judgement:
Civil Appeal No. 564 of 1970.
Appeal by special leave from the judgment and decree dated the 3rd April, 1969 of the Kerala High Court in S.A. No. 266 of 1968.
A.S. Nambiyar for the Appellants.
K.T. Harindra Nath, N. Sudhakaran and M.R.K. Pillai for Respondent No. 1.
The Judgment of the Court was delivered by KOSHAL, J.
This appeal by special leave is directed against the judgment dated 3rd of April, 1969 of the High Court of Kerala rendered in a Second Appeal arising from a suit for partition of immovable property.
The suit was filed in the Court of Munsiff at Parappanangadi in the year 1938.
That Court passed a preliminary decree for partition on the 18th February, 1940 and thereafter the parties took no further interest in the matter for more than two decades.
In the mean time the High Court passed an order dated December 22, 1956 redefining the territorial limits of the Courts of Munsiffs functioning in district Calicut, of which the Court of Munsiff at Parappanangadi was one.
According to that order the territory in which the property disputed in the suit was situated, came under the territorial jurisdiction of the Munsiff 's Court at Manjeri and it was in that Court that the plaintiff filed, on the 18th January, 1966 an application (I.A. No. 109 of 1966) praying that a final decree in the suit be passed.
Defendant No. 12 (who is now dead and is represented in this appeal by respondents No. 1 and Ors.) immediately took an objection that the Manjeri Court had no territorial jurisdiction to hear the application and that the matter should have been agitated in the Court of Munsiff at Parappananagadi.
The objection was overruled by the Manjeri Court which proceeded to partition the property by metes and bounds and ultimately passed a final decree in that behalf on 9th July, 1968.
An appeal was filed 185 against final decree by defendant No. 12 in the Court of District Judge before whom the objection to the jurisdiction assumed by the Manjeri Court was again taken but was repelled with the result that the final decree was confirmed.
The third round of litigation in regard to question of jurisdiction took place in the High Court wherein a learned single Judge upheld the objection and ruled that it was only the Parappanangadi Court that had the territorial jurisdiction to entertain the application praying for final decree and that the assumption of such jurisdiction by the Manjeri Court was not justified.
The objection being upheld, the final decree was set aside and there was thus no occasion for the High Court to decide the other points arising in this appeal.
We have heard learned counsel for the parties on the question of jurisdiction.
An unfortunate aspect of this litigation has been that although that question has been agitated already in three courts and has been bone of contention between that parties for more than a decade, the real provision of law which clinches it was never put forward on behalf of the appellant before us nor was adverted to by the learned District Judge or the High Court.
That provision is contained in sub section (1) of Section 21 of the Code of Civil Procedure which runs thus: "21 (1) No objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice." In order that an objection to the place of suing may be entertained by an appellate or revisional court, the fulfilment of the following three conditions is essential: (1) The objection was taken in the Court of first instance.
(2) It was taken at the earliest possible opportunity and in cases where issues are settled, at or before such settlement.
(3) There has been a consequent failure of justice.
All these three conditions must co exist.
Now in the present case conditions Nos. 1 and 2 are no doubt fully satisfied; but then 186 before the two appellate Courts below could allow the objection to be taken, it was further necessary that a case of failure of justice on account of the place of suing having been wrongly selected was made out.
Not only was no attention paid to this aspect of the matter but no material exists on the record from which such failure of justice may be inferred.
We called upon learned counsel for the contesting respondents to point out to us even at this stage any reason why we should hold that a failure of justice had occurred by reason of Manjeri having been chosen as the place of suing but he was unable to put forward any.
In this view of the matter we must hold that the provisions of sub section above exracted made it imperative for the District Court and the High Court not to entertain the objection whether or not it was otherwise well founded.
We, therefore, refrain from going into the question of the correctness of finding arrived at by the High Court that the Manjeri Court had territorial jurisdiction to take cognizance of the application praying for final decree.
In the result we accept the appeal, set aside the judgment of the High Court and remand the case back to it for deciding on merits the appeal which culminated in that judgment.
As the proceedings for the final decree have been pending since 1966, we further direct that the High Court shall decide the appeal last mentioned at the earliest possible and, in any case, within three months from the receipt of the records from this Court.
The Registry shall take immediate steps to have the records despatched to the High Court.
There will be no order as to costs.
S.R. Appeal allowed.

summary/full:
In a suit for partition of immovable property filed in the Court of Munsiff Parappanangadi in the year 1938 that Court passed a preliminary decree for partition on the 18th February, 1940.
The parties to the suit took no further interest in the matter for more than two decades.
In the meantime according to the order of the High Court of Kerala dated December 22, 1956 refining the territorial limits of the Courts of Munsiffs functioning in district Calicut, of which the Court of Munsiff at Parappanangadi was one, the suit property came under the territorial jurisdiction of the Munsiff 's Court at Manjeri.
The plaintiff on the 18th January, 1966 filed an application praying that a final decree the suit be passed.
Defendant No. 12 immediately took an objection that the Manjeri Court had no territorial jurisdiction to hear the application and that the matter should have been agitated in the Court of Munsiff at Parappanagadi.
The objection was overruled by the Manjeri Court which proceeded to partition the property metes and bounds and ultimately passed a final decree in that behalf on 9th July, 1968.
An appeal filed against the final decree by defendant No. 12 failed, but he succeeded before learned single Judge of the Kerala High Court who ruled that it was only the Parappanangadi Court that had the territorial jurisdiction to entertain the application and the final decree was set aside.
Hence the appeal by special leave.
Allowing the appeal, the Court ^ HELD: 1:1.
In order that an objection to the place of suing may be entertained by any appellate or revisional Court, the fulfilment of the following three conditions is essential, according to the provisions contained in sub section (1) of section 21 of the Code of Civil Procedure: (i) The objection was taken in the Court of first instance; (ii) it was taken at the earliest possible opportunity and in case where issues are settled, at or before such settlement; (iii) there has been a consequent failure of justice.
[185 F G] 1:2.
In the present case conditions Nos. 1 and 2 are no doubt fully satisfied; but before the two appellate Courts below could allow the objection to be taken, it was further necessary that a case of failure of justice on account of the place suing having been wrongly selected was made out.
Since the respondents failed to point out even before this Court that a failure of justice had occurred by reason 184 of Manjeri having been chosen as the place of suing, the provisions of sub section (1) of section 21 of the Code of Civil Procedure made it imperative for the District Court and the High Court not to entertain the objection, whether or not it was otherwise well founded.
[185 H, 186 A C]


judgement:
tition Criminal No. 1892 of 1981.
Under Article 32 of the Constitution of India Ram Jethmalani, Vineet Kumar, M. G. Karmali and Naresh K Sharma for the Petitioner.
The Judgment of the Court was delivered by BHAGWATI J.
: This is a petition for a writ of Habeas Corpus for securing the release of one Hasnain Mukhtar Hussain Lakdawala (hereinafter referred to as the detenu) who has been detained by the Government of Maharashtra under an order of detention dated 31st December 1980 made in exercise of the powers conferred under section 3(1) of the (hereinafter referred to as the COFEPOSA.
This order of detention though dated 31st December 1980 was served on the detenu on 17th January 1981 and alongwith the order of detention, a communication, also dated 31st December 1980, was served on the detenu containing the grounds of detention.
The Government of Maharashtra also served on the detenu at the same time a letter dated 7th January 1981 enclosing copies of the documents relied upon in the grounds of detention.
It appears that on 6th February 1981 the advocate of the detenu addressed a letter to the Superintendent, Bombay Central Prison where the detenu was then confined and alongwith this letter he forwarded nine copies of the representation which was to be submitted by the detenu to the Government of Maharashtra against the order of detention.
This letter was delivered by the authorities in charge of the Bombay Central Prison to the detenu on 6th February 1981, but on the same day the detenu was shifted from the Bombay Central Prison to Nasik 291 Road Central Prison and the nine copies of the representation were therefore carried by the detenu with him to the Nasik Road Central Prison and from there, the requisite number of copies of the representation duly signed by the detenu were forwarded to the Government of Maharashtra and the Chairman of the Advisory Board on 10th February 1981.
This representation was however rejected by the Government of Maharashtra by its letter dated 25th February 1981.
It appears that a copy of the representation was also sent by the detenu to the Central Government and by its letter dated 26th February 1981 the Central Government too rejected the representation.
In the meantime, the case of the detenu was referred to the Advisory Board and on 11th March 1981, the detenu was called for an oral hearing by the Advisory Board and at this meeting the detenu handed over to the Chairman and Members of the Advisory Board four copies of a further representation dated 11th March 1981 addressed by him jointly to the Chairman and the Members of the Advisory Board and the Government of Maharashtra praying that the Government of Maharashtra may be pleased to revoke the order of detention and set the detenu at liberty.
The Advisory Board considered the case of the detenu and by a letter dated 16th March 1981, the Secretary of the Advisory Board intimated to the advocate of the detenu that the Advisory Board had by its report dated 12th March 1981 advised the Government of Maharashtra that there was sufficient cause for the detention of the detenu.
The State Government thereafter in exercise of the powers conferred under clause (f) of section 8 passed an order dated 23rd March 1981 reciting the opinion given by the Advisory Board and confirming the order of the detention.
The petitioner who is the wife of the detenu thereupon preferred the present writ petition challenging the order of detention made by the Government of Maharashtra as also the continuance of the detention under the subsequent order dated 23rd March 1981.
There were several grounds urged on behalf of the petitioner in support of the petition and each one of them was seriously pressed before us by Mr. Jethmalani on behalf of the petitioner.
The first ground was that the order of detention was made by one P. V. Nayak, Secretary to Government, Revenue and Forest Department and Ex officio Secretary to Government, Home Department while the representation made by the detenu against the order of detention was considered and disposed of by the Minister of State for Home Affairs not by P. V. Nayak and hence there was no effective consideration of the representation of the detenu as required by law.
The argument on behalf of the detenu was that the representation of a 292 detenu must be considered by the same person who has passed the order of detention and since in the present case, the representation was considered by a different person, it was not a valid and proper consideration of the representation and the continuance of the detention of the detenu was therefore invalid There was also another related ground urged on behalf of the petitioner and it was that the Minister of State for Home affairs who considered the representation of the detenu was not competent to do so, both by reason of lack of authority as also in view of the fact that the case had already been dealt with by P. V. Nayak.
We do not think there is any substance in either of these two grounds.
If we look at the order of the detention, it is clear that it was not made by P. V. Nayak in his indi vidual capacity as an officer of the State Government but it was made by him as representing the State Government.
It was the State Government which made the order of detention acting through the instrumentality of P. V. Nayak, Secretary to Government who was authorised so to act for and on behalf of and in the name of the State Government under the Rules of Business.
Rule 15 of the Rules of Business of the Government of Maharashtra provided that those Rules may "to such extent as necessary be supplemented by instructions to be issued by the Governor on the advice of the Chief Minister" and in exercise of the power conferred under this Rule, the Governor of Maharashtra issued Instructions for the more convenient transaction of the business of the Government.
Clauses (4), (5) and (6) of these Instructions as they stood at the material time provided inter alia as under: 4.
Except as otherwise provided in these Instructions, cases shall ordinarily be disposed of by, or under the authority, of the Minister in charge, who may by means of standing orders give such directions as he thinks fit for the disposal of cases in the Department, Copies of such standing orders shall be sent to the Governor and the Chief Minister.
5 Each Minister shall arrange with the Secretary of the Department what matters or classes of matters are to be brought to his personal notice.
Except as otherwise provided in these instructions, cases shall be submitted by the Secretary in the Department to which the case belongs to the Minister in charge.
293 Pursuant to the instructions contained in these clauses, Shri A. R. Antulay, Chief Minister of Maharashtra and Minister incharge of the Home Department, issued a Standing order dated 18th July 1980 directing that cases under sub section (I) of section 3 of the COFEPOSA Act need not be submitted to him or to the Minister of State for the Home Department and that such cases may be allotted to and disposed of by any of the six officers mentioned there one of them being P. V. Nayak.
On the same day, another Standing order was issued by Sh.
A. R. Antulay Chief Minister of Maharashtra and Minister in charge of Home Department in pursuance of the provisions contained in Rule 6 of the Rules of Business, directing inter alia that all cases appertaining to the COFEPOSA Act and all other matters arising under the provisions of that Act may be allotted to the Minister of State for Home Affairs.
This latter Standing order provided that nothing contained in it shall affect the directions contained in the earlier Standing order issued on the same day.
It will therefore be seen that P. V. Nayak was authorised under the earlier Standing order dated 18th July 1980 to deal with and dispose of cases under sub section (I) of section 3 of the COFEPOSA and it was in exercise of the authority thus conferred upon him that P. V. Nayak acting for the State Government made the order of detention against the assessee under sub section (I) of section 3.
[t was the State Government which made the order of detention and not P. V. Nayak in his individual capacity.
The representation made by the detenu against the order of detention was also therefore required to be considered by the State Government and either it could be disposed of by P. V. Nayak acting for the State Government under the earlier Standing order dated 18th July 1980 or the Minister of State for Home could dispose it of under the later Standing order dated 18th July 1980.
Whether P. V. Nayak considered the representation and disposed it of or the Minister of State for Home did so would be immaterial, since both had authority to act for the State Government and wherever be the instrumentality, whether P. V. Nayak or the Minister of State for Home, it would be the State Government which would be considering and dealing with the representation.
The only requirement of Article 22 (5) is that the representation of the detenu must be considered by the detaining authority which in the present case is the State Government and this requirement was clearly satisfied because when the Minister of State for Home considered the representation and rejected it, he was acting for the State Government and the consideration and rejection of the representation was by the State Government.
There is no requirement express or implied in any provision of the COFEPOSA that the same person who acts for 294 the State Government in making the order of detention must also consider the representation of the detenu.
In fact, as pointed out by Chinnappa Reddy, J. in Smt.
Kavita vs State of Maharashtra(l) a Government business can never get through if the same individual has to act for the Government in every case or proceeding or transaction, however advantageous it may be to do so.
" Moreover it would really be to the advantage of the detenu if his representation is not considered by the same individual but fresh mind is brought to bear upon it.
We do not therefore see any constitutional or legal infirmity in the representation having been considered by the Minister of State for Home.
The next contention of Mr. Jethmalani on behalf of the petitioner was that there was nothing to show that the decision to confirm the order of detention and continue the detention of the detenu was taken by the State Government as required by clause (f) of section 8 and hence the continuance of the detention was invalid.
lt is really difficult to appreciate this contention urged on behalf of the petitioner.
It is clear from the annexures to the writ petition that after receipt of the opinion of the Advisory Board that there was in its opinion sufficient cause for the detention of the detenu, the State Government in exercise of the powers conferred under clause (f) of section 8, made an order dated 23rd March 1981 confirming the detention order and continuing the detention of the detenu.
This order was expressed to be made "By order and in the name of the Governor of Maharashtra" and was authenticated by the Under Secretary to the Government of Maharashtra Home Department.
It recited in so many terms that it was the State Government which was confirming the order of detention and continuing the detention of the detenu and no material has been placed before us on behalf of the detenu to displace the correctness of this recital.
There can therefore be no doubt that the ord r confirming the detention of the detenu was made by the State Government.
Moreover, we have the statement on oath made by C. V. Karnik, Assistant Secretary to the Government of Maharashtra, Home Department that "the Government of Maharashtra thereafter under clause (f) of section 8 of the said Act confirmed the said detention order by an order dated 23rd March 1981.
" lt was then contended by Mr. Jethmalani on behalf of the petitioner that under clause (b) of section 8 it as the obligation of 295 the State Government to make a reference to the Advisory Board A within five weeks from the date of detention of the detenu and there was nothing to show that the State Government had made such a reference to the Advisory Board.
This contention is also without substance and totally futile, because it is clear from the statement of C. V. Karnik in his affidavit that it was the State Government which referred the case of the detenu to the Advisory Board under clause (b) of section 8 and no material has been placed before us on behalf of the detenu controverting the correctness of this statement.
Mr. Jethmalani also raised another contention in this connection and it was that, before making a reference to the Advisory Board, the State Government had not applied its mind to the question whether it was necessary to detain the detenu for a period longer than three months and this non application of mind vitiated the reference to the Advisory Board and the subsequent order of confirmation following upon it.
The argument of Mr. Jethmalani was that it was only if the State Government decided to detain a person for a period longer than three months that it was required to refer the case of such person to the Advisory Board and it was therefore necessary for the State Government in every case of detention to apply its mind and consider at least before making a reference to the Advisory Board whether the detention was to be continued for a period longer than three months.
We are of the view that this argument is not well founded and must be rejected.
It is clear that under clause (4) of Article 22 no law providing for preventive detention can authorise the detention of a person for a period longer than three months unless the Advisory Board has reported before the expiration of the period of three months that there is in its opinion sufficient cause for such detention.
This requirement of clause (4) of Article 22 is satisfied by the enactment of section 8 iq the COFEPOSA.
Section 8 clause (b) provides that in case of every detention the appropriate Government shall, within five weeks from the date of detention, make a reference to the Advisory Board and the Advisory Board is required to make a report as to whether or not there is sufficient cause for the detention of the detenu and submit the same to the appropriate Government within eleven weeks from the date of detention of the detenu.
The period of eleven weeks from the date of detention is prescribed for the submission of the report obviously because under clause (4) of Article 22 no detention can lawfully continue for a period longer than three months unless the Advisory Board has reported before the expiration of the period of three months that there is in its opinion sufficient cause for such detention.
But one thing is clear that this provision for reference to the Advisory Board is not confined to cases where 296 the detaining authority has already come to a decision that the detention shall be continued for a period longer than three months.
It applies equally where the detaining authority has not yet made up its mind as to how long the detention shall continue or even where the detention is to continue for a period of three months or less.
Whenever any order of detention is made, whether the detention is to continue for a period longer than three months or a period of three months or less or the detaining authority has not yet applied its mind and determined how long the detention shall be continued, the appropriate Government is bound within five weeks from the date of detention to make a reference to the Advisory Board and if it fails to do so, the continuance of the detention after the expiration of the period of five weeks would be rendered invalid.
The Advisory Board is, in every such case where a reference is made, required to submit its report within eleven weeks from the date of detention and if it reports that there is in its opinion no sufficient cause for detention the detaining authority is bound to release the detenu forthwith, even though a period of three months may not have expired since the date of detention.
This is a safeguard provided by the COFEPOSA Act, which is applicable in all cases of detention, whether the detention is to be continued beyond a period of three months or not and whether or not the detaining authority has applied its mind and determined, before making a reference to the Advisory Board, as to what shall be the period of detention.
We are clearly of the view that it is not at all necessary for the detaining authority to apply its mind and consider at the time of passing the order of detention or before making a reference to the Advisory Board, as to what shall be the period of detention and whether the detention is to be continued beyond a period of three months or not.
The only inhibition on the detaining authority is that it cannot lawfully continue the detention for a period longer than three months unless the Advisory Board has, before the expiration of the period of three months, reported that three is in its opinion sufficient cause for such detention.
We must therefore hold that the State Government did not commit any breach of its constitutional or legal obligation in making a reference to the Advisory Board without first determining the period for which the detenu was to be detained.
Mr. Jethmalani on behalf of the petitioner lastly submitted that there was unreasonable delay on the part of the State Government in considering the representation of the detenu and this delay was fatal to the validity of the continuance of the detention.
This contention is also without substance and must be rejected.
It is no 297 doubt true that the advocate of the detenu sent nine copies of the representation to the detenu on 6th February, 1981 and these nine copies came to be forwarded to various authorities only on 10th February, 1981 but the affidavit of B. B. Mulay, Jailer attached to the Bombay Central Prison, shows that these nine copies were handed over by B. B. Mulay to the detenu as soon as they were received by him from the emissary of the detenu 's advocate and the detenu got B these documents on the same day, namely 6th February, 1981.
B. B. Mulay asked the detenu to sign the representation and hand over the same for being forwarded to the State Government but the detenu stated that he would sign the representation only after going through it and he therefore carried the nine copies of the representation with him to the Nasik Central Jail where he was shifted in the evening of 6th February, 1981 and it was only on 10th February, 1981 that he signed all the nine copies of the representation and handed over the same to C. P. Gaekwad, Jailer, In charge of the Nasik Central Prison and according to the affidavit of C. P. Gaekwad, these nine copies of the representation duly signed by the detenu were forwarded to the respective authorities on the same day.
There was therefore no un reasonable delay on the part of the State authorities at this stage.
Proceeding further we find that the representation sent by the detenu was received in the Home Department of the State Government on 13th February, 1981 and on the same day, a letter was addressed by the Home Department to the Collector of Customs calling for his remarks in regard to the various allegations contained in the representation and para wise comments were received from the Customs Department on 21st February, 1981.
Now, it cannot be said that the Government acted unreasonably in forwarding the representation of the detenu to the Collector of Customs and waiting for the para wise comments of the Customs Authorities, since there were various allegations made in the representation which called for the comments of the Customs Department and without such comments, the State Government could not fairly and properly consider the representation of the detenu.
It may be noted that the communication from the Home Department dated 13th February, 1981 could not have reached the Collector of Customs until 16th February, 1981 because 14th and 15th February were Saturday and Sunday and therefore closed holidays.
The reply of the Customs Authorities which was received on 21st February 1981 must have been despatched on 20th February and therefore the Customs Authorities did not have more than four or five days within which to give their comments in regard to the various allegations contained in the repre 298 sentation of the detenu and this time taken by the Customs Authorities cannot be regarded as unreasonable.
We do not think that in these circumstances the State Government could be said to be guilty of any unreasonable delay so far as the period between 13th February and 21st February, 1981 is concerned.
There was also no unreasonable delay after 21st February, 1981.
The affidavit of C. V. Karnik shows that the representation of the detenu was immediately put up before the Minister of State for Home for consideration, in the light of the comments received from the Customs Authorities and the representation was considered and rejected by the Minister of State for Home on 23rd February, 1981 and necessary intimation to that effect was conveyed to the detenu by a letter dated 25th February 1981.
It is impossible to hold in these circumstances that there was any unreasonable delay on the part of the State Government in considering the representation of the detenu and this contention of Mr. Jethmalani must be rejected.
These were all the contentions urged on behalf of the petitioner and since there is no substance in them, the petition fails and is dismissed.
section R. Petition dismissed.

dataset_name: IN-Abs

summary/full:
One Hasnain Mukhtar Hussain Lakdawala was detained by the Government of Maharashtra by an order of detention dated 31st December, 1980 passed under section 3(1) of COFEPOSA, 1974.
The order of detention was served on the detenu on 17th January, 1981 along with a communication dated 31st December, 1980 and a letter dated 7th January, 1981 was also served enclosing copies of the documents relied upon in the grounds of detention.
A letter dated 6th February, 1981 along with nine copies of the representation to be made by the detenu sent by the detenu 's advocate to the Superintendent, Bombay Central Prison, though handed over to the detenu by the prison authorities on the same day was carried by the detenu to the Nasik Road Central Prison to which he was shifted on that day.
The requisite copies of the representation duly signed by the detenu were forwarded to the Government and the Chairman of the Advisory Board on 10th February, 1981.
The State Government, however, rejected the representation by its letter dated 25th February, 1981.
A copy of the representation sent to the Central Government was also rejected on 26th February 1981.
In the meantime, the case of the detenu was referred to the Advisory Board and on 11th March 1981, when the detenu was called for an oral hearing, the detenu handed over four copies of a further representation dated 11th March 1981, praying for revocation of the detention order.
The Advisory Board consi dered the case and by its report dated 12th March 1981 advised the State Government that there was sufficient cause for the detention of the detenu, and through its letter dated 16th March, 1981 apprised the detenu 's advocate of the position.
The State Government thereafter confirmed the order of detention.
Hence the writ petition by the detenu 's wife.
Dismissing the petition, the Court, ^ HELD: 1:1.
There was no constitutional or legal infirmity in the representation of the detenu having been considered by the Minister of State for Home.
[294 B] 1:2.
The only requirement of Article 22(5) of the Constitution is that the representation of detenu must be considered by the detaining authority which in 289 the present case was the State Government and this requirement was clearly satisfied, because when the Minister of State for Home considered the representation and rejected it, he was acting for the State Government and the consideration and rejection of the representation was by the State Government.
[293 G] 1:3.
There is no requirement express or implied in any provision of COFEPOSA that the same person who acts for the State Government in making the order of detention must also consider the representation of detenu.
More over, it would really be to the advantage of the detenu, if his representation is not considered by the same individual but fresh mind is brought to bear upon it.
[293 H 294 B] In view of the clear provisions of Rule IS of the Rules of Business of the Government of Maharashtra, clauses 4 to 6 of the Instructions issued by the Governor thereunder and the two standing orders dated 18th July 1980 it was immaterial, whether P.V. Nayak considered the representation and disposed it of, or the Minister of State for Home did so, since both had authority to act for the State Government and whatever be the instrumentality, it would be the State Government which would be considering and dealing with the representation [292 D H; 293 F] Smt.
Kavita vs State of Maharashtra, [1982] I S.C.R. 138, followed.
The State Government did not commit any breach of its constitutional or legal obligation in making a reference to the Advisory Board without first determining the period for which the detenu was to be detained.
[296 G] 2:2.
It is not at all necessary for the detaining authority to apply its mind and consider at the time of passing the order of detention or before making a reference to the Advisory Board, as to what shall be the period of detention and whether the detention is to be continued beyond a period of three months or not.
The only inhibition on the detaining authority is that it cannot lawfully continue the detention for a period longer than three months unless the Advisory Board has, before the expiration of the period of three months, reported that there is in its opinion sufficient cause for such detention.
[296 E F] 2:3.
The requirement of clause (4) of Article 22 of the Constitution is satisfied by the enactment of section 8(b) of the COFEPOSA.
This provision for reference to the Advisory Board is not confined to cases where the detaining authority has already come to a decision that the detention shall be continued for a period longer than three months.
It applies equally where the detaining authority has not yet made up its mind as to how long the detention shall continue or even where the detention is to continue for a period of three months or less.
Whenever any order of detention is made, whether the detention is to continue for a period longer than three months or a period of three months or less or the detaining authority has not yet applied its mind and determined how long the detention shall be continued, the appropriate Government is bound within five weeks from the date of detention to make a reference to the Advisory Board and if it fails to do so, the continuance of the detention after the expiration of the period of five weeks should be rendered invalid.
The Advisory Board is, in every such case where a reference is made, required to submit its report 290 within eleven weeks from the date of detention and if it reports that there is in its opinion no sufficient cause for detention, the detaining authority is bound to release the detenu forthwith, even though a period of three months may not have expired since the date of detention.
This is a safeguard provided by the COFEPOSA, which is applicable in all cases of detention, whether the detention is to be continued beyond a period of three months or not and whether or not the detaining authority has applied its mind and determined, before making a reference to the Advisory Board, as to what shall be the period of detention.
[295 F 296 E] 3.
The State Government, in the instant case, cannot be said to be guilty of any unreasonable delay, at any stage, in considering the representation of the detenu.
[297D, 299 B, D]


judgement:
Civil Appeal No. 1932 of 1970.
Appeal by special leave from the judgment and decree dated the 31st December, 1969, of the Madras High Court in Second Appeal No. 348 of 1966, M. Natesan, Mrs. Janaki Ramachandran and K. Kumar for the Appellants.
Vepa P. Sarathy, Gopal Subramanian and Mrs. section Gopalakrishnan, for the Respondents.
The Judgment of the Court was delivered by BAHARUL ISLAM, J.
This appeal by special leave is by the plaintiffs.
The material facts of the case are that the suit land belonged to one Venkataramabhadra Naidu, a Zamindar (hereinafter 'Naidu '), who donated it to Bhoodan Yagna on August 18, 1953 by executing documents, Exs.
B 1 and B 2, which were unregistered deeds.
Later in 1958, in Madras Bhoodan Yagna Act, 1958 (hereinafter 'The Bhoodan Act ') came into force.
The Madras Bhoodan Yagna Board constituted under section 3 of the Bhoodan Act and functioning under the Act allotted the suit land to the defendants who claimed to have been in possession of the land since before the donation.
On August 3, 1960, Naidu sold the suit land to the plaintiff by a registered sale deed for a sum of Rs. 2000.
The plaintiffs alleged that they were in possession of the suit land but as the defendants were interfering in their possession, they filed the suit for declaration of their title to, and possession of, the suit land.
176 The plaintiffs ' case was that as the donation of the land by Naidu was not by any registered deed, no title passed to the Bhoodan Board and subsequently to its allottees, namely, the defendants and that Naidu validly transferred title to them.
The defendants ' case, inter alia, was that the land vested in the Bhoodan Board under the provisions of the Bhoodan Act, and Naidu had no saleable interest thereto which he could transfer to the plaintiffs by the sale deed.
The Trial Court decreed the plaintiffs ' suit.
The decree was upheld by the First Appellate Court on appeal by the defendants.
Both the courts held that the donation of the suit and by Naidu was not in conformity with Section 17 of the Registration Act and Section 12 of the Transfer of Property Act and as such title to the suit land did not pass from Naidu to the Bhoodan Board.
The defendants preferred a second appeal before the High Court.
The High Court reversed the decree of the courts below and dismissed the plaintiffs ' suit.
It has to be mentioned that the First Appellate Court passed its decree on October 1, 1962 while the High Court passed its impugned decree on 31st December, 1969; while in the meantime, in 1964, the Madras Bhoodan Yagna Act of 1958 was amended by the Madras Bhoodan Yagna (Amendment) Act, 1964 (hereinafter 'the Bhoodan (Amendment) Act ').
Learned counsel for the appellants submits that the donation of the suit land by Naidu to the Bhoodan Board was before the passing of the Bhoodan Act of 1958 and the Bhoodan (Amendment) Act of 1964; as such the provisions of these two Acts could not save the donation of the suit land by Naidu to Bhoodan Board from the operation of the relevant provisions of the Transfer of Property Act and the Indian Registration Act.
In other words, the submission is that the donation was invalid for want of a registered deed.
It may be mentioned that counsel of the appellants has not challenged the validity or vires of the provisions of the Bhoodan Act or Bhoodan (Amendment) Act.
His submission is that the above provisions do not have retrospective effect.
The object of the Bhoodan Act is, as it appears from the preamble, "to facilitate the donation of lands for the Bhoodan Yagna 177 initiated by Shri Acharya Vinobha Bhave and the transfer and settlement of such lands for the benefit of landless poor persons or for community purposes and to provide in Gramdan Villages for the vesting of lands in, and the management of those lands by the Sarvodaya Panchayat in the State of Madras." 'Bhoodan Yagna ' has been defined under clause (a) of section 2 as meaning "the movement initiated by Shri Acharya Vinobha Bhave for the acquisition of lands through voluntary gifts for distribution to landless poor persons, cooperative societies or Sarvodaya Panchayats or for community purposes.
" It is why, therefore; it appears, the donations of land to Bhoodan Yagna were exempted from the operation of the Indian Registration Act and the Transfer of Property Act, as it will, presently appear.
I shall first refer to the relevant provisions of the original Bhoodan Act (of 1958) and examine the position of the law that was before the amendment of 1964.
Section 3 of the Bhoodan Act provided for the establishment and incorporation of a Board to be called "The Madras State Bhoodan Yagna Board" (herein after the 'Bhoodan Board ').
Section 11 of the Bhoodan Act provided, "All lands donated for the purposes of the Bhoodan Yagna whether before (emphasis added) or after the commencement of this Act shall, subject to the provisions of section 16, 17 and 20, vest in the State Board".
Section 11 clearly shows that the intention of the Legislature was to bring in to the purview of the Bhoodan Act lands donated by any person before the commencement of the Bhoodan Act.
Clause (a) of sub section (1) of Section 16 which is material is in the following terms: "16(1) Notwithstanding anything to the contrary contained in any other law for the time being in force, (a) any owner may, by declaration made in the prescribed manner, donate his land for the Bhoodan Yagna.
Provided that . . . .
Provided further that . .
Sub section (3) to Section 16 reads: 178 "Every declaration made under sub section (1) shall be filed with the Tahsildar or the Deputy Tahsildar in independent charge having jurisdiction in the taluk or sub taluk where the land is situate." Sub section (1) of Section 17 provided "Every declaration filed under sub section (3) of section 16 shall, as soon as may be, be published in the Fort St. George Gazette and in such other manner as may be prescribed." Any person whose interest were affected by the declaration of the donation might file objections before the Tahsildar or Deputy Tahsildar under sub section (2).
Under sub section (3), the Tahsildar or the Deputy Tahsildar had to register every such objection, fix a date of hearing and give notice of the date of hearing to the donor, and the objector, the Bhoodan Board and the Local Committee concerned, and then under sub section (4), had to investigate and dispose of the objection, and by an order confirm the declaration or declare it null and void.
Sub sections (5) and (6) which are important were in the following terms: "Sub section (5) If the Tahsildar or the Deputy Tahsildar confirms the declaration, then, notwithstanding anything contained in any other law for the time being in force, all the right, title and interest of the donor in such land shall stand transferred to and vest in the State Board for the purchases of the Bhoodan Yagna (emphasis added).
Sub section (6) Every order under sub section (5) confirming a declaration shall be published in the Fort St. George Gazette and on such publication, the donation of land shall, subject to the provisions of section 23, be irrevocable.
" Sub section (5) in clear terms lays down that on the confirmation of the declaration of the donation, notwithstanding the provisions of 'any other law ', (to wit the Transfer of Property Act and the Indian Registration Act in this case) right, title and interest in the land "shall stand transferred to and vest in" the Bhoodan Board.
And after publication of the order of confirmation of the donation, it can be challenged only by a suit contemplated by Section 23.
179 Sub section (1) of section 20 provided that "The State Board shall prepare a list of all lands donated for purposes of Bhoodan Yagna prior to (emphasis added) the commencement of this Act" showing the area, description and other particulars of the land, the name and address of the donor and allied matters.
Sub section (1) to section 20 also shows that the Bhoodan Act was intended to include the donations made prior to the commencement of this Act.
Sub section (2) provides for publication of the list prepared under sub section (1) in the Fort St. George Gazette.
The proviso added after sub section (3) of section 20, and sub section (4) of section 20 are important and need be extracted.
They are as follows: "Sub section (3). . .
Provided that where an order is made by the Inquiry Officer under sub section (4) of section 17 confirming the donation, such donation shall be deemed to have been accepted with effect from the date on which the donation was made and for this purpose, this Act shall be deemed to have been in force on such date.
Sub section (4) Where such land has been granted to any person it shall, with effect from the date of grant, be deemed further to have been granted to the grantee under and in accordance with the provisions of Section 19." These two are deeming provisions and are a complete answer to the appellants ' contention.
The meaning of the proviso is that although the Bhoodan Act was not in existence at the time a donation was made its acceptance by the Tahsildar or Deputy Tahsildar later on after the commencement of the Act, (as in the case in hand), by virtue of the deeming provision, the Act shall be deemed to be in existence on the date of the donation.
Sub section (4) had made a similar deeming provision for the grant made in favour of a grantee before the coming into force of the Bhoodan Act.
Section 24 reads: "Notwithstanding anything contained in any other law, every declaration and every grant of land made or deemed to have been made under this Act shall be and be deemed always to have been exempt from the payment of stamp duty and of encumbrance certificate fee, registration fee or of the fee payable for the attestation of a power of attorney under section 33, sub section 180 (2), of the Indian (Central Act XVI of 1908)." (emphasis added).
The provision of this section also shows that donations and grants under the Bhoodan Act were exempted from the provisions of the Transfer of Property Act and the Indian with retrospective effect.
The above considerations leave no doubt at all that the provisions of the Bhoodan Act had retrospective effect and intended to include donations of land by any person to the Bhoodan Yagna made before the commencement of the Bhoodan Act, and such donations were also exempted from the relevant provisions of the Transfer of Property Act and the Indian with retrospective effect.
Section 23 made the order of Tahsildar or Deputy Tahsildar under sub section (4) of Section 17, final and not subject to appeal or revision.
An aggrieved party however was not without remedy.
Under the proviso of section 23, any person whose interest was affected as a result of the donation to the Bhoodan Yagna, whether before or after the commencement of the Act, might file a suit to set aside the order of the Tahsildar or the Deputy Tahsildar.
The plaintiffs in the present suit (appellants before us) filed no such suit.
Let us now turn to the relevant provisions of the Bhoodan (Amendment) Act of 1964.
There was no material amendment to section 16 of the original Act.
Only "The State Board" was substituted for "Tahsildar or Deputy Tahsildar".
There was also no material amendment to Section 17.
"Tahsildar or Deputy Tahsildar" was replaced by 'Inquiry Officer '.
Only with the substitution of 'Inquiry Officer ' for 'Tahsildar or Deputy Tahsildar ', section 20 and section 23 have been retained.
Section 24 as amended is as follows: "Notwithstanding anything contained in any other law, every declaration and every grant of land made or deemed to have been made under this Act shall be and be deemed always to have been exempt from registration and payment of stamp duty and of encumbrance certificate fee.
" A comparison of the new section 24 with the old section 24 shows that there has been no change in the law so far as registration and stamp duty were concerned.
181 10.
Section 11 of the Bhoodan (Amendment) Act of 1964 is new and very important.
Clauses (b) and (c) which are material for our purpose need be extracted: "Section 11 Notwithstanding anything contained in any judgment, decree or order of any Court, no donation of any land for the Bhoodan Yagna or for Gramdan and no grant of any such land made or deemed to have been made under the principal Act as in force immediately before the commencement of this Act, shall be deemed to be invalid on the ground only that the donation or the grant of land as aforesaid was not made in accordance with any law relating to transfer of property or registration, and any such donation or grant of land shall, for all purposes, be deemed to be and to have always been validly made and accordingly (a) . . (b) no suit or other proceeding shall be maintained or continued in any Court for the declaration of title to, or the recovery of possession of, any land donated for the Bhoodan Yagna or for Gramdan on the ground that the donation was not made in accordance with the law relating to transfer of property or registration; (c) no Court shall enforce any decree or order declaring any donation of land for the Bhoodan Yagna or for Gramdan to be invalid or directing the recovery of possession of any such land by the person who donated it or any other person claiming under him, on ground referred to in clause (b): Provided that. . .
Provided further that. . .
Provided also that. . . . Explanation. . . . . " Clause (b) of section 11 of the Bhoodan (Amendment) Act puts a bar on the maintenance of a suit or other proceedings in any Court for the declaration of title to, or recovery of possession of, any land donated for the Bhoodan Yagna on the ground that the transfer (donation) was not in accordance with the provisions of the 182 Transfer of Property Act or Indian .
Clause (c) to section 11 goes one step further and lays down that even if a decree has already been passed in such a suit, no court shall execute a decree in a suit referred to in clause (b).
It is thus seen that the law both under the old and the new Acts so far as the operation of the provisions of the Transfer of Property Act and the is concerned, is the same.
The law ingrained in section 11 is merely declaratory in express terms of the already existing law under the Bhoodan Act of 1958.
The second appeal that was pending before the High Court fell within the mischief of clause (b) of section 11.
Even if there had been no appeal by the defendants, the execution of the decree passed by the First Appellate Court could have been successfully objected to by the defendant or any other person as void on the ground that the suit itself was barred under section 23 of the old Act itself.
This appeal has no merit and is dismissed with costs.
N.K.A. Appeal dismissed.

summary/full:
The suit land belonged to one Naidu who donated it to Bhoodan Yagna in 1953 through unregistered deeds.
Later the Madras Bhoodan Yagna Act 1958 came into force and this Act of 1958 was further amended by Bhoodan (Amendment) Act 1964.
The said land was allotted to the respondents under the Act who claimed to have been in possession of the land since before the donation.
Naidu sold the suit lands to the appellants by a registered sale deed.
The appellants filed the suit for declaration of their title to, and possession of, the said land and pleaded that (i) as the donation of the land by Naidu was not by any registered deed, no title could be passed to the Bhoodan Board and subsequently to the respondents and (ii) Naidu validly transferred title of the lands to them.
The respondents pleaded that (i) the land vested in the Bhoodan Board under the Bhoodan Act and (ii) Naidu had no saleable interest thereto which he could transfer to the appellants by the deed of sale.
The trial court decreed the appellant 's suit which was upheld by the first appellate court.
The respondents preferred second appeal before the High Court which reversed the decree of the courts below and dismissed the plaintiff 's suit.
On appeal, it was argued by the appellants that the donation was invalid for want of registered deed and the provisions of the Bhoodan (Amendment) Act do not have retrospective effect.
Dismissing the appeal, ^ HELD: 1.
The object of the Bhoodan Yagna Act is "to facilitate the donation of lands for the Bhoodan Yagna initiated by Shri Acharya Vinoba Bhave and the transfer and settlement of such land for the benefit of poor landless persons or for community purposes and to provide in Gramdan villages for the vesting of lands in, and the management of those lands by the Sarvodaya Panchayat in the State of Madras." [176 H, 177 A B] 2.
Section 11 clearly shows that intention of the Legislature was to bring in to the purview of the Bhoodan Act lands donated by any person before the commencement of the Bhoodan Act.
The law ingrained in section 11 is merely declaratory in express terms of the already existing law under the Bhoodan Act of 1958.
[177 E F, 182 B] 175 3.
Clause (b) of section 11 of the Bhoodan (Amendment) Act puts a bar on the maintenance of a suit or other proceedings in any Court for the declaration of title to, or recovery of possession of, any land donated for the Bhoodan Yagna on the ground that the transfer (donation) was not in accordance with the provisions of the Transfer of Property Act or Indian Registration Act.
Clause (c) to section 11 goes one step further and lays down that even if a decree has already been passed in such a suit, no court shall execute a decree in a suit referred to in clause (b).
[181 G H, 182 A B] 4.
Section 24 of the Act leaves no doubt that the provisions of the Bhoodan Act had retrospective effect and intended to include donations of land by any person to the Bhoodan Yagna made before the commencement of the Bhoodan Act, and such donations were also exempted from the relevant provisions of the Transfer of Property Act and the Indian Registration Act with retrospective effective.
[180 B C]


judgement:
ivil Appeal No. 1558 (L) of 1978.
Appeal by special leave from the Award dated the 4th August, 1977 of the Industrial Tribunal Maharashtra, Bombay in Reference (IT) No. 248 of 1975 published in M.O.G. Part I (L) dated 3rd November, 1977.
C.L. Dudhia, K.L. Hathi and Mrs. Hemantika Wahi, for the Appellant.
G.B. Pai, Manik A. Gagrat, G. Subramaniam, S.S. Shroff, D.P. Mohanty and T.R. Das, for the Respondents.
This appeal by special leave is directed against the award of the Industrial Tribunal Maharashtra, Bombay, dated September 22, 1977, in Reference (I.T.) No. 248 of 1975 in the industrial dispute between the respondent and the workmen employed by it and published in Maharashtra Government Gazette on November 3, 1977.
Though the demands made by the workers ' Union and the adjudication thereon by the Tribunal related to items like wage scale, dearness allowance, extra show allowance, gratuity, service conditions of non permanent staff and retrospectivity, while granting special leave this Court confined the appeal to three points, namely, (i) retrospectivity of the award, (ii) linkage of dearness allowance to some rational principle and (iii) construction of section 4 (5) of the , and leave was expressly refused in regard to the other grounds mentioned in the special leave petition.
We, therefore, proceed to deal with the aforesaid three points on which arguments were advanced before us by counsel on either side.
It may be stated that prior to the impugned award the wages and gratuity of the workers were governed by the earlier award in Reference No. 1 of 1968 published on 3.7.1969 which was effective from 1.1.1967 while dearness allowance was governed by the award in Reference No. 440 of 1970 effective from 1.1.1970 Both these 167 awards were duly terminated by notice and fresh demands for revision of wage scales, dearness allowance, etc.
effective from 1.1.1974 were submitted by the Union to the Management on 15.4.1974.
The Reference to the Tribunal was made on 10.7.1975 and by the impugned award the Tribunal granted the revision in wage scales and dearness allowance with effect from 1.1.1977.
Counsel for the appellant Union contended that the Tribunal erred in not granting the revision with effect from 1.1.1974 as demanded and at any rate the same should have been granted from 10.7.1975 being the date of Reference, especially when the Tribunal found the financial capacity of the respondent very sound and admittedly there had been a steep rise in the cost of living index.
He pointed out that the Tribunal while refusing to grant retrospective effect had erroneously observed that there will be "too much financial burden on the company" as, according to him, such additional burden could not have been more than Rs. 1,00,000/ or Rs. 1,20,000/ a year during the three years 1974, 1975 and 1976.
In support of his contention counsel referred to three decisions of this Court, namely, Wenger and Co. and others vs Their Workmen, Bengal Chemical and Pharmaceutical Works, Ltd. vs Its Workmen and another and Hydro (Engineers) (Pvt.) Ltd. vs Their workman.
It is difficult to accept this contention and interfere with the discretion exercised by the Tribunal in the matter which can be done only if it is shown to have been unreasonably exercised.
Under section 17A(4) of the it is a matter of discretion for the Tribunal to decide having regard to the circumstances of each case from which date its award should come into operation and no general rule can be laid down as to the date from which the Tribunal should bring its award into force and this Court shall not interfere with the Tribunal 's order in that behalf unless substantial ground is made out showing unreasonable exercise on its part.
Even the three decisions cited by the counsel clearly brings out the aforesaid position in law.
The Tribunal was deciding the Reference in August 1977 and though the additional burden may not have been more than Rs. 1,00,000/ or Rs. 1,20,000/ per year for the three years 1974, 1975 and 1976 if retrospective effect was given to the revision, no material was placed before the Tribunal by either party as to whether the profits earned by the Company for the said three years had been disbursed or were still available with the company at 168 the time of making the award a factor relevant on the question of granting retrospectivity.
Even before us no light could be thrown on the point by counsel on either side.
Further there was on record a statement showing the financial position of the company for the years 1968 to 1975 (year ending being 31st August) produced by the appellant Union itself at exhibit U5 which clearly showed that the profits of the company before taxation and depreciation had dwindled consistently for the years 1973, 74 and 75, such profits for each of the said three years being Rs. 6,80,912/ , Rs. 6,51,181/ and Rs. 5,70,884/ .
Presumably it was in view of such decreasing trend in the profits made by the company during the three years that the Tribunal felt that it would be proper to give the revision in wage scales and dearness allowance only from 1.1.1977 onwards and not to give any retrospective effect.
It cannot be said that the discretion has been unreasonably exercised by the Tribunal.
Coming to the second point of linkage of dearness allowance with some rational principle the Union 's contention before the Tribunal was, and the same contention has been reiterated by the counsel for the Union in the appeal that the dearness allowance should be linked with the cost of living index and Consumers ' Price Index Number.
It was pointed out that the Bombay Working Class Consumers ' Price Index was 800 in 1970 (when the earlier award in the matter of D.A. was given), that it had gone upto 1372 in 1977 and that, therefore, dearness allowance on Index No. 999 1,000 should be fixed on 4 weekly basis with a variation for every ten points rise or fall.
But the Tribunal negatived the contention and fixed the dearness allowance on the normal principle of industry cum region and only reason for not linking it to the cost of living index was that such linkage did not obtain in any concern falling in the category of Cinema Exhibiting Industry which could not be compared with manufacturing industries like textile where such linkage operated.
Counsel for the appellant Union pointed out that the same adjudicator (Shri B.B. Tambe) as Sole Arbitrator in Reference (VA) No. 1 of 1979 in the industrial dispute between M/s Alankar Theatre and 38 other theatres of Bombay (cinemas falling in classes A 1, A, B and C) and the workmen employed under them had made an award on June 27, 1980 (published in Maharashtra Government Gazette on October 9, 1980) wherein dearness allowance has been linked with the rise in the cost of living index and the Consumers ' Price Index Number.
The result has been that in Cinema Exhibiting Industry all the other 39 theatres will be paying to their workers dearness allowance linked with the cost of living index while 169 in the case of workmen of Metro Theatre these will be no such linkage which would be contrary to normal uniformity which is always desirable in one and the same industry.
We find considerable force in this contention urged by counsel for the appellant Union.
On the other hand, counsel for the Company pointed out that the aforesaid award of Shri Tambe in Reference(VA)No.
1 of 1979 dated June 27, 1980 is under challenge before the Bombay High Court in Writ Petition No. 79 of 1981 at the instance of the management and as such the question whether dearness allowance in the Cinema Exhibiting Industry should be linked with the cost of living index is still pending consideration before the High Court.
Moreover, he urged that there are certain peculiar features of the Cinema Exhibiting Industry by reason of which it would be inappropriate to link the dearness allowance payable to worker in that industry with the cost of living index.
For instance, he pointed out, that unlike manufacturing concerns.
there is little scope for enhancing the profits in Cinema Exhibiting Industry inasmuch as the principal source of income being box office collection the same is connected with and limited by the seating accommodation in any theatre.
However, notwithstanding this limiting factor the same adjudicator has granted the linkage in case of 39 cinema houses in Bombay which shows that other factors must have weighed with him as outweighing this limiting factor.
We are clearly of the opinion that uniformity on this aspect is highly desirable in one and the same industry.
The main reason for the refusal to grant such linkage (i.e. linking the D A. with the cost of living index) having disappeared the question will have to be considered afresh.
We do not think that adequate and sufficient material is available on the record of this case before us to decide this issue satisfactorily.
Further it would not be advisable to direct the parties before us to intervene in the matter pending before the High Court, for, material which may be peculiar to Metro Cinema may have to be produced and considered before the issue is properly decided.
We, therefore, remand this issue back to the Industrial Tribunal for disposal in accordance with law with a direction that the Tribunal should give opportunity to both the parties to produce additional material and after hearing them should decide the same afresh.
It will be open to the management to raise all contentions including the contention that dearness allowance should not be linked with cost of living index but should be granted on normal principle of industry cum region formula.
We wish to make it clear that in case the issue is answered by the Tribunal in favour of the company, the appellant Union shall not raise any contentions on the quantum of dearness allowance that has been 170 allowed by the Tribunal in its award on the basis of industry cum region formula, for the quantum aspect of the revision has become final by reason of the limited leave that was granted by this Court while admitting the appeal.
We shall next deal with the last question pertaining to the construction of section 4(5) of the .
The question of construction arises this way.
It appears that existing scheme of gratuity in the Metro Theatre Bombay was as per the award in Reference (IT No. 1 of 1968 and the same had been modified by an agreement between the parties in this Court, which, the Union contended, had become extremely inadequate and desired to have a more beneficial scheme in some respect for its workers.
Counsel for the Union urged that it was open to the Tribunal to give more benefits than were available under the scheme contemplated by the Act and in that behalf reliance was placed on section 4(5) of the Act.
Counsel for the Company contended the expression 'award ' in section 4(5) meant an existing award and as such if under the existing award better terms were given to the employees these will not be affected.
It was also urged that the Act was exhaustive and was intended to ensure uniform payment of gratuity to the employees throughout the country.
The Tribunal accepted the contention of the Management and held that it could not go beyond the scheme contemplated by the Act, and, therefore directed that the gratuity scheme as per the Act shall prevail subject to the modifications arrived at under the terms of settlement, if any, if they were more beneficial.
Counsel for the appellant Union urged before us that no standardisation of any gratuity scheme was contemplated by the Act as was clear from the express provisions contained in section 4(5) and section 5 of the Act and that enactment being a beneficial piece of legislation section 4(5) should be construed in favour of the employees and that, therefore, the Tribunal 's view that it could not grant anything beyond the scheme contemplated by the Act was erroneous.
In support of such construction reliance was placed upon this Court 's decision in Alembic Caemical Works Company Ltd. vs Its Workmen where a similar provision under the Factories Act was construed as conferring power on the Tribunal to fix the quantum 171 of leave on a scale more liberal than the one provided by the Act.
We find considerable force in this submission.
Section 4(1) of the Act provides that the gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years (a) on his superannuation, or (b) on his retirement or resignation, or (c) on his death or disablement due to accident or disease; sub section
(2) provides that for every completed year of service or part thereof in excess of six months, the employer shall pay gratuity to an employee at the rate of fifteen days ' wages based on the wages last drawn by the employee and sub section
(3) provides that the amount of gratuity payable to an employee shall not exceed 20 months ' wages.
This is the main scheme of gratuity contemplated by the Act.
Then comes sub section
(5) which runs thus: "5.
Nothing in this section shall affect the right of an employee to receive better terms of gratuity under any award or agreement or contract with the employer.
" The question for consideration is whether expression 'award ' occurring in the above provision means an existing award or would include any award whatsoever to be made by an adjudicator under the .
In the first place there is nothing in the provision which limits the expression 'award '.
Secondly, it cannot be and was not that under the above provision a gratuity scheme obtaining under an existing agreement or contract could be improved upon by a fresh agreement or fresh contract between the employer and the employee and if that be so there is no reason why the expression 'award ' should be construed as referring to an 'existing award ' and not to include a fresh award that may be made by an adjudicator or an Industrial Court improving in favour of the employees the scheme obtaining under the Act or the existing award.
Thirdly, the very fact that under the above provision better terms of gratuity could be obtained by employee by an agreement or contract with the employer notwithstanding the scheme of gratuity obtaining under the Act clearly suggests that no standardisation of the gratuity scheme contemplated by the Act was intended by the Legislature.
This also becomes amply clear from the provisions of section 5 which confer power upon the appropriate Government to exempt establishment to which the Act applies from operation of the provisions of the Act if in its opinion the employees in such establishment, are in receipt of gratuity benefits not less favourable than benefits confer 172 red under the Act.
Therefore, on true construction we are clearly of the view that the expression 'award ' occurring in the above provisions does not mean and cannot be confined to 'existing award ' but includes any award that would be made by an adjudicator wherein better terms of gratuity could be granted to the employees if the facts and circumstances warrant such grant.
It is true, as has been observed, by this Court in State of Punjab vs Labour Court Jullundur and Ors.
that the Act enacts a complete Code containing detailed provisions covering all essential features of the scheme for payment of gratuity.
But it is also clear that the scheme envisaged by the enactment secures the minimum for the employees in that behalf and express provisions are found in the Act under which better terms of gratuity if already existing are not merely preserved but better terms could be conferred on the employee in future.
In other words, the view taken by the Tribunal that it could not go beyond the scheme of gratuity contemplated by the Act is clearly erroneous.
The decision of this Court in Alembic Chemical Works Limited (supra), which was under the Factories Act, also lends support to such beneficent construction.
In that case the Industrial Tribunal had fixed the quantum of leave, privilege and sick, for the staff of a manufacturing concern on a scale more liberal than the one in force for the operatives of the same concern.
In also made necessary direction regarding accumulation of such leave.
The quantum of leave so fixed by the Tribunal was larger than the quantum of leave prescribed under the provisions of section 79(1) of the Factories Act.
It was contended that section 79 of the Act was exhaustive and had self contained provisions with regard to the granting of annual leave with wages to the employees, that it had the effect of introducing standardisation in the matter of leave and that no addition to the said leave could be made either by a contract or by an award.
This Court negatived the said contention on the language of section 79(1) itself.
Additionally, provisions of section 78 were relied upon which recognised exemptions to the leave prescribed by section 79(1).
Section 78(1) provided that provisions of Chapter VIII including section 79(1) shall not operate to the prejudice of any right to which a worker may be entitled "under any other law or under the terms of any award, agreement or contract of service", and a proviso to this sub section laid down that when such award, agreement or contract of service provided for longer annual leave with wages than provided under the 173 Chapter, the worker shall be entitled only to such longer annual leave.
It was contended that the expression "any award" in section 78(1) applied only to existing award.
The Court negatived this contention and held that the contention was plainly inconsistent with a fair and reasonable construction of the said provision and that section 78(1) protected not merely awards, agreements or contracts of service then existing but also those that would come into existence later.
In the instant case also we are clearly of the opinion that the phrase "under any award, agreement or contract with the employer" occurring in section 4(5) is intended to cover future awards, agreements or contracts with the employer since existing better terms of gratuity are intended to be protected by issuance of a notification under section 5 of the Act.
We may also state here that in the other adjudication done by the same adjudicator (Shri B.B. Tambe) as the Sole Arbitrator in Reference (VA) No. 1 of 1979 (M/s. Alankar Theatre and 38 other theatres vs The workmen employed under them) he has come to a contrary conclusion and has held that under section 4(5) of the payment of Gratuity Act an adjudicator can grant better terms of gratuity and has actually proceeded to grant better terms of gratuity to the workmen employed in all the theatres concerned in that Reference.
(Vide para 140 of the Award).
Realising this position, counsel for the company before us fairly conceded that the employees in the Metro Cinema would also be entitled to better terms of gratuity the same as given to employees in other cinema Houses.
Counsel for the parties, therefore, agreed before us that gratuity scheme as set out by Shri Tambe in para 140 of his award dt.
27 6 1980 in Reference (VA) No. 1 of 1979 should apply to the workmen of Metro Cinema.
We accordingly, direct that the gratuity scheme as set out in paragraph 140 of the above award would be applicable to the workmen of Metro Cinema with effect from 1.1.1977.
In the result the appeal is partly allowed on the point of gratuity as indicated above and on the question of linkage the appeal is remanded to the Tribunal for disposal according to law as directed above.
The appeal as regards retrospectivity is dismissed.
In the circumstances the parties will bear their own costs.
V.D.K. Appeal allowed in part.

summary/full:
The wages and gratuity of the workers of Metro Theatre were governed by an earlier award in Reference No. 1 of 1968 published in 3 7 1969 which was effective from 1 1 1967, while dearness allowance was governed by the award in Reference No. 440 of 1970 effective from 1 1 1970.
Both these awards were duly terminated by notice and fresh demands for revision of wage scales, dearness allowance, etc.
effective from 1 1 1974 were submitted by the workers Union to the Management on 15 4 1974.
A reference (IT) No. 248 of 1975 was made on 10 7 1975 to the Industrial Tribunal which by its award dated September 22, 1977 published in Maharashtra Government Gazette on November 3, 1977 granted the revision in wage scales and dearness allowance with effect from 1 1 1977.
While granting special leave against the impugned award the Court confined the appeal to three points, namely: (i) retrospectivity of the award: (ii) linkage of dearness allowance to some rational principle and (iii) construction of section 4(5) of the Payment of Gratuity Act, 1971.
Allowing the appeal in part on the point of gratuity and remanding to the Tribunal on the question of linkage of dearness allowance, the Court.
^ HELD: 1.
Under section 17A(4) of the it is a matter of discretion for the Tribunal to decide having regard to the circumstances of each case from which date its award should come into operation and no general rule can be laid down as to the date from which the Tribunal should bring its award into force and the Supreme Court shall not interfere with the Tribunal 's order in that behalf unless substantial ground is made out showing unreasonable exercise or its part.
In the instant case, in the absence of any material placed before the Tribunal or even before the Supreme Court by either party as to whether the profits earned by the Company for the years 1974, 1975 and 1976 had been disbursed or were still available with the Company at the time of making the award, a factor relevant on the question of granting retrospectivity and also in view of decreasing trend in the profits made by the Company during the said three years, according to the Exhibit U 5 marked by the appellant Union itself, presumably the Tribunal felt that it would be proper to give the revision in wage scales and dearness allowance only from 1 1 1977 onwards and not to give any retrsopective effect.
[167 E H, 168 A C] 165 Wenger and Co. and others vs Their Workmen, 1963 II L.L.J. 403: Bengal Chemical and Pharmaceutical Works Ltd. vs Its Workmen and Another, 1969 I L.L.J. 751 and Hydro (Engineers) (Pvt.) Ltd. vs Their Workmen, 1969 I L.L.J. 713, followed.
On the question of linkage of dearness allowance with some rational principle, uniformity is highly desirable in one and the same industry.
The very same adjudicator, Shri B.B. Tambe, yet in other Reference (VA) No. 1 of 1979 dated June 27, 1980 had awarded payment of dearness allowance linked with the cost living index, while in the instant case, fixed dearness allowance on the normal principle of industry cum region.
[168 C, G H, 169 A] 3:1.
On true construction of section 4(5) of the Payment of Gratuity Act, the expression "award" occurring in the said provision does not mean and cannot be confined to "existing award" but includes any award that would be made by an adjudicator wherein better terms of gratuity could be granted to the employees if the facts and circumstances warrant such grant.
In the first place, there is nothing in the provision which limits the expression "award".
Secondly, it cannot be and was not that under the above provision a gratuity scheme obtaining under existing agreement or contract could be improved upon by a fresh agreement or fresh contract between the employer and the employee and if that be so, there is no reason why the expression "award" should be construed as referring to an existing award and not to include a fresh award that may be made by an adjudicator or an Industrial Court improving in favour of the employees the scheme obtained under the Act or the existing award.
Thirdly, the very fact that under the above provision better terms of gratuity could be obtained by an employee by an agreement or contract with the employer notwithstanding the scheme of gratuity obtaining under the Act clearly suggests that no standardisation of the gratuity scheme contemplated by the Act was intended by the Legislature.
[171 D H, 172 A] 3:2.
It is true that the Payment of Gratuity Act enacts a complete Code containing detailed provision covering all essential features of the scheme for payment.
But it is also clear that scheme envisaged by the enactment secures the minimum for the employees in that behalf and express provisions are found in the Act under which better terms of gratuity if already existing are not merely preserved but better terms could be conferred on the employee in future.
[172 A C] State of Punjab vs Labour Court Jullundur and Ors. ; , followed.
Alembic Chemical Works Company Ltd. vs Its Workmen, , explained.
The phrase "under any award, agreement or contract with employer" occuring in section 4(5) of the Payment of Gratuity Act is intended to cover future awards agreements or contracts with the employer since existing better terms of gratuity are intended to be protected by issuance of a notification under section 5 of the Act.
[173 B C] 166 [To maintain uniformity and to be in conformity with the Award made by the same adjudicator in Reference (VA) No. 5 of 1970 M/s. Alankar and 39 others vs The Workmen employed under them, the Court directed that the gratuity scheme as set out in paragraph 140 of that award be applicable to the workmen of Metro Cinema with effect from 1 1 1970.]


judgement:
Civil Appeal No. 2173 of 1970.
From the judgment and order dated 29th October, 1969 of the Madhya Pradesh High Court in Misc.
Petition No. 89 of 1967.
Gyan Chand Mathur and A.G. Ratnaparkhi for the Appellant.
D.P. Mohanty and R.A. Shroff for Respondent No. 1.
The judgment of the Court was delivered by KOSHAL J.
This is an appeal by certificate granted by the High Court of Madhya Pradesh against a judgment of a learned Single Judge of that Court dismissing with costs a petition filed by the present appellant under article 226 of the Constitution of India challenging his demotion from the post of Superintendent of Police to that of Deputy Superintendent of Police.
The facts giving rise to the dispute between the appellant and the State of Madhya Pradesh are now admitted on all hands and may be briefly stated.
Prior to 13th April 1960 the appellant was a member of the Madhya Pradesh State Police Service and was working as a Deputy Superintendent of Police.
On that date a meeting of the Committee set up in accordance with regulation 3 of the India Police Service (Appointment by Promotion) Regulations, 1955 (hereinafter called the Regulations) was held, and therein was prepared a list of such members of the State Police Service as were eligible and suitable for promotion to the Indian Police Service.
The said Committee is popularly known as the "Selection Committee" and will be so referred to hereinafter.
The list was approved by the Union Public Service Commission and thus became the Select List as envisaged in regulation 7 of the Regulations.
The appellant was accordingly promoted to the Indian Police Service and was posted as a Superintendent of Police which position he held till the impugned reversion effected by an order dated 11th September, 1964.
The reason for that reversion was that on the 18th of 355 September 1963 the Selection Committee reviewed the Select List, A purporting to act in accordance with regulation 5 of the Regulations and recommended that the appellant and 27 others be superseded The sole ground for the supersession was thus stated by the Selection Committee: "The Committee consider that, on an overall assessment, the records of these officers are not such as to justify their appointment to the Indian Police Service at this stage.
The reversion of the appellant was challenged before the High Court with the contention inter alia that the ground set out by the Selection Committee in that behalf did not specify any reason, good, bad or indifferent, for his supersession, that under regulation 5 of the Regulations it was duty of the Selection Committee to record reasons and that not having been done the review of the Select List made on the 18th of September, 1963 was clearly in contravention of the Regulations and, therefore, as good as non est.
Th contention was turned down by the learned Single Judge of the High Court, who dismissed the appellant 's petition, with the following observations: "The contention of learned counsel for the applicant that the giving of reasons under sub regulation (5) of regulation 5 for superseding an officer makes the order justiciable, does not appeal to us.
It is not for the Court to see whether the reasons given by the Committee are sufficient or not, but it is for the State Government and the Central Public Service Commission to see the sufficiency of the reasons.
" The contention thus rejected has been reiterated before us.
Regulations 5 and 7 of the Regulations may be reproduced here with advantage: "5.
Preparation of a list of suitable officers.
(1) The Committee shall prepare a list of such members of the State Police Service as satisfy the condition specified in regulation 4 and as are held by the Committee to be suitable for promotion to the Service.
356 (2) The selection for inclusion in such list shall be based on merit and suitability in all respects with due regard to seniority.
(3) The names of the officers included in the list shall be arranged in order of seniority in the State Police Service; Provided that any junior officer who in the opinion of the Committee is of exceptional merit and suitability may be assigned a place in the list higher than that of officers senior to him.
(4) The list so prepared shall be reviewed and revised every year.
(5) If in the process of selection, review or revision it is proposed to supersede any members of the State Police Service, the Committee shall record its reasons for the proposed supersession.
Select List.
(1) The Commission shall consider the list prepared by the Committee along with the other documents received from the State Government and, unless it considers any change necessary, approve the list.
(2) If the Commission consider it necessary to make any changes in the list received from the State Government, the Commission shall inform the State Government of the changes proposed and after taking into account the comments, if any, of the State Government, may approve the list finally with such modification, if any, as may, in its opinion, be just and proper.
(3) The list as finally approved by the Commission shall form the Select List of the members of the State Police Service.
(4) The Select List shall ordinarily be in force until it is reviewed or revised in accordance with sub regulation (4) of regulation 5: 356 Provided that in the event of a grave lapse in the conduct or performance of duties on the part of any member of the State Police Service included in the Select List, a special review of the Select List may be made at any time at the instance of the State Government and the Commission may.
if it so thinks fit, remove the name of such member of the State Police Service from the Select List.
" It is not disputed that a Select List may be reviewed as stated in sub regulation (4) of regulation 7 read with sub regulation (5) of regulation 5.
So all that has to be determined is whether the Selection Committee was bound to give reasons for the supersession of the appellant and whether the note recorded by it which sets out the ground for supersession does give any reason at all.
The matter is really covered by a decision of this Court in Union of India vs Mohan Lal Capoor and others.
In that case also the ground set out by the Selection Committee for the proposed supersession was: "On an over all assessment, the records of these officers are not such as to justify their appointment to the Indian Administrative Service/Indian Police Service at this stage in preference to those selected.
" Except for the words "in preference to those selected" the ground just above set out is identical with the ground given by the Selection Committee in the case of the appellant.
Rejecting this ground as being no statement of reasons within the meaning of sub regulation (5) of regulation 5, Mathew, J., speaking for the Court, observed: "We next turn to the provisions of Regulation 5 (5) imposing a mandatory duty upon the Selection Committee to record "its reasons for proposed supersession".
We find considerable force in the submission made on behalf of the respondents that the "rubber stamp" reason given mechanically for the supersession of each officer does not amount to "reasons for the proposed supersession.
" 358 the most that could be said for the stock reason is that it is a general description of the process adopted in arriving at a conclusion.
This apology for reasons to be recorded does not go beyond indicating a conclusion in each case that the record of the officer concerned is not such as to justify his appointment "at this stage in preference to those selected".
"In the context of the effect upon the rights of aggrieved persons, as members of a public service who are entitled to just and reasonable treatment, by reason of protections conferred upon them by articles 14 and 16 of the Constitution, which are available to them throughout their service, it was incumbent on the Selection Committee to have stated reasons in a manner which would disclose how the record of each officer superseded stood in relation to records of others who were to be preferred, particularly as this is practically the only remaining visible safeguard against possible injustice and arbitrariness in making selections.
If that had been done, facts on service records of officers considered by the Selection Committee would have been correlated to the conclusions reached.
Reasons are the links between the materials on which certain conclusions are based and the actual conclusions.
They disclose how the mind is applied to the subject matter for a decision whether it is purely administrative or quasi judicial.
They should reveal a rational nexus between the facts considered and the conclusions reached.
Only in this way can opinions or decisions recorded be shown to be manifestly just and reasonable.
We think that it is not enough to say that preference should be given because a certain kind of process was gone through by the Selection Committee.
This is all that the supposed statement of reasons amounts to.
We, therefore, think that the mandatory provisions of Regulation 5 (5) were not complied with.
" With respect we fully agree and hold that the Select List prepared in accordance with the recommendations of the Selection Committee made in its meeting held on the 18th of September 1963 contravened the mandate in sub regulation 5 of regulation 5. 5.
In the result we accept the appeal, set aside the impugned judgment and quash the Select List just above mentioned in so far 359 as it relates to the appellant, as also the order of his reversion.
He shall be entitled to all consequential benefits even though he has since retired from service.
In the circumstances of the case, however, we leave the parties to bear their respective costs.
P.B.R. Appeal allowed.

summary/full:
On being selected by a Selection Committee constituted under the Indian Police Service (Appointment by Promotion) Regulations, 1955 the appellant, a Deputy Superintendent of Police prior to 13th April, 1960, was promoted as Superintendent of Police.
In September, 1963, purporting to act under regulation 5 of the Regulations, the Selection Committee recommended his supersession, along with some others, on the ground that the Committee considered that the records of "the officers were not such as to justify their appointment to the Indian Police Service at this stage".
He was reverted in September.
Before the High Court the appellant contended that the Selection Committee 's failure to specify the reasons for his supersession, in contravention of the Regulations, rendered the list non est.
This plea was rejected.
Allowing the appeal: ^ HELD: The Select List reverting the appellant to a lower post prepared in accordance with the recommendations of the Selection Committee contravened the mandate in sub regulation (5) of Regulation 5.
[358 G] Regulation 5(5) imposed a mandatory duty upon the Selection Committee to record its reasons for the proposed supersession.
In the context of the protection conferred on public servants by articles 14 and 16 of the Constitution it was incumbent on the Selection Committee to have stated reasons in a manner which would disclose how the record of each officer superseded stood in relation to the records of others who were to be preferred.
This is the only visible safeguard against possible injustice and arbitrariness in making selections.
Had that been done it would have been possible to correlate facts on service records considered by the Selection Committee with the conclusions reached.
[358 C] 354 Reasons which are the links between the materials on which certain conclusions are based and the actual conclusions disclose how the mind is applied to the subject matter for a decision, They should reveal a rational nexus between the facts considered and the conclusions reached.
[358 E] Union of India vs Mohan Lal Capoor & Ors., ; ; applied.