 2,000 as security under s.117 of the Representation of the People Act, 1951.
On October 7, 1966, the date fixed for argument on the preliminary issues, respondent No. 1 deposited a further sum of Rs. 1,000 as security and produced the relevant treasury receipt before the Tribunal.
By its order dated October 11, 1966 the Tribunal held that as the production of a receipt showing the deposit of Rs. 2,000 as security along with the notice was the condition precedent to the right of respondent No. 1 under s.97(1) to lead evidence, this right was lost by his omission to file with the notice the treasury receipt showing a deposit of Rs. 2,000 and the subsequent deposit of Rs. 1,000 by him did not entitle him to lead any evidence under s.97(1).
The Tribunal answered the preliminary issue accordingly.
On or about October 24, 1966, respondent No. 1 filed in the High Court for the States of Punjab and Haryana at Chandigarh a petition under article 227 of the Constitution asking for an order quashing the order of the Election Tribunal dated October 11, 1966 and a direction that respondent No. 1 be allowed to lead evidence under s.97(1).
Several preliminary objections to the maintainability of the petition under article 227 of the Constitution were raised before the High Court, but they were subsequently abandoned and counsel for the appellant agreed that the High Court should deal with the order of the Tribunal on the merits.
By its order dated December 19, 1966 the High Court held that it is only in cases in which the provisions of ss.117 and 118 with regard to security of deposit were not complied with before the date fixed for recording evidence under s 97(1) that the Tribunal could refuse to admit the evidence, and where, as in the present case, the entire amount of the security had been deposited before the date fixed for recording evidence, the Tribunal must admit the evidence.
On this finding, the High Court 107 allowed the petition under article 227 and quashed the order of the Election Tribunal dated October 11, 1966 in so faras it related to issue No. 10.
From this order of the High Court, the present appeal has been filed by certificate.
The question in this appeal is what time limit, ifany, is prescribed for furnishing the security referred to in the proviso to s.97(1) read with ss.117 and 118 of the Representation of the People Act, 1951 as it stood before its amendment by the Representation of the People (Amendment) Act, 1966.
Section 97 is in these terms: "97(1).
When in an election petition a declaration that any candidate other than the returned candidate has been duly elected is claimed, the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election.
Provided that the returned candidate or such other party as aforesaid shall not be entitled to give such evidence unless he has, within fourteen days from the date of commencement of the trial, given notice to the Tribunal of his intention to do so and has also given the security and the further security referred to in sections 117 and 118 respectively.
(2) Every notice referred to in sub section I shall be accompanied by the statement and particulars required by section 83 in the case of an.
election petition and shall be signed and verified in like manner.
" The Explanation to sub section
(4) of section 90 provided that for purposes of that sub section and of s.97 the trial of a petition would be deemed to commence on the date fixed for the respondents to appear before the Tribunal to answer the claim or claims made in the petition.
Sections 117 and 118 read: " 117.
The petitioner shall enclose with the petition a Government Treasury receipt showing that a deposit of two thousand rupees has been made by him either in a Government Treasury or in the Reserve Bank of India in favour of the Election Commission as security for the costs of the petition.
During the course of the trial of an election petition the Tribunal may at any time call upon the petitioner to give such further security for costs as it may direct, and may, if he fails to do so, dismiss the petition.
" It is to be noticed that the words "within fourteen days from he date of commencement of the trial" in the proviso to s.97(1) govern the giving of the notice and not the giving of the security.
108 Moreover, the period of fourteen days from the date of commencement of the trial cannot be the time limit for giving the further security under s 118.
The amount of the further security under section 118 and the time for giving it must be fixed by the Tribunal before it can be given by the recriminator.
He may be asked to furnish the further security at any time during the course of the trial if the original security is found to be insufficient.
We have to examine the provisions of ss.117 and 118 more closely to see if there is any time limit for the giving of security under the proviso to s.97(1).
The object of s.97 is to enable recrimination when a seat is claimed for the petitioner filing the election petition or any other candidate.
In his election petition the petitioner may claim a declaration that the election of all or any of the returned candidates is void on one or more of the grounds specified in sub section
(1) of s.100 and may additionally claim a further declaration that he himself or any other candidate has been duly elected on the grounds specified in section 101.
(see ss.81, 84, 98, 100 and 101).
It is only when the election petition claims a declaration that any candidate other than the returned candidate has been duly elected that s.97 comes into play.
If the respondent desires to contest this claim by leading evidence to prove that the election of the other candidate would have been void if he had been the returned candidate and an election petition had been presented calling in question his election, the respondent must give a formal notice of recrimination and satisfy the other conditions specified in the proviso to s.97.
The notice of recrimination is thus in substance a counter petition calling in question the claim that the other candidate has been duly elected.
In this background, it is not surprising that the legislature provided that notice of recrimination must be accompanied by the statement and particulars required by s.83 in the case of an election petition and signed and verified in like manner and the recriminator must give the security and the further security for costs required, under sections 117 and 118 in the case of an election petition.
Looking at the object and scheme of s.97 it is manifest that the provisions of ss.117 and 118 must be applied mutatis mutandis to a proceeding under s.97.
The recriminator must produce a government treasury receipt showing that a deposit of Rs. 2,000 has been made by him either in a Government Treasury or in the Reserve Bank of India in favour of the Election Commissioner as costs of the recrimination.
As the notice of recrimination cannot be sent by post, it must be filed before the Tribunal, and reading s.117 with consequential adaptations for the purposes of the proviso to s.97(1), it will appear that the treasury receipt showing the deposit of the security must be produced before the Tribunal along with the notice of recrimination.
It follows that the recriminator must give the security referred to in section 117 by producing the 109 treasury receipt showing the deposit of the security at the time of the giving of the notice under the proviso to s.97(1).
If the recriminator fails to give the requisite security under s.117 at the time of giving the notice of recrimination, he loses the right to lead evidence under s.97 and the notice of recrimination stands virtually rejected.
It was suggested that as under s.90(3) the Tribunal could not dismiss an election petition for non compliance with the provisions of s.117, the legislature could not have intended that the notice of recrimination would stand rejected for failure to give the security under s.117.
This argument overlooks the fact that under s.85 it is the duty of the Election Commission to dismiss the election petition for noncompliance with the provisions of s.117.
Likewise, reading s.118 with the proviso to s.97(1) it will appear that during the course of the trial of the recrimination the Tribunal may at any time call upon the recriminator to give such further security for costs as it may direct and may, if he fails to do so, reject the notice of recrimination given under the proviso to s.97(1).
It was suggested that the proviso to s.97(1) having enacted that the forfeiture of the right to lead evidence would be the penalty for failure to give the further security under s.118, the legislature could not have intended that the rejection of the notice of recrimination would be an additional penalty for this default.
This suggestion is based on fallacious assumptions.
The only right conferred on the recriminator satisfying the conditions of the proviso to s.97(1) is the right to lead evidence that the election of the other candidate would have been void if he had been the returned candidate.
If the recriminator fails to fulfil the conditions of the proviso, he loses this right, and the Tribunal is entitled to record an order to this effect.
An order recording that the recriminator has no right to give evidence under s 97 is tantamount to an order rejecting the notice of recrimination.
There is thus no substantial difference between the penalty prescribed by the proviso to s 97(1) and the penalty prescribed by s.118 for the default in giving the further security.
The High Court held that the recriminator loses his right to lead evidence under s.97 for failure to give security only in cases in which the provisions of ss.117 and 118 are not complied with before the date fixed for recording evidence.
In N. R. Shikshak vs R. P. Dikshit(1), a Full Bench of the Allahabad High Court also held that since, no period is fixed within which the security is to be given, the security may be given at any time before the recriminator gives evidence.
We are unable to agree with this decision on his point or with the judgment under appeal.
We have already seen that the time for giving the initial security for the recrimination is fixed on a combined reading of the proviso to s.97(1) and (1)[1965] A.L.J. 25, 41 42.
110 S.117 and the initial security must be given at.
the time of giving the notice of recrimination.
Other considerations also show that the date fixed for recording the evidence cannot be the date within which the security referred to in sections 117 and 118 is to be given under the proviso to s 97(1).
The recrimination starts on the giving of the notice under the proviso.
Though the taking of the recriminatory evidence may be postponed, preliminary directions for dis covery, inspection and other matters are given long before the evidence is taken.
It is, therefore, desirable that the initial security referred to in section 117 should be given along with the notice of recrimination at the very commencement of the recrimination proceeding.
Moreover, the date fixed for recording the evidence cannot be the time limit for giving further security under section 118.
The Tribunal may demand the further security under section 118 at any time in course of the trial of the recrimination even after the evidence has been partly taken.
The High Court thought that the decision in Kumaranand vs Brij Mohan(1) lends support to its conclusion that the Tribunal could not refuse to admit the evidence under s.97 if the security under s.117 is given before the date fixed for recording the evidence.
That decision turned on the construction of s.119 A and is not relevant on the questions under consideration in this appeal.
As section I 19 A did not expressly provide the penalty for failure to furnish the security for costs of an appeal at the time of filing the memorandum of appeal, the failure to furnish the security did not automatically result in dismissal of the appeal, and, it was for the High Court to decide having regard to the circumstances of each case whether it should decline to proceed with the hearing of the appeal.
But the proviso to s.97(1) expressly provides that the recriminator shall not be entitled to give evidence unless inter alia he gives the security referred to in section 117.
The Tribunal rightly held that the respondent No. 1 was re quired to produce with the notice under the proviso to s 97(1) a government treasury receipt showing a deposit of Rs. 2,000 as security for costs of the recrimination.
The High Court was in error in quashing this order.
In the result, the appeal is allowed with costs, the judgment and order of the High Court are set aside, and the 'petition under article 227 of the Constitution is dismissed.

summary:
By an election petition filed on May 10, 1966, the appellant challenged the election of the first respondent held on March 28.
1966 to the Rajya Sabha by members of the Punjab Vidhan Sabha and sought a declaration that he be declared duly elected as a member of the Rajya Sabha instead.
On July 1, 1966 the date fixed for the respondents to appear before the Tribunal and answer the claims made in the petition, the respondent filed a written statement in reply to the election petition and gave a notice under the proviso to section 97(1) of the Representation of the People Act, 1951, of his intention to give evidence to prove that, the election of the appellant would have been void if he had been the returned candidate and if a petition challenging his election had been presented.
The notice under section 917(1) was accompanied by the prescribed statement and particulars and a treasury receipt evidencing the deposit of Rs. 1,000 as security under section 117 of the Act.
An objection was taken on behalf of the appellant that the amount of security deposited by the respondent was insufficient in that he should have deposited Rs. 2,000 and consequently the notice under the proviso to section 97(1) was invalid.
On October 7, 1966, the date fixed for argument on the preliminary issues, the respondent deposited a further sum of Rs. 1,000 as security and produced the relevant treasury receipt before the Tribunal, but the Tribunal upheld the appellant 's objection on the view that as the production of a receipt showing the deposit of Rs. 2,000 as security along with the notice was the condition precedent to the right of the respondent under section 97(1) to lead evidence in view of his failure to comply with this requirement, this right was lost to him and the subsequent deposit of Rs. 1,000 by him did not entitle him to lead in evidence under section 97(1).
The respondent thereupon filed a petition in the High Court under article 227 of the Constitution challenging the decision of the Tribunal and the High Court allowed the petition holding that it is only in cases in which the provisions of sections 117 and 118 with regard to deposit of security were not complied with before the date fixed for recording evidence under section 97(1) that the Tribunal could refuse to admit the evidence, and where, as in the present case, the entire amount of the security had been deposited before such date, the Tribunal must admit the evidence.
On appeal to this Court, HELD:Allowing the appeal: the Tribunal had rightly held that the respondent was required to produce with the notice under the proviso to section 97(1) a Government Treasury Receipt showing a deposit of Rs. 2,000 as security for costs of the recrimination and the High Court was in error in quashing this order.
[110 F G].
105 The notice of recrimination under section 97 is in substance a counter petition calling in question the claim that the other candidate has been duly elected.
Looking at the object and scheme of section 97 it is manifest that the provisions of sections 117 and 118 be applied mutatis mutandis to a proceeding under section 97.
The recriminator must produce a Government Treasury Receipt showing that a deposit of Rs. 2,000 has been made by him in favour of the Election Commissioner as cost of the recrimination.
As the notice of recrimination cannot be sent by post, it must be filed before the Tribunal, and reading s.117 with consequential adaptations for the purposes of the proviso to, S.97(1), it will appear that the Treasury Receipt showing the deposit of the security must be produced before the Tribunal along, with the notice of recrimination.
If the recriminator fails to give the requisite security under section 117 at the time of giving the notice of recrimination, he loses the right to lead evidence under s.97 and the notice of recrimination stands virtually rejected.
[18E H; 109A B.] N.R. Shikshak vs R. P. Dikshit, 1965 [A.L.J] 25, 4142, disapproved.
Kumaranand vs Brij Mohan, ; , distinguished.
There was no force in the contention that the proviso to section 97(1) having enacted that the forfeiture of the right to lead evidence would be penalty for failure to give the further security under section 118, the legislature could not have intended that the rejection of the notice of recrimination would be an additional penalty for this default, An order recording that the recriminator has no right to give evidence under section 97 is tantamount to an order rejecting the notice of recrimination and there is no substantial difference between the two.
[110 D F].