judgement:
ivil Appeal No. 2494 of 1978.
From the Judgment and Order dated 9.12.
1977 of the Andhra Pradesh High Court in Writ Appeal No. 465 of 1976.
A. Subba Rao for the Appellant.
A.S. Nambiar, B. Parthasarthy, G. Prabhakar and K. Ram Kumar for the Respondents.
The Judgment of the Court was delivered by K.N. SAIKIA, J.
This appeal by special leave is from the common Judgment of the High Court of Andhra Pradesh dismiss ing two writ appeals and a writ petition.
The Andhra Pradesh (Andhra Area) District Municipalities Act, 1920 (hereinafter referred to as the 'old Act ') was applicable to Vijayawada Municipality of Andhra Pradesh and property tax was levied under that Act.
The Andhra Pradesh Municipalities Act 1965 (hereinafter referred to as the new Act ') came into force on 2.4.1965.
Section 2(11) of the new Act defined "council" to mean "a municipal council constituted under this Act.
" Section 391(1) of the new Act repealed the old Act.
Section 389 of the new Act provided: "389.
Act to be read subject to Schedule IX in regard to first reconstitution of a council etc.
: In regard to the first constitution of a council for any local area under Section 3. or to the first reconstitution in accordance with the provisions of this Act, of a council in existence at the commencement thereof, and otherwise in first giving effect to the provisions of this Act, this Act shall be read subject to the rules in schedule IX.
" 384 The Schedule IX to the new Act contained the transitional provisions in the rules therein.
Rule 12 thereof dealt with levy of taxes etc.
and said: "12.
Levy of taxes etc.
Any tax, cess or fee which was being lawfully levied by or on behalf of any council at the com mencement of this Act and which may be lawfully levied under this Act, shall notwithstanding any change in the method or manner of assessment or levy of such tax, cess or fee be levied by or on behalf of the council at such rate as may be prevailing at such commencement or at such other rate as may be determined by the council from time to time, by a resolu tion for the year in which this Act is brought into force, and unless the Government by general or special order other wise direct, for subsequent years also.
" The result was that tax lawfully levied and continued to be levied under the old Act had to be continued unless the council by resolution determined such other rate from time to time, and unless the Government by general or special order otherwise directed under the transitional provisions.
On 18.9.
1969 the Government of Andhra Pradesh issued G.O. Ms. No. 749 M.A. in exercise of its powers under the afore said Rule 12 of Schedule IX directing that all Municipal Councils, shall with effect from 1.4.70 levy the Property tax as per the provisions of the new Act.
But due to certain administrative difficulties the revision could not be com pleted before 1.4.
1970 and the Government, therefore. issued G.O. Ms. No. 293 M.A. dated 18.4.
1970 directing the Municipal Council to levy the property tax as per the provi sions of the new Act from 1.10. 1970.
By another G.O. Ms. No. 81 M.A. dated 30.1.1971 the Government directed the Municipal Council of vijayawada to continue to levy the property tax under the provisions of the old Act as certain rate payers had filed writ petition in the High Court and obtained stay.
However, by G.O. Ms. No. 675 M.A. the G.O. Ms. No. 81 was rescinded and the Vijayawada Municipal Coun cil was directed to collect revised taxes under the provi sions of the new Act with effect from 1.10. 1970.
This latter G.O. Ms. No. 675 was in its turn rescinded by G.O. Ms. No. 255 M.A. dated 15.6.73 whereby the Government or dered that the Vijayawada Municipal Council shall continue to levy the property tax under the provisions of the old Act and that G.O. was to be deemed to have come into force from 1.10.1970.
As a result the Vijayawada Municipality continued to levy and enhance the property tax under the provisions of the old Act.
It 385 may be mentioned that under section 82 of the old Act property, tax was levied on the basis of gross annual rental value, whereas under section 87 of the new Act the basis of assessment in owner occupied building was the capital value thereof to be determined in the prescribed manner.
The G.O. Ms. No. 255 dated 15.6.73 was challenged by house property owners in the High Court in two writ peti tions under Article 226 of the Constitution of India seeking writ in the nature of mandamus or order or direction re straining the Vijayawada Municipal Council from enforcing it and declaring the same illegal and void.
It was inter alia contended before the learned Single Judge that by earlier G.Os.
the Government having directed that taxes should be levied under the new Act, the transitional power under rule 12 had been already exercised and the power to levy any tax under the old Act therefore ceased and it was not open to the Government to rescind the previous orders and re direct taxes to be levied under the old Act.
That contention was accepted observing: "The language of the Rule is clear that once the Government by a general or special order, otherwise directs, the power to levy tax under the old Act is exhausted.
" Even so, it was held that in view of the provisions in section 4(1) of the Andhra Pradesh Municipalities (Fourth Amendment) Act (23 of 1975) which validated the actions taken, those could not be challenged as invalid.
The submissions that the Amendment Act was not retrospective and that the enhancement of the tax was not made following the procedure prescribed by law, were also negatived holding that the procedure prescribed under the old Act was followed inasmuch as under the old Act the property tax was levied on the basis of only rental value whereas under the new Act it was on the basis either of the rental value or of the capital value, and that under the old Act when tax was being levied on the basis of rental value there was no need to ascertain the capital value of the land and for enhancing the assessment all that the authority had to know was whether there had been an increase in the rent and Rule 6 of Schedule II which dealt with the value of the building for the purposes of property tax was inapplicable as the levy under the old Act on the basis of rental value and enhancement could be done accord ing to the procedure contained in Schedule VII Rule 10 of the old Act.
It was not denied that special notice as re quired under the old Act was given.
The writ petitions were accordingly dismissed.
386 Two writ appeals were filed by the writ petitioners.
Another writ petition having raised identical questions was heard with the two appeals by the Division Bench.
The Divi sion Bench held that the finding of the Single Bench that having already given directions by the General Orders under the transitory provision of Schedule IX Rule 12 the Govern ment 's power under that provision ceased and it had no power to rescind that order and direct that the taxes which were under the old Act must be continued to be collected was not challenged before it.
The Division Bench held that the Fourth Amendment Act had entrusted to the Municipal Councils the power to tax under the old Act, though that Act had been repealed.
It held that though the actions of the Vijayawada Municipal Council pursuant to the General Order might have been invalid those were validated by section 4(1) of the Fourth Amendment Act.
It was also held that the appellant could pursue their remedies by way of revision under the new Act.
Thus, the Division Bench having dismissed the two writ appeals as well as the writ petition by the impugned judg ment and also having refused the certificate, the appellant has obtained special leave.
Mr. A. Subba Rao, the learned counsel for the appellant, submits that under the old Act the basis for assessment of property tax was the annual rental value while under the new Act it was capital value.
By the G.O. No. 749 the Government having directed that property tax would be levied under the new Act, the subsequent G.Os.passed after rescinding the said G.O. No. 749 and redirecting assessment to be made under the old Act were invalid as was held by the Single Bench and that finding was not challenged before the Divi sion Bench.
Consequently, it is submitted, during the period from 1969 to 1973 there was no valid law to enable the Municipal Council to levy taxes under the old Act and the actions under the G.Os.
are sought to be validated by the Fourth Amendment Act of 1975, but unless the substantive law relating to the method of assessment was also amended retro spectively, the invalid actions could not be validated, as that law could not be deemed to have been in existence by a legal fiction.
Council submits that section 87 of the new Act relating to levy of Property Tax was amended so as to bring it in conformity with the corresponding provision of section 20 of the old Act which prescribed rental value as the basis for assessment.
It is pointed out that section 3 of the Fourth Amendment Act did not contain any indication that the said amendment was retrospective so as to bring it on the statute book by a fiction prior to 1973 when the invalid assessment was made.
The Fourth Amendment Act came into force only from 10th June, 1975 which was the date of the Ordinance.
The amendment of section 87 of the new Act 387 being not retrospective in its operation prior to 1973, it is submitted that the invalid assessments could not have been validated.
Mr. A.S. Nambiar, the learned counsel for the respond ents, submits that the old Act entitled the Municipality to collect the taxes which had been collected in accordance with law and after coming into force of the new Act accord ing to the intermediate G.Os.; and that the impugned G.O. Ms. No. 255 dated 15.6.73 having directed the taxes to be levied and collected in accordance with the old Act, there was.
no infirmity in the Judgments of the High Court.
It appears that after the writ petitions were filed challenging G.O. Ms. No. 255 dated 15.6.73 the Government issued the Andhra Pradesh Municipalities (Amendment) Ordi nance 1975 (Ordinance 1 of 1975) which became the Andhra Pradesh Municipalities (Fourth Amendment) Act, 1975 which was deemed to have come into force on the 10th June, 1975.
By the said Amendment act not only sections 85 and 87 of the new Act were amended but also certain intervening actions of the Municipal Council were sought to be validated.
Section 85 dealt with levy of tax and sub section (1) thereof said: "Where the council by resolution determines that a property tax shall be levied, such tax shall be levied on a11 build ings and lands within the municipal limits save those ex empted by or under this Act or any other law." Sub section (2) provided: "Save as otherwise provided in this Act and subject to the provisions of sections 81 & 87 and in accordance with the rules made by the Government in this behalf, these taxes shall be levied . .
Section 2 of the Fourth Amendment Act amended section 85 of the new Act by substituting clauses (a) and (b) of sub section (2) excluding the proviso thereto, by the following words: "At such percentages of the annual rental value of lands or buildings or both as may be fixed by the council.
" Section 86 of the new Act provided as follows: "86.
Levy of property tax on a direction by Government: 388 (1) The Government may, after consultation with the council by order published in the Andhra Pradesh Gazette, direct any council to levy the property tax referred to in sub section (1) of Section 81 or any class of such tax, at such rate and with effect from such date, not being earlier than the first day of the half year immediately following that in which the order is published, as may be specified in the order.
(2) When an order under sub section (1) has been published, the provisions of this Act relating to property tax shall apply as if the council had.
on the date of publication of such order, by resolution, determined to levy the tax at the rate and with effect from the date specified in the order and as if no other resolution of the council under Section 81 determining the rate at which and the date from which property tax shall be levied, had taken effect.
(3) A council shall not alter the rate at which the property tax of any class or such tax is levied in pursuance of an order under sub section (1) or abolish such tax except with the previous sanction of the Government.
" Section 87(1) of the new Act provided: "87(1) Every building shall be assessed together with its site and other adjacent premises occupied as an appurtenance thereto unless the owner of the building is a different person from the owner of such site or premises.
, ' By section 3 of the Fourth Amendment Act in sub section (2) of section 87 of the new Act the following words were substituted, namely: "(2) The annual rental value of lands and buildings Shall be deemed to be the gross annual rent at which they may reason ably be expected to let from month to month or from year to year less a deduction, in the case of buildings, of ten per cent of that portion of such annual rent which is attributa ble to the buildings alone, apart from their sites and the adjacent lands occupied as an appurtenance thereto; and the said deduction shall be in lieu of all allowance for repairs or on any other account whatever.
389 Provided that in respect of any building and the land appur tenant thereto, the fair rent of which has been fixed under section 4 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960, the gross annual rent shall be the annual amount of the fair rent so fixed.
" Section 4 of the Fourth Amendment Act sought to validate the actions taken earlier by providing as under: "4(1) Notwithstanding anything in the provisions of the principal Act or any order of the Government made under the rule 12 in Schedule IX to the Principal Act, any,action taken till the commencement of this Act by any municipal council to continue to levy and collect the property tax in accordance with the method or manner or assessment or levy as provided in the Andhra Pradesh (Andhra Area) District Municipalities Act, 1920 or the Andhra Pradesh (Telangana Area) District Municipalities Act, 1956, as the case may be, shall not be deemed to be invalid or ever to have been invalid by reason only of the fact that such action was taken by the said municipal council during the period when the power in this behalf had not been validly entrusted to it in accordance with the provisions of the principal Act or the rules made thereunder and accordingly: (a) The levy and collection of property tax made in pursu ance of such action shall for all purposes be deemed to be, and to have always been, made in accordance with law; and (b) no suit or other proceeding shall be instituted or continued in any court against the municipal council con cerned or any person or authority whatsoever on its behalf on the ground only that any such action or levy and collec tion was not taken or made in accordance with law.
(2) Notwithstanding anything in sections 85 and 87 of the Principal Act as amended by this Act, the property tax levied in accordance with the provisions of the Principal Act as it stood before the commencement of this Act by such of the municipalities as have come into existence after the commencement of the principal Act shall continue to.
be levied and collected by or on behalf of the Municipal 390 Council of any such municipality for the year commencing on the 1st April, 1975 .
" Admittedly the validity of the Fourth Amendment Act had not been challenged in the High Court.
In fact it was passed during the pendency of the writ petitions in the High Court.
Mr Suba Rao 's submission is that section 3 of the Fourth Amend ment Act having not been made retrospective, section 4 of the Act could not have said that the levy and collection of property tax made in pursuance of such action for all purposes be deemed to be and to have always been made in accordance with law.
It is true that only sub section (2) of Section 87 of the new Act was substituted as stated above by the Fourth Amendment Act.
However.
once the amendment substituted sub section (2) of section 87 it formed a part of that section.
This amendment only provided the basis of assessment and it itself did not provide for the commencement of such calcula tion which however might be taken from the other provisions of the new Act or from the General Orders issued by the Government.
Section 4(1) of the Fourth Amendment Act ex pressly validated any action taken till the commencement of that Act notwithstanding anything in the provisions of the new Act or in any Government Order made under rule 12 of Schedule IX of the new Act and the Municipal Council should continue to levy and collect the property tax in accordance with the method or manner of assessment or levy as provided in the old Act and those acts shall not be deemed to be invalid or ever to have been invalid by reason only of the fact that such action was taken by the said municipal coun cil during the period when the power in this behalf had not been validly entrusted to it in accordance with the provi sions of the new Act or the rules made thereunder and that the levy and collection of property tax may in pursuance of such action shall for all purposes be deemed to be, and to have always been, made in accordance with law.
From the above provisions of section 4( 1 ) of the Fourth Amendment Act there is no doubt that the legislature intended to validate the actions taken under the general orders and under the old as well as the new Act.
It may be interpreted that the impugned G.O. having been validated, the tenure covered by it must also be held to have been covered by it, so that there was really no interregnum in the process or procedure of assessment of property tax.
Mr. Subba Rao relies on Janapada Sabha, Chhindwara vs The Central Provinces Syndicate Ltd. and Anr., ; In that case in 1935, the Independent Mining Local Board, Chhindwara con 391 stituted under C.P. Local Self Government Act, 1920 resolved to levy a cess on coal extracted within the area at 3 pies per ton.
The sanction of the Local Government, as required by section 51(2) of the Act, was obtained for the levy.
In 1943, the levy was enhanced to 4 pies, in 1946 to 7 pies and in 1947 to 9 pies.
The validity of the enhanced levy was chal lenged and this Court, in appeal, held that the increased levy would also require the previous sanction of the Local Government and such sanction not having been obtained, the levy at a rate higher than 3 pies was illegal.
The State legislature thereafter enacted the Madhya Pradesh Koyala Upkar (Manyatakaran) Adhiniyam, 1964.
Section 2(a) of that act defined "Board" to mean the independent Mining Local Board, Chhindwara and its successor body the Janapada Sabha Chhindwara, the appellant, constituted under the C.P. and Berar Local Government Act, 1948.
Section 2(b) defined "cess" to mean "a cess imposed by the independent Mining Local Board Chhindwara or its successor" Section 3(1) of that Act provided that 'notwithstanding a judgment of any court, cesses imposed, assessed or collected by the Board in pursuance of the notifications specified in the Schedule shall.
for all purposes, be deemed to be, and to have been validly imposed.
assessed or collected as if the enactment under which they were issued stood amended at material times so as to empower the Board to issue the said notifications.
In the Schedule were specified three notifications enhancing the rate of cess.
On the question whether the enhanced levy was validated by the 1964 Act, this Court held that the Act did not give legal effect to the imposition of cess at the enhanced rates.
It was pointed out that the text or even the nature of the amendments was not disclosed though Section 51(2) of the 1920 Act could not be deemed to have been repealed by the 1964 Act, because the latter Act, in terms was limited in its application to the Independent Mining Local Board, Chhindwara, and its successor body and only in respect of the three notifications specified in the Sched ule.
An Act so limited in its application to one Local Board and to specified notification could not repeal the sub section which applied to all Boards.
Nor was there anything to indicate that notifications issued by the appellant Board without the sanction of the State Government must be deemed to have been issued validly.
It was held that such an in tendment could not be implied without express language, in a taxing statute.
It was further observed that it was open to the legislature within certain limits to amend the provi sions of an Act retrospectively and to declare what the law shall be deemed to have been.
But the Legislature, in that case attempted to overrule or set aside a decision of the Court.
It was not open to the Legislature to say that a judgment of a Court properly constituted and rendered in exercise of its powers in a matter brought 392 before it shall be deemed to be ineffective either as a precedent or between the parties.
That case is, therefore, clearly distinguishable from the instant case on facts.
Firstly, in the instant case there is no question of any judgment of any Court having been overruled or set aside.
The Single Bench Judgment was passed on 23.3.76, that is, after the Amendment Act which came into force on 10.6.75.
Secondly the language of Section 4(1) is very clear as to the intention of the legislature as to the contents of the amendment.
What the amendment in the instant case did was to amend the new Act and also validate actions taken under the G.O. impugned in the case.
What was prescribed by the im pugned G.O. was the same as was prescribed by the old Act which itself stood repealed by the new Act.
The procedure thus prescribed was one under the G.O. and not under the old Act, and Section 4(1) validated those actions without reviv ing the repealed old Act itself but by amending the new Act and validating the transitory measure taken by virtue of the Government 's orders issued under the transitional provision Schedule IX, of the new Act particularly Rule 12 thereunder.
The validity of Section 4(1) itself having not been chal lenged, it was not open for the Courts to give.
an interpre tation contrary to the clear and unequivocal language of the Section.
The rule is that an amendment Act must be read as if the words of amendment had been written into the Act except where that would lead to an inconsistency.
(Shamarao V. Parulekar vs The District Magistrate, Thana Bombay, at 689) Power of the legislature to pass a law includes the power to validate actions retrospectively, of course, within Constitutional limitations.
It is apt to remember that the State 's power to tax is derived from the Constitution and the municipality 's power to tax is derived from the State Legislature which could delegate that power in the manner the Constitution permits to the municipal council, an agent of the State Government, and the munici pality cannot refuse to raise taxes as directed.
The proper authority to determine what should and what should not constitute a public burden is the Legislature of the State.
This is not only true for the State itself but it is also true in respect of each municipality of the State; these inferior corporate bodies having only such authority in this regard as the legislature shall confer upon them.
A statute will not be declared unconstitutional unless it is specifi cally challenged and the principle is equally applicable to an enactment authorising levy of a tax for a public purpose.
The power to tax is a sovereign power and is legislative in character and it has to be exercised within the Constitu tional limitations.
The statutes relating to municipal taxes may be changed according to the existing legislative rules of State policy unless forbidden by the Constitution from doing so.
Irregular assessment may 393 also be regularised with retrospective effect within.
the same Constitutional limitations.
Where the Court has not already declared invalid a taxing measure which was of doubtful validity, it is permissible for appropriate legis lature to validate it by retrospective legislation.
No legal fiction is involved in such a case.
Mr. Subba Rao 's submis sion has, therefore, to be rejected.
We find force in the submission of Mr. Nambiar in this regard.
The G.O. impugned before the High Court has been covered and validated by the above provisions, the G.O. itself covered the period after the repeal of the old Act and till the date of commencement of the Fourth Amendment so that no interregnum was really there.
The assessment made according to the provisions of the old Act were validated as actions taken by the council pursuant to the impugned G.O. and not under the provisions of the old Act which was al ready repealed.
While referring to the old Act, the G.O. did not revive the Act but only prescribed the same procedure as was found in the repealed Act as a transitory measure.
The validity of section 4(1) of the Fourth Amendment Act having not been challenged before the High Court, we do not find any infirmity in the impugned judgments of the High Court.
In the result, this appeal fails and is dismissed but under the facts and circumstances of the case without any order as to costs.
Y. Lal Appeal dismissed.

summary:
Vijayawada Municipality of Andhra Pradesh earlier levied property tax under the Andhra Pradesh (Andhra Areas) Dis trict Municipalities Act, 1920.
That Act 'was repealed and the new Act known as the Andhra Pradesh Municipalities Act, 1965 came into force on 2.4.1965.
Under the old act property tax was levied on the basis of gross annual rental value, whereas under section 87 of the new Act the basis of assess ment in owner occupied building was the capital value there of to be determined in the prescribed manner.
Section 389 of the new Act provided that that Act was to be read subject to Schedule IX which contained transitional provisions in the rules.
Rule 12 thereof dealt with levy of taxes etc.
The Government under Rule 12 issued a G.O. Ms. No. 749 M.A. directing that all Municipal Councils shall with effect from 1.4.70 levy the property tax as per the provisions of the new Act, which date by a subsequent G.O. was changed to 1.10.1970.
By another G.O.Ms.
No. 81 M.A. dated 30.1.71, the Government directed the Vijayawada Municipal Council to continue to levy the property tax under the provisions of the old Act as rate payers had filed writ petitions in the High Court and obtained stay.
However, by G.O.Ms.
675 M.A., the G.O.No. 81 was rescinded and the Vijayawada Municipal Council was directed to collect revised taxes under the provisions of the new Act with effect from 1.10.70.
This G.O. was rescinded and by G.O. Ms. No. 255 M.A. dated 15.6.73 the Government directed the Vijayawada Council to levy the property tax under the old Act.
As a consequence, the Vijayawada Municipal continued to levy and enhance the property tax under the old Act.
The validity of G.O.Ms.
No. 255 dated 15.6.73 was chal lenged by house property owners in the High Court in two writ petitions seeking an order restraining the Vijayawada Municipal Council from enforcing it.
and declaring the same illegal and void.
The petitioners ' contention 382 amongst others was that the Government having directed that the taxes be levied under the new Act, the transitional power under rule 12 stood exercised, and the power to levy tax under the old Act had ceased and it was no longer open to the government to rescind the previous orders.
The High Court accepted the said contention, but held that in view of the provisions of section 4(1) of the Andhra Pradesh Munici palities (Fourth Amendment) Act (23 of 1975), which validat ed the actions taken, those could not be challenged as invalid.
The writ petitions were therefore dismissed.
Ap peals to 'the Division Bench, having failed, this appeal has been filed after obtaining special leave.
Dismissing the appeal, this Court, HELD: The State 's power to tax is derived from the Constitution, and the municipality 's power to tax is derived from the State Legislature, which could delegate that power in the manner the Constitution permits to the municipal council, an agent of the State Government and the municipal ity cannot refuse to raise taxes as directed.
The proper authority to determine what should and what should not constitute a public burden is the Legislature of the State.
This is not only true for the State itself, but it is also true in respect of each municipality of the State; these inferior corporate bodies having only such authority in this regard as the legislature shall confer upon them.
[202E F] A statute will not be declared unconstitutional unless it is specifically challenged and the principle is equally applicable to an enactment authorising levy of a tax for a public purpose.
The power to tax is a sovereign power and is legislative in character and it has to be exercised within the constitutional limitations.
The statutes relating to municipal taxes may be changed according to the existing legislative rules of State policy unless forbidden by the Constitution from doing so.
[202G H] Irregular assessment may also be regularised with retro spective effect within the Constitutional limitations.
Where the Court has not already declared invalid a taxing measure which was of doubtful validity, it is permissible for appro priate legislature to validate it by retrospective legisla tion.
No legal fiction is involved in such a case.
[203A C] The G.O. itself covered the period after the repeal of the old Act and till the date of commencement of the fourth amendment so that no interregnum was really there.
The assessment made according to the provisions of the old Act were validated as actions taken by the Council 383 pursuant to the impugned G.O. and not under the provisions of the old Act which was already repealed.
While referring to the old Act, the G.O. did not revive the Act but only prescribed the same procedure as was found in the repealed Act as a transitory measure.
[203B C] Janapada Sabha Chhindwara vs The Central Provim 'es Syndicate Ltd. and Anr., ; , referred to.


judgement:
230 239, 241, 249 251, 256, 257, 290, 303, 306 349, 351, 352, 355 357 of 1955 and Nos. 33 & 36 of 1956.
Petitions under Article 32 of the Constitution of India.
480 Achhru Ram and Naunit Lal, for the petitioners in Petitions Nos. 239, 241 & 251 of 1955.
Naunit Lal, for the petitioners in Petitions Nos. 249 & 250 of 1955.
B.D. Sharma and K. L. Mehta, for the petitioners in Petitions Nos. 290, 303, 306 349, 351, 355 357 of 1955 and 36 of 1956.
B. D. Sharma, for the petitioner in Petition No. 33 of 1956.
K. L. Mehta, for the petitioner in Petition No. 352 of 1955.
I. N. Shroff, for the petitioners in Petitions Nos.
230 238, 256 257 of 1955.
H. N. Sanyal, Additional Solicitor General of India, M. N. Kaul and T. M. Sen, for the respondents.
November 14.
The Judgment of the Court was delivered by WANCHOO, J.
These sixty nine petitions under article 32 of the Constitution by various land owners in the former State of Ajmer attack the validity of the Ajmer Abolition of Intermediaries and Land Reforms Act, 1955 (Ajmer III of 1955) (hereinafter called the Act).
The petitions disclose a large number of grounds on which the validity of the Act is impugned; but learned counsel, Mr. Achhru Ram and Mr. B. D. Sharma, appearing for various petitioners, have confined their arguments only to certain grounds raised in the peti tions.
We propose, therefore, to consider only the grounds urged before us.
The Act was passed by the Ajmer Legislative Assembly and received the assent of the President on May 29, 1955.
Section 4 of the Act provided for vesting of all estates held by intermediaries, as defined in the Act, in the State Government from a date to be notified.
The Act came into force on June 23, 1955, and August 1, 1955, was notified as the date on which the estates held by intermediaries would vest in the State Government.
The present petitions followed on the fixing of this date.
It is not disputed that the Act is protected under article 31 A(l)(a) of the Constitution inasmuch as it is a 481 piece of legislation for acquisition by the State of any estate or of any rights therein.
The argument is that in spite of this protection, either the whole Act or certain provisions of it are invalid, for reasons urged by learned counsel on behalf of the petitioners.
Mr. Achhru Ram attacks only sections 8 and 38 of the Act.
Mr. Sharma attacks the competency of the Ajmer legislature to pass the Act and also urges that in any case it does not apply to the case of jagirdars, one of whom is a petitioner before us in Petition No. 33 of 1956.
These four are the only grounds that have been urged before us, and we shall deal with them seriatim.
Re. section 8.
Section 8 is in these terms " Where an intermediary has on or after the 1st day of June, 1950, (a) granted a lease of any land in the estate or any part thereof for any non agricultural purposes other than mining for a period of three years or more; or (b) granted a lease or 'entered into a contract relating to any forest, fishery or quarry in his estate for a period of three years or more ; Or (c)granted a lease for the cultivation of any area of bir or pasture or waste land ; and the Collector is satisfied that such lease or contract was not made or entered into in the normal course of management but in anticipation of legislation for the Abolition of Intermediaries, the Collector may, subject to any rules made under this Act, by order in writing, cancel the lease or the contract as the case may be." It provides for cancellation of certain leases granted on or after June 1, 1950, where the lease is for a period of three years or more with respect to matters dealt with in cls.
(a) and (b) and where the lease is for any period in respect of matters dealt with in cl.
The Collector has been given the power to cancel such leases if they are not, made in the normal course of management but in " anticipation of legislation for abolition of intermediaries.
The argument is that 61 482 there can be no retrospective cancellation of leases granted at a time when the land owner had a right to dispose of his property as he liked under article 19(1)(f) and there was no restriction on such right.
It is said that in certain contingencies the cancellation of a lease might expose the land owner to the risk of paying compensation to the lessee, particularly in cases where the land owner might have realised the entire lease money in one lump sum for a lease of more than three years ' duration.
We are of opinion that there is no force in this contention.
The legislature was certainly competent, under entry 18 of List 11 of the Seventh Schedule to the Constitution relating to Land, to make this provision.
It cannot be disputed that the legislature has power in appropriate cases to pass even retrospective legislation.
Provisions for cancellation of instruments already executed are not unknown to law; for example, the Insolvency Acts provide for setting aside transfers made by insolvents under certain circumstances.
Therefore, the Ajmer Legislature certainly had the power to enact such a provision, and in the circumstances in which this provision has been made in the Act, it cannot be said that it is not protected under article 31 A.
The provision is not an independent provision; it is merely ancillary in character enacted for carrying out the objects of the Act more effectively.
The intention of the legislature was to give power to the Collector after the estates vested in the State Government to scrutinise leases of this kind made after June 1, 1950, which was apparently the date from which such legislation was under contemplation and to see whether the leases were such as a prudent land owner would enter into in the normal course of management.
Such leases would be immune from cancellation ; but if the Collector found that the leases were entered into, not in the normal course of management but designedly to make whatever the land owners could before the estate came to be transferred to the State Government, he 'Was given the power to cancel the same, as they would obviously be a fraud upon the Act.
Such, cancellation would subserve the purposes of the Act, and 483 the provision for it would therefore be an integral part of the Act, though ancillary to its main object, and would thus be protected under article 31 A (1)(a) of the Constitution.
Re. section 38.
Section 38 reads as follows Notwithstanding any agreement, usage, decree or order of a court or any law for the time being in force, the maximum rent payable by a tenant in respect of the land leased to him shall not exceed one and half times the revenue payable in respect of such land.
" This section provides for fixing the maximum rent at fifty per cent.
above the land revenue, and it is urged that this is an unreasonable restriction on the right of the land owner to let his holding.
The object of this legislation is to do away with intermediaries, and for that reason the estates held by intermediaries have been ' made to vest in the State Government tinder section 4.
Chapter VI of the Act, however, provides for allotment of lands for personal cultivation to intermediaries whose estates have been taken over upto a certain limit and the intermediaries who have been allotted lands under section 29 of the Act are called Bhuswamis or Kashtkars according to the nature of the lands allotted to them; (see section 30).
Bhuswamis and Kashtkars hold land directly from the Government and pay revenue to the Government; (see section 32).
The intention of the Act, therefore, is that intermediaries who have been allotted lands should cultivate them personally.
But section 37 permits Bhuswamis to let the whole or any part of the land allotted to them, while Kashtkars are forbidden from letting any part of their land except in certain circumstances when they are suffering from some disability.
In order, however, that the main object of the Act (namely, that the land should be cultivated by the person to whom it is allotted and that there should be no rackrenting) is attained, section 38 has been provided fixing the maximum rent at 50 per cent.
above the land revenue.
Thus the profit which a Bhuswami 484 can make by letting his land is so reduced compared to what he would earn if he cultivated it himself as to discourage him from letting the land and becoming a. new kind of intermediary.
Section 38, therefore, is another ancillary section, like section 8, and is meant to subserve the purposes of the Act, namely, the abolition of all intermediaries and encouragement of self cultivation of the land.
We are, therefore, of opinion that section 38 is also protected under article 31 A(l)(a) of the Constitution as an ancillary provision necessary for the purposes of carrying out the objects of the Act.
The competency of the Ajmer Legislation.
The argument in this behalf is put in this way.
The Act is a piece of legislation for the acquisition of estates.
Before the Constitution (Seventh Amendment) Act, 1956, came into force on November 1, 1956, there were two entries relating to acquisition of property in the Seventh Schedule, namely, entry 33 of List 1 (acquisition or requisitioning of property for the purpose of the Union) and entry 36 of List II(acquisition or requisitioning of property, except for the purposes of the Union, subject to the provisions of entry 42 of List 111).
The argument continues that the Act was passed by the Ajmer legislature under the power it was supposed to have under entry 36 of List 11 read with section 21 of the Government of part C States Act, 1951 (XLIX of 1951).
But entry 36 of List 11 only gives power to the State legislature to acquire property for purposes other than the purposes of the Union.
As, however, the property aquired under the Act vested in the President and therefore the Union after its acquisition, the Act was really for the acquisition of property for the purposes of the Union and could not have been passed by the Ajmer legislature.
In support of this argument Mr. Sharma referred us to various Articles of the Constitution in Part XII thereof relating to Finance, Property, Contracts and Suits, and also articles 73 and 239.
He contends that these provisions show that before the Government of Part C States Act was passed, the legislative power with respect to the areas comprised in Part C States 485 was in the Union which also through the President had executive power over the subjects over which the Parliament could legislate with respect to what were Part C States.
After the passing of the Government of Part C States Act, by virtue of the power conferred on Parliament by article 240, there was no change so far as the executive power in Part C States was concerned and it is still vested in the President.
Any property acquired for the purposes of Part C States vests in the President or the Union.
Therefore, according to him, the Ajmer legislature would have no power to enact a law for acquiring estates under entry 36 of, List 11; for the property so acquired would really be for the purposes of the Union and no law under that, entry could be made for acquiring property for the purposes of the Union.
We are of opinion that the argument, though plausible, must be rejected.
Assuming, without deciding.
that even after the passing of the Government of.
Part C States Act, any property acquired for a Part C State vested in the Union Government by virtue of the provisions of Part XII of the Constitution, the question still remains whether the Ajmer legislature could make a law under entry 36 of List II acquiring estates even though the estates when acquired may legally vest in the Union Government.
Now, entry 33 of List I refers to acquiring of property for the purposes of the Union.
It does not lay down in whom the property should vest after it has been acquired.
Similarly, entry 36 of List 11 speaks of acquisition of property, except for the purposes of the Union, and makes no mention in whom the property should vest after it has been acquired.
Entry 42 of List II which deals with compensation for such acquisition as well as for acquisition for any other public purpose, also does not speak where the property should vest after acquisition.
It is not necessary, therefore, to consider where the property should vest after acquisition in deciding the ambit of the competence of the legislature under those two entries.
The key to the interpretation of these two entries is not in whom the property would vest after it has been acquired 'but whether the 486 property is being acquired for the purposes of the Union in one case or for purposes other than the purposes of the Union in the other.
It is in this context that the competency of the Ajmer legislature to enact this law under entry 36 of List 11 is to be judged.
Section 21 of the Government of Part C States Act created a Legislative Assembly for Ajmer and gave that legislative assembly power to make laws for the whole or any part of the State with respect to any of the matters enumerated in List II or List III of the seventh Schedule to the Constitution.
Ajmer legislature was thus given power to pass laws with respect to acquisition of property for purposes other than those of the Union.
In other words, it bad the power to make law to acquire property for the purposes of the State of Ajmer or for any other public purpose.
The question then is whether the Act was passed acquiring estates in the State of Ajmer for the purposes of the State of Active of where the title may vest.
The answer to this question to our mind can only be one; the Act was passed by the State legislature for acquiring estates within the State and it could only have been for the purposes of the State.
There is no reason to limit the meaning of these general words, namely, 'the purposes of the State ', by importing in them the idea of where the property would vest after its acquisition.
That the purposes for which the estates were acquired were purposes of the State of Ajmer would be quite clear from the fact that now that the State of Ajmer is part of the State of Rajasthan, the estates acquired under the Act have gone to Rajasthan and have not been kept by the Union on the ground that the title vested in the Union.
Therefore, as the estates were acquired in this case for the purposes of the State of Ajmer the Act would be within the competency of the Ajmer legislature as it falls within the plain words of entry 36 of List 11.
Jagirdars.
The contention on behalf of the petitioner in petition No. 33 of 1956 is that under the Act the word intermediary includes a jagirdar.
The Act also provides that the definitions in the Ajmer Tenancy and Land 487 Records Act, 1950 (Ajmer XLII of 1950), will be imported where the words used in it are not defined.
The word I jagirdar is defined in the Ajmer Tenancy and Land Records Act as a person to whom the revenue of any land has been assigned under a sanad issued by the Chief Commissioner before the commencement of the Ajmer Land and Revenue Regulation, l877 ; (see section 2 (15) ).
It is not in dispute that a sanad was issued to a predecessor of the petitioner before 1877 ; but it is urged that a jagirdar is merely the assignee of land revenue and so far as that assignment is concerned it may be said to have been acquired under the Act.
But the petitioner besides being an assignee of land revenue is also owner of land and that interest of his has not been acquired under the Act.
We are of opinion that there is no force in this argument.
The word I estate ' is defined in section 2(v) of the Act as having the same meaning as assigned to it in the Ajmer Land and Revenue Regulation, 1877.
The Ajmer Regulation does not define the word 'estate ' as such, but it has defined the word ' Malguzar ' as a person liable under section 64 for payment of the revenue assessed upon an estate, under section 2(d).
Further, section 64 provides that all persons who are bound by the agreement prescribed by section 61 and their successors ininterest shall, while they continue to be owners of land in the Estate to which such agreement relates, be jointly and severally liable for the payment of the whole amount of revenue assessed upon such estate.
The Ajmer Regulation also defines particular types of estates like ' Istimrari Estate ' and 'Bhum ' but the general meaning of the word 'estate ' under the Ajmer Regulation is an area of land separately assessed to revenue, which is payable by the holder of the estate.
I Intermediary ' as defined in section 2 (viii) of the Act is a holder of an estate and includes a jagirdar.
Under section 4 all the estates held by intermediaries Vest in the State Government on the issue of a notification.
Therefore, if the jagirdars are intermediaries, that is holders of estates, their estates will vest in the State Government under section 4 of the Act.
The distinction which the learned counsel for this petitioner draws between the 488 interest of the jagirdar as jagirdar and as land owner is in our opinion wholly unfounded.
A perusal of annexures B, C and D, filed by the.
petitioner himself, would make this clear.
Anexures B and C are sanads with respect to the jagirs held by the petitioner.
Entry in the remarks column of annexure IS begins with the words " Grant of this estate lasts. ".
Similarly, in annexure C the opening words in the remarks column are " The Grant is to the Dudhadhari for the time being.
No part of the estate is transferable by sale or mortgage. ".
Therefore, the grants themselves designated these jagirs as estates.
They were assessed to revenue, which was, however, remitted and the estates thus came to be known as revenue free jagirs and the estate holder was designated as jagirdar.
It was because of this remission of the land revenue that the word I jagirdar ' was defined in the Ajmer Tenancy and Land Records Act, 1950, as assignee of land revenue.
Annexures B and C also show that when the grants were made before 1877 a large part of the area covered by the grant was uncultivated.
Annexure D shows that disputes arose between the jagirdars and the Biswedars in these jagirs about these uncultivated lands, and one such dispute was decided as late as 1954.
In that judgment (annexure D) history of jagir tenure was traced and it was held that the jagirdar was the owner of uncultivated land in his jagir and not the Biswedar.
Therefore, the distinction which has been drawn by the learned counsel between the jagirdar as an assignee of land revenue based on the definition in the Ajmer Tenancy and Land Records Act, 1950, and the same person as the land owner is unfounded.
It appears that though the jagirdar may have been defined as assignee of land revenue because of the peculiar fact that in the case of a jagirdar there had been remission of land revenue by sanads granted before 1877, he was the proprietor of his jagir and the grantee of the estate given to him as jagir There is no question, therefore, of separating the interest of jagirdar as the assignee of land revenue from, his interest as the holder of jagir estate by virtue of a grant before 1877.
The petitioner therefore in petition 489 No. 33 of 1956 is the holder of the jagir estate and therefore his entire interest in the estate is liable to resumption under the Act.
In the Ajmer Regulations, (Vol.
H to L) at pp.
564 6, these two estates have been considered and their history is given, and they are called jagirs.
The history of jagirs in Rajasthan was considered by this Court in Thakur Amarsinghji vs State of Rajasthan (1), at p. 330 onwards, and the word I jagir ' was hold to connote all grants which conferred on the grantees rights in respect of land revenue.
In the case of these two jagirs also, as annexures B and C show, land revenue was remitted and they were granted as estates for particular purposes.
They are, therefore, clearly estates in view of the origin of the title of the holder of these estates who is called a jagirdar and therefore the State could take them over under section 4 of the Act.
There is no force in any of the points raised on behalf of the petitioners, and the petitions fail and are hereby dismissed with one set of costs to the contesting respondent.
Petitions dismissed.

dataset_name: IN-Abs

summary:
Section 4 Of the Ajmer Abolition of Intermediaries and Land Reforms Act, 955, provided for vesting of all estates held by intermediaries, as defined in the Act, in the State from a date to be notified, and the petitioners who were affected thereby filed petitions under article 32 Of the Constitution of India challenging the validity of the Act and, in particular sections 8 and 38 of the Act on the grounds that (1) entry 36 of List 11 of the 479 Seventh Schedule to the Constitution gave power to the State legislature to acquire property for purposes other than the purposes of the Union, while the property acquired under the Act vested in the President and therefore the Union after its acquisition, and the Act was really for the acquisition of property for the purposes of the Union and could not have been passed by the, Ajmer legislature, (2) section 8 provided for retrospective cancellation of leases granted at a time when the land owner had a right to dispose of his property as he liked under article 19(1)(f) of the Constitution and there was no restriction on such right, and (3) section 38 which fixed a maximum rent was an unreasonable.restriction on the right of the land owner to let his holding.
It was also contended for some of the petitioners who were assignees of land revenue as also owners of land that, under the Act, an intermediary included a jagir and that as a jagirdar was merely an assignee of land revenue, only that assignment could be said to have been acquired under the Act.
Held, (1) that the purposes for which the estates were acquired were purposes of the State of Ajmer and, consequently, the Act was within the competency of the Ajmer legislature as it fell within entry 36 of List II of the Seventh Schedule to the Constitution, and it was not necessary to consider where the property should vest after acquisition in deciding the ambit of the competence of the legislature under the entry ; (2) that the provisions in section 8 of the Act which gave power to the Collector to cancel leases which were found to have been made in anticipation of legislation for abolition of intermediaries and which were, consequently, a fraud upon the Act, subserve the purposes of the Act and would, therefore, be an integral part of the Act, though ancillary to its main object, and were protected under article 31 A(1)(a) of the Constitution ; (3)that the intention of the Act was that the intermediaries who were allotted lands should cultivate them personally and the object of section 38 was to discourage them from letting the land and becoming a new kind of intermediaries, and, consequently, the section being an ancillary provision necessary for the purposes of carrying out the objects of the Act, was protected under article 31 A(1)(a) of the Constitution; and (4)that in view of the origin of the title of the holders of these estates who were called jagirdars, a distinction could not be made between jagirdars as assignees of land revenue and the same persons as land owners, and therefore, the State could take over the entire interest in the estate under section 4 Of the Act.


judgement:
ivil Appeal No 2960 of 1987.
From the Judgment and Order dated 18.2.
1986 of the Punjab & Haryana High Court in R.S.A. No. 3204 of 1984.
428 0 K. Khuller and R .C.
Kohli for the Appellant.
C.M. Nayar for the Respondent.
This appeal by special leave is against the judgment and decree dated February 18, 1986 in Second Appeal No. 3204 of 1984 of Punjab & Haryana High Court at Chandigarh.
The appellant/plaintiff while was working as Inspector.
Food and Supplies at Algaon.
the Director.
Food and Supplies.
Punjab on June 10.
1976 visited the place and found him to have purchased sub standard wheat landing him in receiving a charge sheet on June 29. 1976 for his miscon duct.
The appellant had submitted his explanation.
Rules 8 and 9 of the Punjab Civil Services (Punishment and Appeal) Rules.
1970 for short 'the Rules ' envisage the procedure to conduct an enquiry into the misconduct.
But the disciplinary authority.
on consideration of the explanation found that the appellant committed a minor misconduct.
Accordingly by order dated April 12.
1977 directed stoppage of two incre ments with cumulative effect.
The appellant laid the suit for a declaration that the offending order amounts to major penalty and imposition thereof without conducting enquiry as enjoined under Rules 8 and 9 is illegal.
On contest by the respondent state, the trial court held that the impugned order amounts to major penalty and granted a decree invali dating the order.
On appeal, though the Distt.
Court con firmed, on further Second Appeal the High Court held it to be minor penalty within the meaning of Rule 5(iv) of the Rules obviating the need to make regular enquiry.
Assailing the legality thereof this appeal has been filed.
The only question that needs decision is whether stop page of two increments with cumulative effect is a major penalty '? Admittedly Rules 8 and 9 envisage conducting an enquiry into misconduct after giving an opportunity to the delinquent employee in the manner prescribed therein and on establishing the charge to pass an appropriate order impos ing a major penalty prescribed in either clauses V to IX or minor penalty under clauses I to IV of Rule 5 of the Rules.
If it is a minor penalty indisputably the need to conduct regular enquiry has been dispensed with.
Rule 5 prescribes the penalties thus: "5.
Penalties: The following penalties may, for good and sufficient reasons.
and as hereinafter provided.
be imposed on a Government employee.
namely: 429 Minor Penalties (i) Censure; (ii) withholding of his promotions; (iii) recovery from his pay of the whole or part of any pecuniary loss caused by him to the Government by negligence of breach of orders; (iv) withholding of increments of pay; Major Penalties (v) reduction to a lower stage in the time scale of pay for a specified period, with further directions as to whether or not the Government employee will earn increments of pay during the period of such reduction and whether on the expiry of such period, the reduction will or will not have the effect of postponing the future increments of his pay; (vi) reduction to a lower time scale of pay, grade, post or service which shall ordinarily be a bar to the promotion of the Government employee to the time scale of pay, grade, post or service from which he was reduced, with or without further directions regarding conditions of restoration to the grade or post or service from which the Government employee was reduced and his seniority and pay on such restoration that grade, post or service; (vii) compulsory retirement; (viii) removal from service which shall be a disqualifica tion for future employment under the Government; (ix) dismissal from service which shall ordinarily be a disqualification for future employment under the Govern ment '.
Clauses VI to IX are not relevant to the facts of the case.
Withholding of increments of pay simpliciter undoubtedly is a minor penalty within the meaning of Rule 5(iv).
But sub rule (v) postulates reduction to a lower stage in the time scale of pay for a specified 430 period with further directions as to whether or not the Government employee shall earn increments of pay during the period of such reductions and whether on the expiry of such period the reduction will or will not have the effect of postponing the future increments of his pay.
It is an inde pendent head of penalty and it could be imposed as punish ment in an appropriate case.
It is one of the major penalties.
The impugned order of stoppage of two increments with cumulative effect whether would fall within the meaning of Rule 5(v)? If it so fails Rules 8 and 9 of the Rules require conducting of regular enquiry.
The contention of Shri Nayar, learned counsel for the State is that withholding two increments with cumulative effect is only a minor penalty as it does not amount to reduction to a lower stage in the time scale of pay.
We find it extremely difficult to countenance the contention.
With holding of increments of pay simpliciter without any hedge over it certainly comes within the meaning of Rule 5(iv) of the Rules.
But when penalty was imposed withholding two increments i.e. for two years with cumulative effect, it would indisputably mean that the two increments earned by the employee was cut off as a measure of penalty for ever in his upward march of earning higher scale of pay.
In other words the clock is put back to a lower stage in the time scale of pay and on expiry of two years the clock starts working from that stage afresh.
The insidious effect of the impugned order, by necessary implication, is that the appel lant employee is reduced in his time scale by two places and it is in perpetuity during the rest of the tenure of his service with a direction that two years ' increments would not be counted in his time scale of pay as a measure of penalty.
The words are the skin to the language which if pealed off its true colour or its resultant effects would become apparent.
When we broach the problem from this per spective the effect is as envisaged under Rule 5(v) of the Rules.
It is undoubted that the Division Bench in Sarwan Singh vs State of Punjab & Ors., I.L.R. , P.C. Jain, A.C.J. speaking for the division bench, while considering similar question, in paragraph 8 held that the stoppage of increments with cumulative effect, by no stretch of imagination falls within clause (v) of Rule 5 or in rule 4.12 of Punjab Civil Services Rules.
It was further held that under clause (v) of Rule 5 there has to be a reduction to a lower stage in the time scale of pay by the competent authority as a measure of penalty and the period for which such a reduction is to be effective has to be stated and on restoration it has further to be specified whether the reduction shall operate to postpone the future increments of his pay.
In such cases withholding of the increments without cumulative effect does not at all arise.
In case 431 where the increments are withhold with or without cumulative effect the Government employee is never reduced to a lower stage of time scale of pay.
Accordingly it was held that clause (iv) of Rule 5 is applicable to the facts of that case.
With respect we are unable to agree with the High Court.
If the literal interpretation is adopted the learned Judges may be right to arrive at that conclusion.
But if the effect is kept at the back of the mind, it would always be so, the result will be the conclusion as we have arrived at.
If the reasoning of the High Court is given acceptance, it would empower the disciplinary authority to impose, under the garb of stoppage of increments, of earning future incre ments in the time scale of pay even permanently with ex pressly stating so.
This preposterous consequences cannot be permitted to be permeated.
Rule 5(IV) does not empower the disciplinary authority to impose penalty of withholding increments of pay with cumulative effect except after hold ing inquiry and following the prescribed procedure.
Then the order would be without jurisdiction or authority of law, and it would be per se void.
considering from this angle we have no hesitation to hold that the impugned order would come within the meaning of Rule 5(v) of the Rules; it is a major penalty and imposition of the impugned penalty without enquiry is per se illegal.
The further contention of Shri Nayar that the procedure under Rule 8 was followed by issuance of the show cause notice and consideration of the explanation given by the appellant would meet the test of Rules 8 and 9 of the Rules is devoid of any substance.
Conducting an enquiry, dehorse the rules is no enquiry in the eye of law.
It cannot be countenanced that the pretence of an enquiry without reason able opportunity of adducing evidence both by the Dept.
as well as by the appellant in rebuttal, examination and cross examination of the witnesses, if examined, to be an enquiry within the meaning of Rules 8 and 9 of the Rules.
Those rules admittedly envisage, on denial of the charge by the delinquent officer, to conduct an enquiry giving reason able opportunity to the presenting officer as well as the delinquent officer to lead evidence in support of the charge and in rebuttal thereof, giving adequate opportunity to the delinquent officer to crossexamine the witnesses produced by the Dept. and to examine witnesses if intended on his behalf and to place his version; consideration thereof by the enquiry officer, if the disciplinary authority himself is not the enquiry officer.
A report of the enquiry in that behalf is to be placed before the disciplinary authority who then would consider it in the manner prescribed and pass an appropriate order as per the procedure in vogue under the Rules.
The gamut of this procedure was not gone through.
Therefore, the issuance of the notice and consideration of the 432 explanation is not a procedure in accordance with Rules 8 and 9.
Obviously, the disciplinary authority felt that the enquiry into minor penalty is not necessary and adhering to the principles of natural justice issued the show cause notice and on receipt of the reply from the delinquent officer passed the impugned order imposing penalty thinking it to be a minor penalty.
If it is considered, as stated earlier, that it would be only a minor penalty, the proce dure followed certainly meets the test of the principles of natural justice and it would be a sufficient compliance with the procedure.
In view of the finding that the impugned order is a major penalty certainly then a regular enquiry has got to be conducted and so the impugned order is clearly illegal.
The Trial Court rightly granted the decree.
The judgment and the decree of the High Court is vitiated by manifest illegality.
At this distance of time it is not expedient to direct an enquiry under rules 8 and 9 of the Rules.
The appeal is accordingly allowed and the judgment and decree of the High Court is set aside and that of the trial court is restored but in the circumstances without costs.
G.N. Appeal allowed.

summary:
The appellant, while working as Inspector, Food and Supplies, was found to have purchased sub standard wheat and hence chargesheeted for misconduct.
He submitted his expla nation.
Though Rules 8 and 9 of Punjab Civil Services (Punishment and Appeal) Rules, 1970 envisage the procedure to conduct an enquiry into the misconduct, the disciplinary authority, only on considering the explanation, found that that the appellant committed a minor misconduct.
According ly, an order was passed for stoppage of two increments with cumulative effect.
Appellant filed a suit for declaration that the said order imposed a major penalty which was ille gal in the absence of an enquiry under Rules 8 and 9.
The Trial Court granted a decree invalidating the said order.
On appeal, the District Court confirmed the decree.
However, on second appeal, the High Court held that the penalty imposed was a minor penalty within the meaning of Rules 5(iv) of the Rules obviating the need to make regular enquiry.
Aggrieved, the appellant has preferred this appeal, by special leave.
Allowing the appeal, HELD: 1.
Withholding of increments of pay simpliciter without any hedge over it certainly comes within the meaning of Rule 5(iv) of the Punjab Civil Services (Punishment and Appeal) Rules.
But when penalty was imposed withholding two increments i.e. for two years with cumulative effect, it would indisputably mean that the two increments earned by the employee was cut off as a measure of penalty for ever in his upward march of earning higher scale of pay.
In other words the clock is put back to a lower stage in the time scale of pay and on expiry of two years the clock starts working from that stage afresh.
The insi 427 dious effect of the impugned order by necessary implication, is that the appellant employee is reduced in his time scale by two places and it is in perpetuity during the rest of the tenure of his service with a direction that two years ' increments would not be counted in his time scale of pay as a measure of penalty.
Rule 5(iv) does not empower the disciplinary authori ty to impose penalty of withholding increments of pay with cumulative effect except after holding inquiry and following the prescribed procedure.
Then the order would be without jurisdiction or authority of law, and it would be per se void.
Considering from this angle the impugned order would come within the meaning of Rule 5(v) of the Rules, and the imposition of major penalty without enquiry is per se ille gal.
Sarwan Singh vs State of Punjab & Ors., ILR , overruled.
Rules 8 and 9 admittedly envisage, on denial of the charge by the delinquent officer, to conduct an enquiry giving reasonable opportunity to the presenting officer as well as the delinquent officer to lead evidence in support of the charge and in rebuttal thereof, giving adequate opportunity to the delinquent officer to cross examine the witnesses produced by the Department and to examine witness es if intended on his behalf and to place his version; consideration thereof by the enquiry officer, if the disci plinary authority himself is not the enquiry officer.
A report of the enquiry in that behalf is to be placed before the disciplinary authority who then would consider it in the manner prescribed and pass an appropriate order as per the procedure in vogue under the Rules.
The gamut of this proce dure was not gone through.
Therefore, the issuance of the notice and consideration of the explanations not a procedure in accordance with Rules 8 and 9. 4.
The Trial Court rightly granted the decree, and it is restored.
The judgment and the decree of the High Court is vitiated by manifest illegality and is set aside.
At this distance of time it is not expedient to direct an enquiry under Rules 8 and 9 of the Rules.


judgement:
ivil Appeal No. 173 of 1986.
From the Judgment and Order dated 29.3.
1985 of the Andhra Pradesh Administrative Tribunal, Hyderabad in Repre sentation Petition No. 1589 of 1983.
WITH Writ Petition (Civil) Nos.
11135 37 of 1984.
485 (Under Article 32 of the Constitution of India).
C. Sitharamaiah, G. Prabhakar, D. Prakash Reddy, B. Rajeshwar Rao and Vimal Dave for the Appellants.
Subodh Markandeya, W.A. Nomani, Seshagiri Rao, Mrs. Chitra Markandeya and A. Subba Rao for the Respondents.
The Judgment of the Court was delivered by SHARMA, J.
Civil Appeal No. 173 of 1986: By the judgment under appeal the Andhra Pradesh Adminis trative Tribunal has accepted the claim of seniority pressed by the respondents in their Representation Petition No. 1589 of 1983.
The respondents were working as Lower Division Clerks (LDCs) in the district police offices/units in Andhra Pra desh, when the question of appointing LDCs in the Chief Office arose.
It was decided to give an opportunity to the LDCs working in the district police offices/units on the condition that they would be willing not to rely upon their service rendered in the district police offices/units for the purpose of seniority and that their seniority would be counted with effect from the date they joined the Chief Office.
Accordingly a Memorandum Rc.
No. 1020/S1/68 dated 21.11.
1968 (Annexure 'A ') was issued to the district police offices/units.
The choice was limited to probationers and approved probationers having good service records.
The letter expressly stated that the appointees were to be put at the bottom of the list of probationers or approved proba tioners already working in the Chief Office.
Immediately thereafter the respondents and two other LDCs, who are not parties to the present case, expressed their desire to join the Chief Office on the condition as mentioned in the said memorandum.
They in positive terms declared in Annexure 'C ' series their willingness to forego their seniority.
After examination of their service records, orders were passed and accordingly Memorandum Rc.
No. 1020/S1/68 dated 1.6.
197 (1 Annexure '0 ') was issued to the heads of departments of the concerned district police offices/units.
A pointed reference to the memorandum of 21.11.
1968 was made stating that the clerks in question were to take their seniority from the date of their joining the duty in the Chief Office as already mentioned in their letters.
Accordingly, all the five respondents joined their duty in the Chief Office after submitting, with reference to the memorandum dated 1.6.
1970, separate letters (at pages 40 44 of the 486 paper book) addressed to the Inspector General of Police, stating that: "I submit that I am willing to take the last rank in senior ity in the category of LDCs.
in Chief Office from the date reporting duty in Chief Office.
" Their respective dates of joining the Chief Office are detailed in the Memorandum dated 7.9.1970, Annexure 'H ' (page 47 of the paper book).
They were placed on probation with the condition that if they failed to complete their probation satisfactorily they would be sent back to their original district/unit offices.
The respondents satisfactorily completed their proba tion and were substantively confirmed in the Chief Office and their seniority was counted with effect from the dates they joined the Chief Office.
In 1983 they filed an applica tion before the Andhra Pradesh Administrative Tribunal claiming that they were entitled to count their service rendered in the district police offices/units for the pur pose of their seniority in the Chief Office, which has been allowed by the impugned judgment.
In support of their claim the respondents relied on the Memorandum Rc.
No. 1020/S1/68 dated 18.1.
1969 (Annexure 'B ') issued by the office of the Inspector General of Police to the heads of the district police organisations/units, stating that, "In continuation of the Chief Office memorandum cited, the Commissioner of Police, all Superintendents of Police and Commandants etc., are requested to state whether there are any L.D. Clerks willing to come on transfer to Chief Office, if the condition stipulated in the Memorandum cited regarding taking of last rank is not insisted upon.
The records of the L.D. Clerks recommended should be good.
" It has been argued before the Tribunal as also before us that this letter clearly indicates that adequate number of clerks from the district police offices/units were not available and a decision to forgo the condition in regard to the seniority of the clerks was taken.
It has been contended that in view of this departmental decision the respondents should not be bound down by their statements made in Annex ures 'C ' series and in their letters Annexures 'E ' series.
The Tribunal has accepted their plea.
487 5.
Mr. C. Sitharamaiah, the learned counsel appearing in support of the appeal, has urged that the Memorandum Annex ure 'B ' does not indicate any final decision taken by the Department.
The learned counsel appears to be right.
A perusal of the letter makes it clear that the office of the Inspector General of Police was only making an inquiry in the terms indicated therein.
It is true that presumably.
sufficient number of volunteers from the district police offices/units were not available which promoted the authori ty concerned to issue the letter Annexure 'B ', but it does not go beyond circulating a query.
It cannot be suggested on its basis that there was a reversal of the policy with respect to the counting of the seniority of the incoming LDCs from the district police offices/units.
It has been asserted in the counter affidavit of the State filed before the Tribunal that not a single person was allowed to join the Chief Office on the condition indicated in Annexure 'B ', and it has not been denied on behalf of the respondents either before the Tribunal or before us.
The respondents have not been able to produce a copy of any decision taken on the lines indicated in Annexure 'B ' nor have they been able to cite even a single case of an LDC joining the Chief Office on such a supposed decision.
We have, therefore, no hesitation in holding that the condition mentioned in Annex ure 'B ' is of no avail to the respondents.
The learned counsel for the respondents referred to r. 16 of the A.P. Ministerial Service Rules (hereinafter referred to as the Rules) and urged that when the respond ents were permitted to join the Chief Office, they were allowed to do so by way of a regular transfer from one department to another and this was done for administrative exigencies of the Police Department, within the meaning of the said Rules, and not on their own request.
They are, therefore, entitled to count their earlier service for the purpose of seniority.
It is alleged that the fact that the respondents were paid travelling allowances for joining the Chief Office corroborates their stand.
We have considered the argument addressed on behalf of the respondents along with the relevant documents but do not find any merit in their stand.
It has to be appreciated that the cadre of the Chief Office is altogether different from cadre,of the district police offices/units where the respondents were earlier appointed and they were not liable to be transferred to the Chief Office.
The service conditions at the Chief Office were better, which was presumably the reason for the respondents to give up their claim based upon their past services.
It is true that the differential advantage was not so substantial as to attract every LDC working in the dis trict offices/units, and in that situation the letter Annex ure 'B ' had to be circulated.
However, so far the respond ents and the two others 488 were concerned, they found it in their own interest to forego their claim of seniority on the Oasis of their past services and they did so.
It is significant to note that their letters Annexures 'E ' series were sent to the Inspec tor General of Police many months after the issuance of Annexure 'B ' and they were allowed to join the Chief Office on clear Understanding that they would not be entitled to count their past services.
It is, therefore, idle to suggest that the respondents can.now turn back and repudiate their commitment expressly made many months after Annexure 'B '.
So far the allegation regarding payment of travelling allowance is concerned, the same has been dealt with in paragraph 6 of the counter affidavit of the appellant filed before the Tribunal in the following terms: "They cannot claim seniority now after a lapse of 13 years on the ground that they were given T.T.A. at the time of their transfer.
No orders were issued from this office to the Subordinate Officer that the petitioners are eligible for T.T.A. and joining time.
In fact the Dy.
Inspr.
of Police, Hyderabad Range in his order No. 534/E/256/70 Hr.
Dt. 5.6.70, addressed to Supdt.
of Police, Medak had specif ically informed that the petitioners No. 1 and 2 are not entitled for any T.T.A. and joining time." [t is urged that inspite of the clarification made by the Deputy Inspector General of Police, as stated above, if some officers permitted the respondents to draw travelling allow ance, this cannot be a ground to hold that it was a case of regular departmental transfer.
The '.
16 cannot, therefore, be held to be applicable in the present case.
Mr. Sitharamaiah urged that having regard to the entire circumstances as spelt out of the different documents on the records of the present case, it should be held that the Memorandum Annexure A ' issued by the Office of the 'Inspector General of Police was a mere invitation to the LDCs in the district police offices/units to apply for appointment in the Chief Office with the condition mentioned therein.
and availing of the opportunity, the respondents accordingly requested by their statements and letters for appointment in the Chief Office.
It is suggested by the learned counsel that if the case be treated to be one of transfer, it has to be held, in the circumstances, to be at the request of the LDCs concerned within the meaning of r. 16 of the Rules.
There considerable substance in the alter native argument of Mr. Sithara 489 maiah also, but, it is not necessary to go into this ques tion deeper as the absorption of the respondents in the Chief Office cannot be treated by way of transfer within the meaning of the Rules.
Besides the above infirmities there are two other important considerations which weigh heavily against the respondents.
The petition before the Tribunal was filed by the respondents after a period of 13 years of their initial appointment in the Chief Office, during which period many orders consistent with the terms of service as indicated in the Memorandum Annexure 'A ' must have been passed in favour of the other incumbents of the service.
The courts and tribunals should be slow in disturbing the settled affairs in a service for such a long period.
Besides, the respond ents, in the application before the Tribunal, did not im plead their colleagues who have been prejudicially affected by the impugned judgment.
It cannot be assumed that the respondents had no knowledge about them.
As was rightly pointed out by Mr. Sitharamaiah, although in paragraph 4(d) of their application before the Tribunal (page 53 of the paper book) the respondents mentioned one Vijaya Chand alleged to be an officiating LDC who was put over them, they did not implead even him.
We are, therefore, of the view that apart from the merits of the case, the petition of the respondents before the Tribunal was fit to be rejected on the ground of the above mentioned last two points.
Finally the learned counsel for the respondents said that in any event they should not be put below those persons who had not successfully completed their probation in the Chief Office on the date the respondents joined there.
We do not find any merit in this submission either.
Accordingly, the judgment under appeal passed by the Andhra Pradesh Administrative Tribunal is set aside and the Representation petition of the respondents is dismissed.
The appeal is allowed, but, in the circumstances, there will be no order as to costs.
Writ Petitions (Civil) Nos.
11135 37 of 1984: 11.
These applications under Article 32 of the Constitu tion have been filed by the three petitioners who were appointed during the years 1965 67 in the Central Office of the Inspector General of Police (now redesignated as Direc tor General and Inspector General of Police), Andhra Pra desh.
Since they had not passed the general examination held for the purpose, a special qualifying examination was held in 1968 to facilitate the petitioners and other similarly situated persons to pass at the test.
The petitioners, however, did not appear at this 490 examination.
Another special qualifying examination was held in 1974 and the petitioners successfully cleared the same.
Thereafter, by an order dated 17.6.
1976 (Annexure 'E '), their services were regularised with effect from 1.8.1972.
Their claim in the present case is for counting their sen iority with effect from their initial dates of appointment in the years 1965 67 12.
It has been contended by the learned counsel for the petitioners that they were not qualified for the 1968 exami nation and at the very first opportunity available to them in 1974, they passed the special qualifying examination and, therefore, they should not be penalised by ignoring their services rendered before 1.8. 1972.
It is significant to note that although the impugned order was passed in 1976, the petitioners did not commence any legal remedy before the year 1984 when they filed the present application directly before this Court after a period of 8 years.
By way of a preliminary objection, Mr. Subbarao, the learned counsel appearing for some of the officers impleaded as respondents in this petition, has drawn our attention to the fact that earlier a writ application, being W.P. No. 106 of 1980, was filed by some of the employees of the central office making similar claim of seniority and the present petitioners specifically stated that their case would be governed by the judgment in the earlier writ petition which was ultimately dismissed by this Court on August 8, 1986 (M. Nirmala and Others vs State of Andhra Pradesh and Others, Mr. Subbarao contends that after the dismissal of the earlier case, the petitioners now cannot be permitted to urge any new ground in support of their claim.
The reply on behalf of the petitioners is that if the earli er writ application had been allowed, they would also be entitled to succeed, but after its dismissal their claim cannot be rejected without examination of the additional questions which did not arise in the earlier case.
On merits the reply on behalf of the Government of Andhra Pradesh is that the respondent officers had joined the office of the Inspector General of Police after qualify ing at the general examination held for the purpose, and since the petitioners did not appear at the examination, they cannot be equated with the respondent officers.
The general examinations for recruitment to the central office were held in 1964, 1965, 1966, 1967 and 1968, but the peti tioners did not choose to avail of the ordinary method for joining the service.
Instead 491 they entered the service by the side door and their depart ment, taking an attitude liberal to them and other similar officers, decided to hold special qualifying examinations.
It is contended that in these circumstances the rule as laid down in Memorandum No. 473/Y1/70 5 dated 24.7.
1970 (Annex ure 'VII ') is clearly applicable, and for the purpose of seniority the petitioners were given the advantage of two years of service rendered by them prior to their successful ly completing the special qualifying examination.
The argu ment is well founded.
The learned counsel also pointed out that the standard of the special qualifying examination was not the same as that of the general examination held for recruitment.
Besides the weakness in the case of the petitioners as mentioned above, the delay of 8 years on their part to initiate legal remedy is fatal and these writ petitions are fit to be rejected on this ground alone.
The writ applica tions are, therefore, dismissed with costs payable to the respondents represented by Mr. Subbarao.
G.N. Appeal allowed and writ petition dismissed.

summary:
The respondents in the Civil Appeal, were working as Lower Division Clerks in the district police offices/units.
Some posts of Lower Division Clerks fell vacant in the Chief Office and it was decided to fill up the same by appointing Lower Division Clerks with good service record from the district police offices.
Accordingly a Memorandum was issued on 21.11.
1968 which expressly stated that the appointees would be put at the bottom of the list of Lower Division Clerks already working in the Chief Office.
The respondents and two others expressed their willingness to join and also to forego their seniority.
Accordingly an order was passed and the respondents joined duty in the Chief Office in 1970 and were placed on probation.
They completed the probation satisfactorily and were confirmed with their seniority counted from the dates they joined Chief Office.
Later, in 1983 they filed a Representation Petition before the State Administrative Tribunal that in view of Memorandum dated 18.1.1969 which stated that the condition regarding taking last rank would not be insisted upon, the respondents were entitled to count their service rendered in the district police offices/units for the purpose of senior ity in the Chief Office.
The Tribunal allowed the petition.
The State has preferred the appeal against the said order.
The petitioners in the Writ Petitions were appointed in the years 1965 to 1967.
Since they did not pass the general examination, a special qualifying examination was held in 1968.
They did not appear at the examination.
Another chance was given in 1974 and the petitioners successfully cleared the same.
By an order dated 17.6.1976, their services were regularised with effect from 1.8.1972.
The petitioners challenged the validity of the order, claiming, that their seniority 483 should be counted from the dates they were appointed.
Allowing the appeal and dismissing the Writ Petitions, HELD: 1.
It has to be appreciated that the cadre of the Chief Office is altogether different from the cadre of the district police offices/ units where the respondents were earlier appointed and they were not liable to be transferred to the Chief Office.
The service conditions at the Chief Office were better, which was presumably the reason for the respondents to give up their claim based upon their past services.
It is true that the differential advantage was not so substantial as to attract every Lower Division Clerk working in the district offices/units, and in that situation the letter dated 21.11.1968 had to be circulated.
However, so far the respondents and the two others were concerned, they found it in their own interest to forego their claim of seniority on the basis of their past services and they did so.
It is significant to note that their letters expressing their willingness to join Chief Office by foregoing their seniority were sent to the Inspector General of Police many months after the issuance of circular dated 18.1.1969 stat ing that the condition of foregoing seniority would not be insisted upon and they were allowed to join the Chief Office on clear understanding that they would not be entitled to count their past services.
It is, therefore, idle to suggest that the respondents can now turn back and repudiate their commitment expressly made many months after the said circu lar.
[297G H; 298A B] 2.
So far the allegation regarding payment of travelling allowance is concerned, if some officers permitted the respondents to draw travelling allowance, this cannot be a ground to hold that it was a case of regular departmental transfer.
Rule 16 of the Andhra Pradesh Ministerial Service Rules cannot, therefore, be held to be applicable in the present case.
[298C E] 3.
The petition before the Tribunal was filed by the respondents after a period of 13 years of their initial appointment in the Chief Office, during which period many orders consistent with the terms of service as indicated in the Memorandum dated 21.11.1968, must have been passed in favour of the other incumbents of the service.
The courts and tribunals should be slow in disturbing the settled affairs in a service for such a long period.
Besides, the respondents, in the application before the Tribunal, did not implead their colleagues who have been prejudicially affect ed by the impugned judgment.
It cannot be assumed that the respondents had no knowledge about them.
Apart from the merits of the case, the petition of the respondents before the Tribunal 484 was fit to be rejected on these grounds.
[298B D] 4.
There is also no merit in the contention that the respondents should not be put below those persons who had not successfully completed their probation in the Chief Office on the date the respondents joined there.
[299E] 5.1 As regards the Writ Petitions, it is significant to note that although the impugned order was passed in 1976, the petitioners did not commence any legal remedy before the year 1984 when they filed the present application directly before this Court after a period of 8 years.
[300C] 5.2 Though a Writ Petition was filed by some of the employees of the Central Office making similar claim of seniority the same was ultimately dismissed by this Court on August 8, 1986.
[300E] M. Nirmala and others vs State of Andhra Pradesh and Others, , referred to.
5.3 The respondent officers had joined the Central Office after qualifying at the general examination held for the purpose, and since the petitioners did not appear at the examination, they cannot be equated with the respondent officers.
The general examinations for recruitment to the Central Office were held in 1964, 1965, 1966, 1967 and 1968, but the petitioners did not choose to avail of the ordinary method for joining the service.
Instead they entered the service by the side door and their department, taking an attitude liberal to them and other similar officers, decided to hold special qualifying examinations.
However, for the purpose of seniority the petitioners were given the advan tage of two years of service rendered by them prior to their successfully completing the special qualifying examination.
Even the standard of the special qualifying examination was not the same as that of the general examination held for recruitment.
[300G H; 301A B]