judgement:
No. 1685 1691 of 1979 Under Article 32 of the Constitution of India.
Soli J. Sorabjee and K.C. Dua for the Petitioners.
V. Parthasarthy, Girish Chandra and C.V. Subba Rao for the Respondents.
The Order of the Court was delivered by THAKKAR,,J. The question raised in this Writ Petition under Article 32 of the Constitution of India as regards the determination of the market value of the goods manufactured by the petitioner company for the purposes of computation of the excise duty leviable on the same.
The petitioners (manufacturers) are manufacturing electrical goods under a contract with another company known as the Bajaj Electricals Ltd. (here after referred to as buyers).
The agreement between the parties provides for the buyers having the right to reject the 84 goods if the goods are not in accordance with the buyers ' specifications or do not come up to the stipulated standard of quality.
After the manufactured goods are tested, ap proved and accepted, by the buyers the manufacturers apply the label of the brand name of the buyers (in this case 'Bajaj ') on the manufactured goods.
The petitioners contend that the market value of the goods manufactured by the petitioners should be assessed at the price at which the goods are agreed to be sold under the agreement between the manufacturers and the buyers.
On the other hand the respond ent contents that the excise duty must be levied on the basis of the market value fetched by the sale of these goods by the buyers to their wholesalers.
The goods manufactured by the Petitioner Company, which are accepted by the buyers and to which the brand name label 'Bajaj ' is applied are sold by the manufacturers to the buyers at the stipulated price and to none else.
They are not at all sold in the open market by the manufacturers.
The right to sell these goods with the brand name is solely and exclusively that of the buyers having regard to the fact that they alone are the owners of the brand name 'Bajaj '.
The price fetched by the goods manufactured by the petitioner company is the price of the electrical goods 'sans ' the brand name.
And that should be the market value for the purposes of assessing the excise duty payable by the petitioner company which manufactures the excisable goods.
The enhancement in the value of the goods by reasons of the application of the brand name is because of the augmentation attributable to the value of the goodwill of the brand name which does not belong to the manufacturers and which added market value does not accrue to the petitioner company or go into its coffers.
It accrues to the buyers to whom the brand name belongs and to whom to fruits of the goodwill belong.
Excise duty is payable on the market value fetched by the goods, in the wholesale market at the factory gate manufactured by the manufacturers.
It cannot be assessed on the basis of the market value obtained by the buyers who also add to the value of the manufactured goods the value of their own property in the goodwill of the 'brand name ' The Petitioners are therefore right and the respondents wrong.
This point is covered by earlier deci sions of this Court, namely, (1) Union of India vs Cibatul Ltd., , (2) Joint Secretary to the Government of India vs Food specialities Ltd., and (3) Civil Appeal No. 1496 of 1977 disposed of by a Bench of three Judges of this Court by its judgment dated 3rd April, 1986.
The petition must therefore be al lowed.
The respondents shall levy excise duty on the basis of the price charged by the manufacturers to the buyers namely M/s. Bajaj Electricals Ltd. A word of caution is however called for.
Our decision must be understood correct ly not misunderstood conveniently.
We, there 85 fore, clarify that our pronouncement will not enable a manufacturer who manufactures and sells his goods under his own brand name or under a brand name which he has acquired a right to use.
In such a case the sale price fetched by sales effected by him under such brand name in wholesale will be the basis for computation of excise duty payable.
by him So also nothing said herein will come to the rescue of a brand name owner who himself is the manufacturer of goods or to sales effected in favour of 'related ' persons as defined by the Act.
The Central Excises & Salt Act, 1944.
The Bank guarantee, if any, furnished by the petitioners in the context of the present Writ Petition will stand discharged.
No Other point has been argued.
The petition is allowed and the Rule is made absolute to the aforesaid extent.
The Writ Petition is disposed of accordingly.
There will be no order as to costs.
Writ Petitions Nos.
1686 1691 of 1979 raise the same point in the context of other brand names.
These petitions will also stand disposed of in terms of this order with the same direction regarding computation of levy and discharge of guarantee bonds and with no order as to costs.
M.L.A. Petition al lowed.

summary/full:
The petitinner company in W.P. No. 1685 of 1979 is manufacturing electrical goods for M/s. Bajaj Electricals Limited, the buyers.
As per agreement the goods are not at all sold .in the open market by the petitioner company.
After the manufactured goods are accepted by the buyers, the petitioner company applies the label of the brand name of the buyers, namely, 'BajaJ ' on the manufactured goods.
The right to sell these goods with the aforesaid brand name is solely and exclusively that of the buyers having regard to the fact that they alone are owners of the brand name.
Counsel for the petitioner in this writ petition con tended that the market value of the goods manufactured by the petitioner should be assessed at the price at which the goods are agreed to be sold under the agreement between the manufacturer and the buyers.
On the other hand, it was argued by counsel in behalf of the respondent Union of India that the excise duty must be levied an the basis of market value fetched by the sale of these goods by the buyers to their wholesalers.
Similar question of law arose in the other writ petitions.
Allowing the writ petitions, this Cart, HELD: 1.1.
Excise duty is payable on the market value ' fetched by the goods, in the wholesale market at the factory gate manufactured by the manufacturers.
It cannot he as sessed on the hams of the market value obtained by the buyers who also add to the value of the manufactured goods the value of their own property in the goodwill of the 'Brand name '.
[84F] 1.2.
Where a manufacturer who manufacture and sells his goods under his own brand name or under a bland name which he has acquired in use, the sale price fetched by sales effected by him under 83 such bland name in wholesale, will be the basis for computa tion of excise duty payable by him.
So also nothing said herein will come to the rescue of a brand name owner who himself is the manufacturer of goods or to sales effected favour of 'related ' persons as defined by the Central Ex cises and Salt Act, 1944.
[85A B] Union of India vs Cibatul Ltd., , Joint Secretary to the Government of India vs Food Speciali ties Ltd., 'and M/s. R.O. Industries vs Union of India & Ors., Civil Appeal No. 1496 of 1977 decided on 3.4.86, relied upon.
In the instant case, the price fetched by the goods manufactured by the petitioner company is the price Of*the electrical goods sans the brand name.
And that should be the market value for the purposes of assessing the excise duty payable by the petitioner company which manufactures the excisable goods.
The enhancement in the value the goods by reason of the application of the brand name is because of the augmentation attributable to the value of the goodwill of the brand name which does not belong to the manufacturer and which added market value does not accrue to the peti tioner company or go into its coffers.
It accrues to the buyers to whom the brand name belongs and to whom the fruits of the goodwill belong.
[89D E]


judgement:
Criminal Miscellaneous Petition No. 4248 of 1986 IN Criminal Appeal No. 468 of 1986 From the Judgment and Order dated 24.7.1986 of the Bombay High Court in special Case No. 24 of 1982.
Ram Jethmalani and Miss Rani Jethmalani for the Appellant.
P.P. Rao, R.S. Desai, M.N. Shroff, A.M. Khanwilkar and Bhasme for the Respondents.
The following Order of the Court was delivered: The Special leave was granted by this court in this case in the presence of the learned counsel for the respondents and after hearing submissions.
Today we axe asked to revoke the leave already 92 granted by us.
We have considered the points urged before us in support of the application for revocation.
We do not find any ground to revoke the special leave already granted by us.
Shri Jethmalani learned counsel for the respondents reiterates his request which he had made on the date on which the Special leave was granted, namely that this case should be referred to a Constitution Bench.
Having regard to the various aspects of this case and the points which arise for consideration which.
we have recorded in the form of a note which forms part of this order, we agree with Shri Jethmalani that this case should be referred to a larger bench.
We accordingly direct that this case should be listed for hearing before a bench of 7 Judges of this Court.
Liber ty to mention for early hearing.
The papers may be placed before the Hon 'ble the Chief Justice of India for further directions regarding Constitution of the Bench.
The prayer for vacating the stay is rejected.
NOTE APPENDED A private complaint was first heard by Shri R.B. Sule who had been appointed as a Special Judge under section 6 (1) of the Criminal Law Amendment Act, 1952 by the Govern ment of Maharashtra.
The said Special Judge discharged the accused on the ground that there was no valid sanction to institute the complaint.
The correctness of the said Order of the Special Judge was challanged before this Court by the Complainant in appeal.
That appeal was allowed and the order of discharge passed by the Special Judge was set aside on February 16, 1984.
, The operative part of the judgment of this Court (R. section Nayak vs A.R. Antulay, is found at page 557 of the Report.
It reads thus: "This appeal accordingly succeeds and is allowed.
The 'order and decision of the learned Special Judge Shri R.B. Sule dated July 25, 1983 discharging the accused in Special Case No. 24 of 1982 and Special Case No. 3/83 is hereby set aside and the trial shall proceed further from the stage where the accused was discharged.
The accused was the Chief Minister of a premier State the State of Maharashtra.
By a prosecution laun 93 ched as early as on September 11, 1981, his character and integrity came under a cloud.
Nearly 21/2 years have rolled by and the case has not moved an inch further.
An expeditious trial is primarily in the interest of the accused and a mandate of article 21.
Expeditious disposal of a criminal case is in the interest of both the prosecution and the accused.
Therefore, special Case No. 24 of 1982 and Special Case No. 3/83 pending in the Court of Special Judge, Greater Bombay shri R.B. Sule are withdrawn and transferred to the High Court of Bombay with a request to the learned Chief Justice to assign these two cases to a sitting Judge of the High Court.
On being so assigned, the learned Judge may proceed to expeditiously dispose of the cases preferably by holding the trial from day to day.
" In this case the following points arise for consideration: 1.
If an order of transfer of a criminal case which purports to violate Article 14 and Article 21 is passed against an accused person by this Court without any pleading or hearing or even consulting his wishes in that regard, can he not question it by an independent petition since a review is not an adequate remedy because the petitioner in a review petition (which by its very nature is of a restricted character) has no right of personal hearing at the stage of admission of the review petition? 2.
Under the Criminal Law Amendment Act, 1952 an offence punishable under section 5 of the Prevention of Corruption Act or under sections 161,162, 163, 164, 165 and 165A of the Indian Penal Code can be tried only by a Special Judge appointed under section 6 of that Act by the State Government.
An order of transfer by this Court cannot be a substitute for an order of appointment to be made by the State Government under section 6 of that Act.
In Gurucharandas Chadha vs State of Rajasthan, ; it is laid down that the trial by a special Judge is the sine qua non of a trial under that Act and a case can be transferred by this Court from one Special Judge to another Special Judge only.
That means that all other courts including the High Court are excluded.
In Bhajahari Mondal vs State of West Bengal; , it is held that the trial 94 by a Judge who is not authorised to try a case amounts to an incurable illegality and the trial would be a nullity.
In view of these decisions can the trial in this case proceed before a High Court Judge who is not a Special Judge? It may be noted that section 7(1) of the Criminal Law Amendment Act, 1952 which opens with a nonobstante clause prevails upon every provision in the Criminal Procedure Code including sections 406 and 407 which deal with the powers of transfer of criminal cases exercisable by the Supreme Court and the High Court respectively and upon every other law in force.
Does not the order of transfer in this case deny the right of the accused to be tried according to the procedure established by law and is not Article 21 violated thereby? 3.
Has the accused in this case a remedy by way of appeal as of right under the Crimi nal Procedure Code? There appears to be a reasonable doubt in this case because section 374(1) of the Code of Criminal Procedure, 1973 provides for an appeal to this Court against a conviction by a High Court under its extraor dinary original criminal jurisdiction.
Clause 24 of the Letters Patent of the Bombay High Court which confers extraordinary original criminal jurisdiction on the High Court refers only to cases brought before the High Court by the Advocate General, any Magistrate or any other officer specially empowered by the Gov ernment in that behalf.
But this case is brought by a private person.
If it fails outside clause 24 of the Letters Patent, the accused will have perhaps a remedy of appeal by way of special leave of this Court under Article 136 of the Constitution.
Denial of even one appeal as of right may amount to violation of Article 14 arid Article 21.
Does not this question require examination? 4.
The Criminal law Amendment Act, 1952 as its preamble says is passed to provide for speedier trial? Does not further speeding up of the case by transferring the case of the High Court for speedy disposal violate the principle laid down by seven learned Judges of this Court in Anwar Ali Sarkar 's case ; and result in violation of Article 14 of the Constitution? The following observa tions of Vivian Bose, J. in Anwar Ali Sarkar 's 95 case at pages 366 367 of the Report are rele vant: "Tested in the light of these considerations, I am of opinion that the whole of the West Bengal Special Courts Act of 1950 offends the provisions of article 14 and is therefore bad.
When the froth and the foam of discussion is cleared away and learned dialectics placed on one side, we reach at last the human element which to my mind is the most important of all.
We find men accused of heinous crimes called upon to answer for their lives and liberties.
We find them picked out from their fellows, and however much the new procedure may give them a few crumbs of advantage, in the bulk they are deprived of substantial and valuable privileges of defence which others, similarly charged, are able to claim.
It matters not to me, nor indeed to them and their families and their friends, whether this be done in good faith, whether it be done for the convenience of government.
whether the process can be scientifically.
classified and labelled, or whether it is an experiment in speedier trials made for the good of society at large.
It matters not how lofty and laudable the motives are.
The question with which I charge myself is, can fair minded, reasonable, unbiassed and resolute men, who are not swayed by emotion or prejudice, regard this with equanimity and call it reasonable, just and fair, regard it as that equal treatment and protection in the defence of liberties which is expected of a sovereign democratic republic in the condi tions which obtain in India today? I have but one answer to that.
On that short and simple ground I would decide this case and hold the Act bad." (underlining by us) Do not the above observations apply to judicial orders also? If under the American Constitution a prisoner can challange successfully a conviction which has become final on the ground of contraven tion of the Vlth Amendment even after he is sent to jail, by an independent petition, (vide Gideon 's case ; cannot an Indian citizen who had not been heard by this Court on the question of transfer complain by an independent petition before this Court before the commencement of 96 the trial that his fundamental rights under Article 14 and Article 21 are being violated even though he may have a remedy of a re stricted character like a review petition and ask for a writ of prohibition against the trial Judge '? 6.
Does the degree of heinousness of the crime with which an accused is charged or his status or the influence that he commands in society have any bearing on the applicability or the construction of Article 14 or Article 21? 7.
If a decision of this Court is given per incuriam, that is, without taking note of the appropriate legal provisions can that decision be treated as a binding precedent? Is it not a circumstance in jurisprudence which entitles a Court to disregard and earlier judicial precedent? (See Salmond 's Jurisprudence (Eleventh Edn.
P. 203).
We find that even when the accused in this case brought to the notice of this Court (before a Bench presided over by the Judge who delivered the judgment), the accused was not given relief.
He was asked to file a review petition which is restricted in character and where he would have no right of oral heating at the stage of admission or to file any other application which he may be entitled in law to file.
In that situation.
what is wrong in the accused who apprehends that a trial is going on against him contrary to the law and the Constitution without giving him a reasonable opportunity of being heard personally on that question as every other litigant in this Court is given except in review petitions, raising the question before the Judge who is trying him or in an appeal filed before this Court against the order of the Trial Judge? 9.
Could the High Court not have re quested the State Government to appoint a Judge of the High Court as a Special Judge in order to implement the direction of this Court? If this was possible, both the order of transfer passed by this Court and the Criminal Law Amendment Act, 1952 could have been satis fied by the issue of the necessary notifica tion by the Sate Government.
If this 97 was possible, the accused can always raise the objection to the trial of the case before a Judge of the High Court until the notification is issued by the Government appointing him as a Special Judge, without in any way question ing the binding nature of the order of this Court, because while the order of transfer takes care of the territorial jurisdiction of the Trial Judge, a notification issued by the Government would confer the necessary compe tence on the Judge concerned.
It may be noted that in Chadha 's (supra) this Court has made this distinction between the territorial jurisdiction and the competence of the trial court.
There is another point to be considered in this context.
Section 6(2) of the Criminal Law Amendment Act, 1952 says that a person shall not be qualified for appointment as a Special Judge under that Act unless he is or has been a Sessions Judge or an Additional Sessions Judge, or an Assistant Sessions Judge under the Code of Criminal Procedure.
Even if the State Government wishes to appoint a High Court judge as a Special Judge it can only appoint such Judge who has filled any of these offices under the Criminal Procedure Code earlier.
Justice P.S. Shah who is now trying the case was only a member of the Bar before he became a High Court Judge.
In recent times Article 21 is being inter preted liberally and is being extended to issues which were not considered to be within the scope of Article 21.
Does that Article not, therfore, apply with greater force in the case of those persons, i.e., persons accused of criminal offences, for whom that Article was primarily intended? 11.
Question of Judicial discipline: Recently the question of constitutional validity of certain provisions of the Punjab Pre emption Act, 1913 as in force in Haryana came up for consideration before a Division Bench of two Judges (E.S. Venkataramiah and R.B. Misra, JJ)It was noticed by the Division Bench that the said provisions had been upheld by a Constitution Bench in Ram Sarup vs Munshi, ; The Division Bench felt that the decision in Ram Sarup 's case 98 (supra) was erroneous and needed reconsidera tion.
It accordingly admitted the case, issued stay orders and referred the matter to a larger Bench.
Thereupon another Constitution Bench of five Judges accepted the reference, overruled the view of the another Constitution Bench and declared the impunged provisions as unconstitutional.
(See Atam Prakash vs State of Haryana, ; In almost all the cases references to larger Benches are made by smaller Benches where the smaller Benches do not agree with the view of a larger Bench expressed earlier.
It was a smaller Bench which doubted the view in Shankari Prasad 's case ; and in Sajjan Singh 's case [1965] I S.C.R. 938 that referred the case to a larger Bench which decided Golak Nath 's case ; It was again a smaller Bench which did not agree with the decision in Golaknath 's case that referred the case to a larger Bench which decided the Keshvananda Bharati 's case [1973] Supp.
S.C.R. 1 which overruled Golaknath 's case.
In all such cases the smaller Banches had entertained the petitions and passed appropriate interim orders.

dataset_name: IN-Abs

summary/full:
HELD: Having regard to the various aspects of the case and the important points of law which arise for considera tion the petition to revoke the special leave cannot be granted.
Further the special leave, was granted by the Court in the presence of the counsel for the respondents and after hearing his submissions.
The petition has not only culminat ed in criminal appeal but the very same counsel has made a request that the case should be referred to a Constitution Bench ' [92B, 91H]


judgement:
ivil Appeal Nos.
3341 42/83 & S.L.P. No. 2693/84 .
From the Judgment & Order dated 25 1 83 of the High Court of Punjab & Haryana in Regular Second Appeal No. 254/83 Hardev Singh and R.S. Sodhi for the Appellants.
C.S. Vaidyanathan for the Appellants in C.A.No. 3342/83.
Respondent in person.
The Judgment of the Court was delivered by B.C. RAY, J.
These two appeals by special leave one by the 75 Punjab State Electricity Board, Patiala and the other by Gurdial Singh & Ors.
who were defendant respondent Nos.
3,4,6 and 7 in Civil Suit No. 293T/16 1 181/17 7 80 passed in R.S.A. No. 254/38 whereby the judgments and the decrees of the courts below were affirmed decreeing the plaintiff respondent 's suit declaring that the plaintiffrespondent be deemed to have been promoted from the date when his juniors as mentioned in the suit were promoted to the posts of Line Superintendents.
The case of the plaintiff in short is that the plaintiff respondent Ravinder Kumar Sharma joined the service under the respondent No. 1, Punjab State Electricity Board as a Line Man on 25th December, 1969 and he worked as apprentice Line Man from 29.12.1969 to 28.12.1970 on a fixed salary of Rs. 140 per month.
Thereafter he was allowed regular scale of pay of Rs. 110 330 since the date of his joining as a Line Man.
The terms and conditions of the service of the LineMen as well as of the Line Superintendent are governed by the rules framed by the Punjab Government in exercise of its powers under article 309 of the Constitution of India which were termed as P.W.D. (Electricity Branch) Provisional Class III (Subordinate posts) Rules 1952.
Subsequently the State Electricity Board came into being and the Electricity De partment came under the administration of the State Elec tricity Board.
The Plaintiff has stated in the plaint that as a Line Man he had been performing his duties efficiently and hon estly and there was never any complaint against his work.
His work and conduct had always been appreciated by his superiors from time to time.
He possesses the following qualifications: 1.
B.A. 2.
I.T.I. (in the trade of Electrician 2 year 's duration).
National Apprentice Certificate in the trade of Line Man (3 year 's duration).
All the Line Men under the defendant No. 1, that is, Punjab State Electricity Board are either diploma holders or I.T.I. trained or non diploma holders and they form and constitute one common cadre known as Line Man and in the same scale of Rs. 110 330.
The seniority list of all these Line Men is common and joint.
It has been further alleged that defendant No. 1 had been promoting officials from Line 76 Men to the Line Superintendent on a pick and choose basis in consideration of the qualifications by fixing a quota be tween the diploma holders and non diploma holders and this has resulted in arbitrary discrimination between the diploma holders and non diploma holders Line Men thereby adversely affecting the promotional prospect of the non diploma hold ers Line Men.
It has been further stated that this policy of the defendant No. 1 was set aside by the Punjab and Haryana High Court in L.P. No. 618, 619 of 1975 fixing the quota between diploma holders and non diploma holders Line Super intendents by orders dated 12.1.1965 and 27.6.1974.
Though the minimum qualification for promotion of Line Man to Line Superintendent is however matriculation.
The plaintiff also stated that by order dated 12.7.
1977 the respondent No. 1 promoted Gurdial Singh whose name appeared at section No. 1451 in the common seniority list and also the defendant Jaswant Singh whose name appeared at section No. 1546 in the said list as well as Ramesh Kumar standing at section No. 2309 in the said seniority list to the post of Line Superintendent even though the plaintiffs position in the seniority list was at section No. 995 and he was senior to these officials.
Thus the plaintiff was passed over while his juniors were promoted.
This policy of pick and choose, it has been stated, in promoting the officials is wholly illegal and discriminato ry.
It has been further pleaded that by office order No. 899 dated 17.8.1977 the defendant No. 2, that is, the Chief Engineer of the Electricity Board further promoted Sudesh Kumar and Virender Kumar whose name stand at section No. 1877 and 2279 in the joint seniority list as Line Superintendent from the Line Man.
The petitioner, therefore, pleaded that the action of defendants Nos. 1 and 2 in fixing the quota be tween diploma holders and non diploma holders Line Men for the purpose of promotion to the post of Line Superintendent and promoting the defendants 3 to 7 to the posts of Line Superintendent from Line Man is wholly illegal, unconstitu tional and arbitrary.
The plaintiff, therefore, prayed for a decree declaring that the orders dated 12.7.1977.
and 17.8.1977 promoting the defendants 3 to 7 are illegal, discriminatory and null and void as it arbitrarily affects the rights of the plaintiff who is senior to them in not being promoted to the cadre of Line Superintendent.
The plaintiff also prayed for a direction that he be promoted to the post of Line Superintendent from the date defendant Nos. 3 to 7 were promoted to the said post.
The defendant Nos. 1 and 2 contested the claim of the plaintiff by filing written statement stating that the terms and conditions of service of Line Men and Line Superintend ent are governed by the rules framed by the Punjab State Government under article 309 of the 77 Constitution and are termed as P.W.D. (Electricity Branch) Provisional Service Class III (Subordinate posts) Rule 1952.
It has been further stated that the State Electricity Board by office order dated 14.5.1970 prescribed a quota of 5% for diploma holders Line Men for promotion to the post of Line Superintendent This quota of diploma holders Line Men was increased to 20% by the Board by order dated 2.7.1973.
On 9.5.1974 the quota of diploma holders Line Men for promotion to the Line Superintendent was further increased to 33% whereas the quota for promotion of non diploma holders Line Men to the post of Line Superintendent was fixed at 33%.
It has been stated that according to this quota the defendant Nos. 3 to 7 have been promoted and the fixation of quota on the basis of educational qualification cannot be questioned as arbitrary or discriminatory.
After heating both the parties the Subordinate Judge, 1st Class, Patiala, held that the plaintiff was entitled to promotion to the post of Line Superintendent and the orders dated 12.7.1977 and 17.7.1977 whereby the defendant Nos. 3 to 7 were promoted even though they were junior to the plaintiff are illegal and in violation of the rights of the plaintiff.
The suit was decreed and the plaintiff was de clared to have been promoted from the date when his juniors mentioned in the plaint were promoted to the post of Line Superintendent.
Against this judgment and decree the Punjab State Elec tricity Board, Patiala filed an appeal being C.A. No. 4368 of 1982.
The Additional District, Judge, Patiala after heating the parties dismissed the appeal with costs holding that there was no reasonable nexus by fixing quota for promoting diploma holders Line Men to the post of Line Superintendent even though the non diploma holder as well as the diploma holders formed the joint cadre of Line Men for promotion to the post of Line Superintendent.
The judgment of the trial court was affirmed and it was also held that the appeal was not competent inasmuch as there was no reso lution of the board authorising the filing of the appeal.
The cross objection filed by the plaintiff respondent was allowed.
Against this judgment and decree the defendant Nos.
I and 2 preferred an appeal being R.S.A. 254 of 1983.
The said appeal was dismissed by the High Court of Punjab and Haryana and the judgment and decrees of the court below were af firmed.
It is against this judgment and decree the aforesaid two appeals on special leave petition have been filed in this Court.
78 The only issue raised in this appeal is whether the defend ant No. 1, that is, the Punjab State Electricity Board is competent to discriminate between diploma holders and non diploma holders Line Men forming the common cadre of Line Men having a common seniority list in promoting these Line Men on the basis of quota fixed by the order of the State Electricity Board even though the requisite qualification for promotion for Line Man to the post of Line Superintend ent is either the holding of diploma or certificate for electrical engineering from a recognised institute or the non diploma holders having passed one and half year 's course in the trade of Electrician/Line Man/Wire Man from recog nised Industrial Training Institute and are matriculates and have worked for four years as Line Man continuously and immediately before promotion, as has been provided by the office order No. 97/ENG/BET/G 33 dated 22.10.1968 the rele vant excerpt of which is quoted herein below: "Far Direct Recruitment: a) Possess 3 years, certificate or diploma course in Electrical Engineering from any recognised Institute, or a certificate of having passed the N. 'C.C. Test conducted by the State Board of Technical Education/All India Council for Technical Education.
b) Have passed action of the Institution of Engineering (India) Exam.
with Elementary Electrical Engineering as the optional paper.
For Pormotion c) (i) Have passed 11/2 years course in the Electrical Trades of Electrician/Line Man/Wire Man from recognised Industrial Training Institutes and are matric ulates and have worked for 4 years as a Line Man continuously and immediately before promo tion.
(ii) Have passed 11/2 years course in the Electrical Trades of Electrician/Line Man/Wire Man from recognised Industrial Training Institutes and are non matriculates but are capable of preparing estimates, writing up measurement books accu rately, keeping store accounts etc.
and have worked for 4 years as a Line Man continuously and immediately before promotion.
79 (iii) Persons holding diploma in Electrical Engineering of 3 to 4 years duration recruited as Line Man against the reservation of 60% fixed for recruitment of persons holding certificate of 11/2 years course in the Elec trical Trades of Electrician/Line Man/Wire Man from recognised Industrial Training Insti tutes, have worked as Lint Man for 3 years continuously and immediately before promotion.
On promotion as Line Superintendent they will be given weightage of 2 years ' service as compared to non diploma holders, at the time of fixation of their seniority and pay in accordance with the instructions contained in Board 's Memo No. 88774/84/BET/(33)L dated 29.12.1967.
D (i) Matriculates Line Man having a total continuous service of 9 years as at A.L.M. and Line Man out of which they should have worked as Line Man for 4 years continuously and immediately before promotion '.
(ii) Non matriculates Line Man having a total continuous service of 11 years as A.L.M. and Line Man out of which they should have worked as Line Man for four years, continuously and immediately before promotion, provided they are capable of preparing estimates, writing up measurement books accurately keeping store accounts and in addition are conversant with Consumer Accounts or possess a special experi ence for transmission line work.
The State Electricity Board by its order dated 14.5.1970 introduced the following quota for promotion to the cadre of Line Superintendents: 1.
Direct recruitment from the open market 62% 2.
Diploma holders Line Men 5% 3.
Line Men non diploma holders 33%.
This quota of promotion for diploma holders Line Man to the pest of Line Superintendent was further increased by office order No. 244 dated 2.7.1975 by fixing the quota fox promo tion of diploma holders Line Men already in Service of the Board from 5% to 20%.
Again by office order No. 78 dated 9.6.1974 the State Electricity Board further increased the quota of promotion of diploma holders Line Man already in the service of the Board from 20% to 33%.
80 There is no dispute, rather it is not controverted that the position of the plaintiff respondent in the joint sen iority list of Line Men in the scale of Rs. 110 330 of the Punjab State Electricity Board from 1.6.1967 to 31.8.1974 which has been filed as additional document by the Punjab State Electricity Board in C.A. No. 3341 of 1983 that the plaintiff respondent 's name was mentioned at section No. 995 whereas names of defendant Nos. 3 to 7 appear in the said list in section Nos. 1451, 1546, 2309, 1877 and 2279 respective ly.
Therefore all the defendant Nos. 3 to 7 are undoubtedly junior to the plaintiff respondent as LineMen in the joint seniority List of Line Men comprising of both diploma hold ers and non diploma holders Line Men in the same cadre.
It iS also clear and evident from the office Order No. 97 dated 22.10.1968 that the qualification for promotion to the post of Line Superintendent from Line Men is either holding cer tificate or diploma in electrical engineering from any recognised institute or having passed 1 1/2 years Course in the electrical trade of Electrician/Line Man/WireMan from reCognised Industrial Training Institute and are matricu lates and have worked as Line Man for four years continuous ly and immediately before the promotion.
The petitioner who is an Arts Graduate and have I.T.I. Certificate (in the trade of electrician 2 years ' duration) and also have Na tional Apprentice Certificate in the trade of Line Man 3 years ' duration is eligible for promotion to the post of Line Superintendent as he has fulfilled all the requisite qualifications.
There is no gain saying that all the Line Men either diploma holders or non diploma holders are per forming the same kind of work and duties and they belong to the same cadre having a common/joint seniority list for promotion to the post of Line Superintendent.
The orders dated 12.7.1977 being order No. 73 promoting defendant Nos. 3, 4 and 5 as well as office order No. 898 dated 17.8.1977 promoting defendant Nos. 6 and 7 on the basis of quota from diploma holders as fixed by the order of the State Electric ity Board dated 9.5.1974 is wholly arbitrary, illegal, discriminatory and violative of the equality clause Con tained in articles 14 and 16 of the Constitution of India inasmuch as it purports to promote defendant Nos. 3 to 7 who are admittedly junior to the respondent No. 1 in service as Line Man in the State Electricity Board.
It has been rightly held by following the decision in Shujat Ali 's case ; at 480 that the promotion of defendant Nos. 3 to 7 who are admittedly junior to the plaintiffrespondent in the service as Line Man to the post of Line Superintendent are illegal, arbitrary and discriminatory and so bad.
It is pertinent to refer to the observations of this Court in the said case which read as follows: 81 "But where graduates and non graduates are both regarded as fit and, therefore, eligible for promotion, it is difficult to see how, consistently with the claim for equal opportu nity any differentiation can be made between them by laying down a quota of promotion for each and giving preferential treatment to graduates over non graduates in the matter of fixation of such quota.
The result of fixation of quota of promotion for each of the two categories of Supervisors would be that when a vacancy arises in the post of Assistant Engi neer, which, according to the quota is re served for graduate Supervisors, a non gradu ate Supervisor cannot be promoted to that vacancy, even if he is senior to all other graduate Supervisors and more suitable than they.
His opportunity for promotion would be limited only to vacancies available for non graduate Supervisors.
That would clearly amount to denial of equal opportunity to him." This observation apply with full force to the present case, and it has been rightly held by the High Court of Punjab and Haryana that the promotion of defendant Nos. 3 to 7 who are junior to the plaintiffrespondent from Line Man to the post of Line Superintendent is wholly bad and discrimi natory and directed that the petitioner be deemed to have been promoted to the post of Line Superintendent from the date the said defendants 3 to 7 had been promoted from Line Man to Line Superintendent In our considered opinion there is no infirmity in the judgment of the High Court affirming the judgment and decree of the courts below.
and we agree with the reasonings and conclusions arrived at by the courts below.
The two appeals on special leave are, therefore, dismissed with costs, quantified at Rs.5000 to be paid by the appellant of C.A. No. 3341 of 1983 to the re spondent No. 1.
The Punjab State Electricity Board, Patiala also filed special leave petition (Civil) No. 2693 of 1984 against the judgment and order dated 14.2.1984 passed in Civil Revision No. 407 of 1984 by the High Court of Punjab and Haryana dismissing the Revision Petition.
This Revision Petition was filed against the order rejecting the appellant 's applica tion for correction of the decree.
As we have already dis missed the appeals there is no merit in this special leave petition and the same is accordingly dismissed A. P .J.
Appeals & Petition dismissed.

summary/full:
Plaintiff respondent Ravinder Kumar Sharma joined serv ice as a Line Man under the respondent Electricity Board.
The terms and conditions of the service of the Line Man as well as of the Line Superintendent were governed by the P.W.D. (Electricity Branch) Provisional Class III (Subordi nate posts) Rules 1952.
The Line Man are either diploma holders or I.T.I. trained or non diploma holders and they form and constitute one common cadre known as Line Man and were in the same scale of pay.
The seniority list of all the Line Man is common and joint.
By order dated 12.7.1977, the respondent Board promoted Gutdial Singh, Jaswant Singh and Ramesh Kumar shown in the common seniority list at section Nos. 1451, 1546 and 2309 respectively, to the pest of Line Super intendent even though the plaintiff respondent 's position in the seniority list was at section No. 995 and he was senior to the said officials.
By order dated 17.8.1977 the Chief Engineer of the respondent Electricity Board further promot ed Sudesh Kumar and Virender Kumar whose name stand at section No. 1877 and 2279 in the joint seniority list.
The Plain tiff respondent filed a suit alleging that this policy of promotion from Line Man to Line Superintendent on a pick and choose basis by fixing a quota between the diploma holders and non diploma holders is wholly illegal, unconstitutional and arbitrary as it adversely affected the promotional prospect of the non diploma holders Line Men and prayed for a decree declaring that the orders dated 12.7.1977 and 73 17.8.1977 promoting the defendants 3 to 7 are illegal, discriminatory and null and void as it arbitrarily affects the rights of the plaintiff who is senior to them and that he be promoted to the post of Line Superintendent from the date defendant Nos. 3 to 7 were promoted.
The defendant Nos. :1 and 2 contested the claim of the plaintiff contending that the terms and conditions of serv ice of Line Man and the Line Superintendent are governed by the P.W.D. (Electricity Branch) Provisional Service Class III (Subordinate Posts) Rules 1952 framed by the State Government under article 309 of the Constitution, that the Electricity Board by various orders prescribed quota for diploma holders Line Men for promotion to the post of Line Superintendent, that according to this quota the defendant Nos. 3 to 7 have been promoted and that the fixation of the quota on the basis of educational qualification cannot be questioned as arbitrary or discriminatory The Subordinate Judge First Class decreed the suit, holding that the plaintiff was entitled to promotion to the post of Line Superintendent and the orders dt.12.7.1977 and 17.8.1977 whereby the defendant Nos. 3 to 7 were promoted even though they were junior to the plaintiff are illegal and in violation of the rights of the plaintiff and, there fore, the plaintiff was declared to have been promoted from the date when his said juniors were promoted.
The appeal filed by the State Electricity Board was dismissed by the Additional District Judge holding that there was no reasonable nexus by fixing quota for promoting diploma holders Line Men to the post of Line Superintendent even though the non diploma holders as well as the diploma holders formed the joint cadre of Line Man for promotion to the post of Line Superintendent The judgments and decrees of the Courts below were affirmed by the High Court.
Dismissing the Appeals and the Special Leave Petition, HELD: 1.
There is no dispute, rather it is not contro verted that in the joint seniority list of Line Men the plaintiff respondent 's name was mentioned at section No. 995 whereas names of defendant Nos. 3 to 7 appear in the said list at section Nos. 1451, 1546, 2309, 1877 and 2279 respective ly Therefore, all the defendant Nos. 3 to 7 are junior to the plaintiff respondent It is also clear and evident from the Office Order No. 97 dated 22.10.68 that the qualifica tion for promotion to the post of Line Superintendent from Line Man is either holding certificate or diploma in Elec trical Engineering from any recognised institute or 74 having passed 11/2 years course in the electrical trade of Electrician/ Line Man/Wire Man from recognised Industrial Training Institute and are matriculates and have worked as Line Man for four years continuously and immediately before the promotion.
[80A C] 2.
The plaintiff respondent who is an Arts Graduate and have I.T.I. Certificate (in the trade of electrician two years ' duration) and also have National Apprentice Certifi cate in the trade of Line Man 3 years ' duration is eligible for promotion to the post of Line Superintendent as he has fulfilled all the requisite qualifications.
All the line men either diploma holders or non diploma holders are performing the same kind of work and duties and they belong to the same cadre having common/joint seniority list for promotion to the post of Line Superintendent.
The Orders dated 12.7.1977 being Order No. 73 promoting defendant Nos. 3, 4 and 5 as well as Office Order No. 898 dated 37.8.77 promoting defend ant Nos. 6 and 7 on the basis of quota from diploma holders as fixed by the order of the State Electricity Board dated 9.5.74 is wholly arbitrary, illegal, discriminatory and violative of the equality clause contained in articles 14 and 16 of the Constitution in as much as it purports to promote defendant Nos. 3 to 7 who are admittedly junior to the plaintiff respondent in service as Line Man in the State Electricity Board.
[80D G] Shujat Ali 's case ; at 480 followed.
There is no infirmity in the judgment of the High Court affirming the judgment and decree of the Courts below.


judgement:
ivil Appeal No. 4083 of 1986 110 From the judgment and order dated 13.4.1984 of the Andhra Pradesh High Court in C.R.P. No. 3072 of 1983.
Dr. Y.S. Chitale, G.N. Narayan and N. Nittar for the Appel lant.
T.S. Krishnamurthy Iyer, T.V.S.N. Chaff and Ms. V. Grover for the Respondent; The Order of the Court was delivered by PATHAK, J.
This appeal is directed against the judgment and order of the High Court of Andhra Pradesh disposing of a revision petition filed by the Appellant in execution pro ceedings.
The Appellant is a contractor, who entered into two agreements with the Government of the State of Andhra Pra desh for providing B.T. Macadam wearing coat and seal coat along two stretches of the Hyderabad Vijayawada National Highway.
While the work was in progress, the contractor made certain claims in respect of the loss suffered on account of delay, escalation of rates and other heads.
The claims were referred to arbitration.
On September 4, 1979 the Arbitrator held the contractor entitled to a sum of Rs.99,00,000 under five heads of claim.
The contractor applied to the Civil Court for making the award a rule of the Court while the State Government prayed for setting aside the entire award.
The Civil Court set aside the award and refused to pass a decree in terms of the award.
The contractor appealed to the High Court, and on April 19, 1982 the High Court allowed the appeal to the extent of one of the claims only, the claim being for loss of profit in the sum of Rs. 16,00,000 togeth er with interest.
The appeal was dismissed in respect of the other heads of claim.
For the realisation of the amount due under the decree the contractor filed Execution Petition No. 48 of 1982 before the V Additional Judge, City Civil Court, Hyderabad claiming recovery of Rs. 16,00,000 towards the decretal amount, Rs.7,80,000 towards interest in terms of the award up to the date of the execution petition and Rs.8,691 to wards costs of the Execution Petition.
The State Government filed objections, contending inter alia that a sum of Rs.22,91,332 was recoverable by it from the contractor and claimed adjustment against the amount due to the contractor under the said decree.
It urged that after adjusting the amount due to the State Government the balance payable to the contractor would stand reduced to Rs.76,667.
This sum 111 together with the other deposits of the contractor with the Government and refundable to him, viz. Rs.3,92,236 was deposited in the Executing Court.
The contractor withdrew the amount without prejudice to his rights to contest the adjustment.
The Executing Court held that the State Govern ment was entitled to set off the amounts claimed by it, and accordingly adjourned the Execution Petition for further proceedings.
The contractor filed a revision petition before the High Court and contended that the State Government was not enti tled to claim adjustment in execution proceedings.
It was pointed out that the sum of Rs.22,91,332 of which adjustment was sought by the State Government against the amount for which the contractor had taken out execution, consisted of (a) an amount of Rs.10,21,800 claimed by the State Govern ment as due to it upon the preparation of the final bill in respect of the contracts covered by the award and (b) an amount of Rs. 12,69,532 claimed by the State Government under a separate contract on the ground that the contractor had committed a breach of that contract.
The contractor disputed both claims.
He contended that the final bill in respect of the earlier contract had been prepared in his absence and that he challenged the inclusion of several items in that bill.
In regard to the latter amount he urged that he was not guilty of any breach of contract.
The High Court has found that so far as the first claim to adjustment was concerned the State Government was justi fied in making it because the arbitration was effected while the work was still in progress and the contract was in the process of execution by the contractor, and having regard to clause 68 of the agreement final payment had to be made to the contractor after taking into account the amount which had been received by him earlier.
The second claim to ad justment was made by the State Government under another contract, and the High Court justified that claim by refer ence to clause 71 of that contract, which permitted the Government to retain or deduct money due under the contract from an amount due to the contractor under any other con tract.
However, it held that the adjustments claimed by the State Government could not be made against the decretal amount but must await determination upon due arbitration.
Learned counsel for the Appellant contends before us that the State Government is not entitled to a set off at all because, he says, a set off can be claimed only under Order 21 Rule 18 of the Code of Civil Procedure and that provision does not apply in terms to the present 112 case.
Learned counsel for the respondent urges, on the other hand, that the power of the Court extends to granting an equitable set off in appropriate cases, and the High Court was therefore justified in making the order which it did.
We have no doubt that in certain cases the Court has the power to allow a set off even in cases which do not strictly fall within the terms of Order 21 Rule 18 of the Code.
A Full Bench of the Andhra Pradesh High Court has discussed the matter in Bhoganadham Seshaiah vs Budhi Veerabhadrayya (died) and Others, AIR [1972] Andhra Pradesh 134 and has examined at some length the circumstances in which such set off may be granted.
The facts before us, however, call for a somewhat different consideration.
So far as the first claim to adjustment is concerned, the matter is covered by clause 68 of the contract.
What was awarded to the contractor under the decree was an amount relating to a part only of the work entrusted to him.
The contract was still in the process of execution.
Any amount claimed by him for such work was subject to a final settlement of account on the preparation of the final bill.
The right to payment depended on the terms of the contract.
Any payment made while the contract was still being worked out was in the nature of a provision al payment.
It was always subject to adjustment against amounts found due against the contractor on preparation of the final bill.
Such adjustment was implied in the very terms of the contract.
Therefore, in regard to the adjust ment claimed by the State Government on the first count the High Court is right, in our opinion, in holding that the amount claimed by the State Government, as determined on arbitration, was entitled to a set off against the decretal amount claimed by the contractor, and that payment of the decretal amount was to be subject to such adjustment.
In regard to the claim to adjustment on the second count the position is more controversial.
The claim is rounded in the doctrine of equitable set off, but we do not find evi dence before us to bring the case within the operation of the doctrine.
It is not a case where cross demands rise out of the same transaction or the demands are so connected in their nature and circumstances that they can be looked upon as part of one transaction.
Nor can assistance be derived from clause 71.
The benefit of that provision can be claimed only if the amount sought to be retained is an ascertained sum, an amount which can be readily adjusted against the amount payable under the other contract.
Here, the amount sought to be adjusted has yet to be determined as a liabili ty against the contractor.
It has been disputed by the appellant.
Accordingly, clause 71 cannot be invoked.
In the result, the decision 113 of me High Court in respect of the adjustment of Rs. 12,69,532 cannot be sustained.
In the circumstances, the appeal is allowed in part, the judgment and order of the High Court is modified in so far that while the adjustment claimed by the State Government on the basis of the final bill relating to the contract covered by the award is maintained, the direction in respect of the adjustment of the claim made under the other contract is set aside.
The parties will bear their own costs.
P.S.S. Appeal al lowed.

summary/full:
The appellant contractor entered into two agreements with the respondent State for carrying out certain road repairing works.
Clause 68 of the agreement provided for preparation of the final bill of the contractor after taking into account amounts received by him earlier, while clause 71 permitted the State to retain or deduct money due under the contract from an amount due to the contractor under any other contract.
While the work was in progress the contrac tor made certain claims in respect of loss suffered on account of delay, escalation of rates and other heads.
The arbitrator held the contractor entitled to Rs.99 lacs.
The civil court refused to pass a decree in terms of the award.
The High Court on appeal allowed the claim to the extent of Rs.16 lacs together with interest.
The contractor claimed recovery of decretal amount with interest in terms of the award and cost of execution proceedings.
The respondent State contested the claim contending that a sum of Rs.22 lacs was recoverable from the appellant and claimed adjust ment against the amount due under the decree.
The Executing Court held the respondent State entitled to set off.
In the revision petition before the High Court it was contended for the appellant that the respondent State was not entitled to set off in execution proceedings, and that the sum of which adjustment was sought consisted of (a) an amount claimed by respondent State as due to it upon prepa ration of the final bill in respect of the contracts covered by the award, and (b) an amount claimed by the respondent State under a separate contract on the ground that the appellant had committed a breach of that contract.
The High Court having regard to cl.
68 of the agreement found the respondent State entitled to set off so far as the first claim was concerned.
It justified the second claim also by reference to cl. 71 of the contract but held that adjustment claimed could not be made against the decretal amount but must await determination upon the arbitration.
109 In this appeal by special leave it was contended that Order 21, Rule 18 of the Code of Civil Procedure, under which a set off can be claimed, does not apply in terms to the present case.
Allowing the appeal in part, the Court, HELD: 1.
The Court has the power to allow a set off in certain circumstances even in cases which do not strictly fail within the terms of Order 21, Rule 18 of the Code of Civil Procedure.
[112B] Bhoganadham Seshaiah vs Budhi Veerabhadrayya (died) & Ors., AIR 1972 Andhra Pradesh 134, approved.
The respondent State 's claim to adjustment of the amount due to it upon the preparation of the final bill is covered by cl. 68 of the contract.
What was awarded to the contractor under the decree was an amount relating to a part only of the work entrusted to him.
The contract was still in the process of execution.
Any amount claimed by him for such work was subject to a final settlement of account on the preparation of the final bill.
The fight to payment depended on the terms of the contract.
Any payment made while the contract was still being worked out was in the nature of a provisional payment.
It was always subject to adjustment against amounts found due on preparation of the final bill.
Such adjustment was implied in the very terms of the con tract.
The High Court was, therefore, right in holding that the amount claimed by the State Government on this count was entitled to be set off against the decretal amount claimed by the contractor.
[112C E] 3.1 The claim to adjustment of the amount claimed on breach of another contract is rounded in the doctrine of equitable set off but there is no evidence on record to bring the case within the operation of the doctrine.
It is not a case where cross demands rise out of the same transac tion, or the demands are so connected in their nature and circumstances that they can he looked upon as part of one transaction.
[112F G] 3.2 The benefit of cl. 71 of the contract can be claimed only if the amount sought to.
he retained is an ascertained sum, an amount which can be readily adjusted against the amount payable under the other contract.
In the instant case, the amount sought to be adjusted had yet to be deter mined as a liability against the contractor.
The decision of the High Court cannot, therefore, he sustained.
[112GH, 113A]


judgement:
: Criminal Appeal Nos.
563 64 of 1986 From the Judgment and Order dated 30.9.85 in the High Court of Delhi at New Delhi in Crl.
M. (M) Nos.
1105 & 1106 of 1985.
M.R. Sharma and Dalveer Bhandari for the Appellant.
The Judgment of the court was delivered by MISRA, J.
Special leave granted.
We have carefully considered the various aspects of the case and we are of the view that having regard to the nature of the dispute and the fact that the offences, if any, are alleged to have been committed more than six years ago and the appellant was merely a trader at the 174 lowest rung of the hierarchy in the Foreign Exchange Divi sion of the Bank and not a highly placed officer and the trial is bound to occupy the time of the court of first instance for not less that two or three years in view of the complicated nature of the case and even then, it is extreme ly doubtful whether it will at all result in conviction, no useful purpose will be served by allowing the prosecutions to continue.
Hence, we allow the appeals and quash the charges against the appellant.
We may, however, make it clear that if the Bank has any legitimate claim against the appellant, it will be open to the Bank to pursue any civil remedies which may be available to it.
M.L.A. Appeals al lowed.

summary/full:
HELD: 1.
The fact that the offences, if any, are alleged to have been committed more than six years ago and the appellant was merely a trader at the lowest rung of the hierarchy in the Foreign Exchange Division of the Bank and not a highly placed officer and the trial is bound to occupy the time of the ' court of tint instance for not less than two or three years in view of the complicated nature of the case and even then, it is extremely doubtful whether it will at all result in conviction no useful purpose will he served by allowing the prosecutions to continue.
[H 174A] However, if the Bank has any legitimate claim against the appellant, it will he open to the Bank to pursue any civil remedies which may be available to it.
[174B]


judgement:
vil Appeal No. 1862 (NT) of 1971.
From the Judgment & Order dated 13.7.1970 of the High Court of Allahabad at Lucknow Bench in Writ Petition No. 849/70.
Ms. Lira Goswami and D.N. Mishra for the Appellants.
A.D. Singh, Mrs. Ashok K. Gupta, Raj Singh Rana, Mrs. section Dikshit and B .P.
Maheshwari for the Respondents.
The Judgment of the Court was delivered by BHAGWATI, CJ.
This appeal by certificate raises a short question as to the constitutional validity of section 29 A of the U.P. Sales Tax Act, 1948.
This section, which was introduced in the U.P. Sales Tax Act, 1948 by section 17 of the U.P. Taxation Laws (Amendment) Act, 1969, has been held to be constitutionally valid by a Division Bench of the Allahabad High Court on 13th July 1970.
The appellants question the correctness of this view taken by the High Court.
The appellants carry on business as dealers in coal and they are 88 registered as such under the U.P. Sales Tax Act, 1948.
Prior to 1st October 1965, there was no sales tax levied on sale of coal and for the first time on 1st October 1965, coal became a taxable commodity under the U.P. Sales Tax Act, 1948.
The appellants, proceeding on the footing that sales tax was payable by them on sale of coal from and after 1st October 1965, collected amounts by way of sales tax from the purchasers and submitted their returns for the assessment year 1965 66 after depositing a sum of Rs. 10,073.86 repre senting the amount of tax payable by them in accordance with their returns.
It was, however, found as a result of the assessment order made by the Sales Tax Officer on 28th March 1970 that no sales tax was payable by the appellants on sales of coal under the U.P. Sales Tax Act, 1948.
The appel lants thereupon claimed refund of the sum of Rs. 10,073.86 but the Sales Tax Officer rejected the claim made by the appellants on the ground that by reason of section 29 A, no refund was claimable by the appellants and the only persons entitled to claim refund were those from whom the appellants had collected the tax.
This order made by the Sales Tax Officer was challenged by the appellants by filing a writ petition in the High Court of Allahabad and the principal ground on which the correctness of this order was challenged was that section 29 A was ultra vires as being outside the legislative competence of the State Legislature.
The High Court negatived this challenge and upheld the constitutional validity of section 29 A and on this view, sustained the order made by the Sales Tax Officer.
The appellants there upon preferred the present appeal after obtaining certifi cate of fitness from the High Court.
It is necessary at this stage to set out the relevant provisions of the U.P. Sales Tax Act, 1948 as they stood at the material time.
Subsection (4) of section 8 A made the following provision: "(4) Without prejudice to the provisions of clause (f) of section 14, the amount rea lised by any person as tax on sale of any goods, shall, notwithstanding anything con tained in any other provision of this Act, be deposited by him in a Government treasury within such period as may be prescribed, if the amount so realised exceeds the amount payable as tax in respect of that sale or if no tax is payable in respect thereof.
" Sub section (5) was added in section 8 A by section 11 of the U.P. Taxation Laws (Amendment) Act, 1965 and it read as follows: 89 "(5) Where a dealer is found not liable to be assessed to tax by reason of his turnover being less than the amount specified in or under section 3, or sub section (1) or (2) of section 18, but has realised any tax as such in respect of such turnover, he shall, not withstanding anything contained in this Act, be liable to pay the same to the State Govern ment and shall deposit it into the treasury within 30 days of the date of the order by which he was found not so liable, unless it has already been so deposited." Since, having regard to the judgment of this Court, in R. Abdul Qader & Co. vs Sales Tax Officer, Hyderabad, ; it was doubtful whether sub sections (4) and (5) of section 8 A, standing by themselves, would fail within the legislative competence of the State Legislature.
Section 29 A was inserted in the U.P. Sales Tax Act, 1948 by section 17 of the Taxation Laws (Amendment) Act 1969: Refund in Special Cases Notwithstanding anything contained in this Act or in any other law for the time being in force or in any judgment, decree or order of any court, where any amount is either deposited or paid by any dealer or other person under sub section (4) or sub section (5) of section 8 A, such amount or any part thereof shall on a claim being made in that behalf in such form and within such period as may be prescribed, be refunded to the person from whom such dealer or the person had actually realised such amount or part, and to no other person.
" The question is whether this section, as it stood at the material time in the form in which it was introduced by section 17 of the U.P. Taxation Laws (Amendment) Act, 1969, was within the legislative competence of the State Legisla ture.
The only entry under which section 29 A was sought to be brought was Entry 54 in List II of the Seventh Schedule to the Constitution.
Clause (3) of Article 246 read with this entry empowers the State Legislature to make laws with respect to taxes on the sale or purchase of goods.
It is now well settled that an entry in a Legislative List must be read in its widest amplitude and the legislature must be held to have power not only to legislate with respect to the subject matter of the entry but also to make ancillary or incidental provision in aid of the main topic of legisla tion.
Can section 29 A be justified as exercise of an ancil lary or incidental power of legislation under Entry 547 Now, 90 this question is no longer res integra.
It stands concluded by the decision of this Court in R.S. Joshi vs Ajit Mills, ; It is no doubt true that the decision of this Court in Ashoka Marketing Ltd. vs State of Bihar & Anr., ; does seem to indicate that a provi sion such as section 29 A would not be justifiable as an exercise of incidental or ancillary power.
There also, the impugned legislative provision, namely, section 20 A of the Bihar Sales Tax Act was very similar to section 29 A and this Court held that it fell outside the legislative competence of the State Legislature.
The Court in Ashoka Marketing Ltd, 's case (supra) did not follow the decision in Orient Paper Mills Ltd. vs State of Orissa & Ors.
, ; where a similar provision was attacked on the same ground but the attack was repelled by the Court.
If the decision in Ashoka Marketing Ltd. 's case (supra) were to be regarded as good law, lsection 29 A would have to be struck down as being outside the legislative competence of the State Legis lature.
But this Court in R.S. Joshi 's case (supra) clearly and categorically disapproved of the decision in Ashoka Marketing Company 's case and reaffirmed the view taken in Orient Paper Mill 's case (supra).
The Court held that the taking over of sums collected by dealers from the public under guise of tax solely with a view to return them to the buyers so deprived is necessarily incidental to 'tax on the sale and purchase of goods '.
Such a provision is manifestly a consumer protection measure since "while suits against dealers to recover paltry sums by a large number of custom ers would lead to endless and expensive litigation, a sim pler process of returning those sums on application by the relevant purchasers would protect the common buyer while depriving the dealers of their unjust gains.
" This Court in a subsequent decision in State of Orissa vs Orissa Cement Ltd. & Ors., also took the same view and pointed out that the decision in Ashoka Marketing Ltd. 's case (supra) was expressly dissented from by the decision in R.S. Joshi 's case (supra).
The decision in R.S. Joshi 's case (supra) must, therefore, be regarded as laying down the correct law on the subject and if that be so.
it is obvious that section 29 A must be held to fall within the legislative competence of the State Legislature and its constitutional validity must be upheld.
The appeal must, therefore, be dismissed.
but since it was filed at a time when the position in law was nebulous and had not been finally settled by the decision in R.S. Joshi 's case (supra) we would direct that there shall be no order as to costs.
P.S.S. Appeal dismissed.

summary/full:
Section 29 A of the U.P. Sales Tax Act, 1948 inserted by section I7 of the U.P. Taxation Laws (Amendment) Act, 1969 pro vided for refund of the amount, realised by a dealer as tax on sale of goods and deposited under sub s.(4) or sub s.(5) of s.8 A of the Act, to the person from whom such dealer had actually realised the same, and to no other Coal became a taxable commodity under the U.P. Sales Tax Act for the first time on 1st October 1965.
The appellants, who were registered as dealers in coal under the Act, on the assumption that sales tax was payable by them on sale of coal from and after 1st October 1965, corrected amounts by way of sales tax from the purchasers and submitted their returns for the assessment year 1965 66 after depositing a sum representing the amount of tax payable by them in ac cordance with their returns.
The Sales Tax Officer, however, found that no sales tax was payable by the appellants on sale of coal under the Act.
The appellants thereupon claimed refund of the amount deposited but the Sales Tax Officer rejected their claim under s.29 A of the Act.
A Writ Petition challenging the correctness of that order and the constitutional vires of s.29 A was rejected by the High Court.
Dismissing the appeal by certificate, the Court, HELD: Section 29 A of the U.P. Sales Tax Act, 1948 introduced by section I7 of the U.P. Taxation Laws (Amendment) Act, 1969 fails within the legislative competence of the State Legislature and is constitutionally valid.
[9OF, 89F] Clause (3) of Art.246 of the Constitution read with Entry 54 in List H of the Seventh Schedule thereto empowers the State Legislature 87 to make laws with respect to taxes on the sale or purchase of goods.
An Entry in a Legislative List must be read in its widest amplitude and the legislature must be held to have power not only to legislate with respect to the subject matter of the entry but also to make ancillary or incidental provision in aid of the main topic of legislation Taking over of sums collected by dealers from the public under guise of tax solely with a view to returning them to the buyers so deprived is necessarily incidental to tax on the sale and purchase of goods.
The enactment of s.29 A can thus he said to be justified as exercise of an ancillary or incidental power of legislation under Entry 54.
[89G, 90D, 89H] R.S. Joshi v; A}it Mills; , , followed.
Ashoka Marketing Ltd. vs State of Bihar & Anr., ; , dissented from.
R. Abdul Qader & Co. vs Sales Tax Officer, Hyderabad, ; , Orient Paper Mills Ltd., vs State of Orissa & Ors., ; and State of Orissa vs Orissa Cement Ltd. & Ors., , referred to.


judgement:
Civil Appeal No. 157 of 1985 From the Judgment and Order dated 20.1.1984 of the Allahabad High Court in W.P. No. 1404 of 1983.
V.M. Tarkunde and Shakeel Ahmed Syed for the Appellant.
S.C. Maheshwari, R.D. Upadhyay and Manoj Saxena for the Respondents.
The Judgment of the Court was delivered by SINGH, J.
This appeal by special leave is directed against the judgment of the High Court of Allahabad (Lucknow Bench) dt.
January 20, 1984 setting aside order of the Addl.
District Judge, Lucknow dt.
January 18, 1983 and quashing the allotment order made in appellant 's favour and directing the Addl.
District Magistrate (Civil Supplies), Lucknow to reconsider the applications made for allot ment of the premises in dispute after giving notice to the respondent landlord.
129 The dispute relates to 1st floor of House No. 109/16 situate in Model House Colony, Aminabad, Lucknow.
Mauji Ram Gupta the owner of the house was residing in the ground floor of the house while the 1st floor was let out to a tenant.
Vacancy in the first floor arose, several persons including the appellant, H.C. Ghildiyal and Ramakant Srivastava made appli cations for allotment of the same.
Mauji Ram Gupta, the landlord also made an application for the release of the premises to him under sec.
16 of the U.P Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act).
The Addl.
District Magistrate, respondent No. 4 by his Order dt.
25.2.76 rejected Mauji Ram Gupta 's application and allotted the premises to H.C. Ghildiyal, but he did not occupy the premises; instead he informed respondent No. 4 that he did not require the premises.
Thereaf ter respondent no.4 allotted the first floor of the house to the appellant by his order dt.
July 23, 1976 and in pursuance to that order she obtained possession of the premises on 25.7.76.
Mauji Ram Gupta, the landlord chal lenged the allotment order by means of revi sion application before the District Judge but the same was rejected.
Mauji Ram Gupta entered into an agreement for the sale of the house with G.L. Pahwa, respondent No. 1 and in part performance of the agreement he permitted G.L. Pahwa to occupy the ground floor of the house in November 1976.
G.L. Pahwa made application for allotment and the respondent No. 4 allot ted the ground floor to him on 31.12.76, this appears to have been done with a view to regularise his possession.
Mauji Ram Gupta executed a registered sale deed in favour of G.L. Pahwa on 18.7.77 transferring the entire house including the premises in dispute to him, as a result of which respondent No. 1 became the owner and the landlord of the premises in dispute.
R.K. Srivastava on unsuc cessful applicant for the allotment of the premises in dispute had challenged the allot ment order dt.
23.7.86 made in appellant 's favour under sec.
18 of the Act.
The District Judge by his order dt.
18.8.77 allowed his revision application set aside the allotment order made in appellant 's favour and directed respondent No. 4 to reconsider the applica tions made for allotment of the premises in accordance with law.
In pursuance of the directions issued by the District Judge re spondent No. 4 considered the applications and by his order dt.
4.1.78 he again allotted the premises to the appellant and rejected the claims of other applicants.
Notice of the allotment proceedings was not given to re spondent No. 1, although by that time he had acquired full rights of a landlord.
It appears that respondent had made an application to the State Govt.
for release of the first floor and that had been forwarded by the Govt.
to re spondent No. 4, which he disposed of by the same order dt. 4.1.78.
Respondent No. 1 filed a 130 revision application under sec.
18 of the Act challenging the allotment order dt. 4.1.78.
He filed a review application also before re spondent No. 4 for recall of the order dt. 4.1.78.
During the pendency of the review application the revision application made by respondent No. 1 was dismissed by the District Judge on 28.2.78 for want of prosecution.
However the review application of respondent No. 1 was allowed by respondent No. 4 by his order dr. 14.12.81 on the finding that since the premises in dispute was a part of land lord 's building which he was occupying, it was mandatory that notice should have been issued to the landlord and since no notice had been issued to him the allotment order was vitiat ed.
On these findings, he recalled his Order dated 4.1.78.
The appellant challenged the order by means of a revision application before the District Judge under sec.
18 of the Act.
The Addl.
District Judge, Lucknow exer cising powers of the District Judge allowed the revision application by his order dt.
18.1.83, and set aside the order of respondent No. 4 dt.
14.12.81, on the findings that review application was not maintainable and respondent No. 4 had no jurisdiction to review his order on the ground of absence of notice to respondent No. 1 who was transferee land lord.
Respondent No. 1 challenged the validity of the order of the Addl.
District Judge dt.
18.1.83 by means of a writ petition under article 226 of the Constitution before the High Court.
A learned Single Judge of the High Court allowed the writ petition by his order dt.
January 20, 1984 and quashed the order of the Addl.
District Judge and directed respondent No. 4 to consider the application for allot ment for giving notice to respondent No. 1.
Aggrieved the appellant challenged the validi ty of the order of the High Court.
Before we consider the submissions made on behalf of the appellant it is necessary to briefly notice the findings recorded by the High Court.
The High Court held that since the District Judge while setting aside the initial order of allotment made in appellant 's favour dt.
23.7.76 directed respondent No. 4 to consider the allotment applications in accord ance with law.
Respondent No. 4 was under a legal duty to issue notice to respondent No. 1 who had by that time acquired rights of land lord.
Since no notice was given to him the allotment proceeding was rendered illegal.
The High Court further held that even though the landlord 's application for release of the premises in dispute had been rejected, the transferee landlord had right to nominate a tenant of his choice in accordance with sec.
17(2) of the Act.
But as no notice was issued to him, he could not exercise his right to nominate a tenant of his choice although the appellant as well as the authority considering the application, for allotment both had ac quired 131 knowledge that respondent No. 1 was the trans feree landlord occupying a portion of the building.
The High Court held that provisions of sec.
17(2) were mandatory and its non compliance rendered the allotment order void.
The High Court held that as the order of allotment dt. 4.1.78 was made without giving notice to the landlord, the alloting authority was competent to recall its order in exercise of its inherent jurisdiction.
On these find ings the High Court set aside the order of the Addl.
District Judge and directed the alloting authority to reconsider the applications for allotment after giving notice to the landlord respondent No. 1.
Shri Tarkundc learned counsel for the appellant urged that the High Court committed error in setting aside the allotment order and directing the District Magistrate to reconsid er the allotment applications at the instance of G.L. Pahwa, respondent No. 1.
He further urged that since Mauji Ram Gupta, the erst while landlord 's application for release of the premises in dispute had been dismissed and revision against that was also dismissed for non prosecution, the erstwhile landlord had exhausted all his rights available to him under the Act.
G.L. Pahwa being the successor in interest of Mauji Ram Gupta, did not and could not acquire any further right either to get the premises in dispute released in his favour or to challenge the validity of the allotment order.
G.L. Pahwa was not entitled to maintain a review application and Addition al District Magistrate had no jurisdiction to recall his order dated 4.1.78 alloting the premises to the appellant and further he was not entitled to any notice either under sec tion 17(2) of the Act or under Rule 9(3), as the requisite notice had already been issued to the erstwhile landlord Mauji Ram Gupta who had contested the allotment proceedings.
Having given our anxious consideration to these submissions and having regard to the facts and circumstance of the case we do not find any merit in the submissions.
When a building or a part of a building falls vacant or is likely to fail vacant, the District Magistrate under section 16(1)(a) of the Act has jurisdiction to issue allotment order requiring the landlord to let the build ing or part thereof to the person specified in the order.
The landlord may apply to the District Magistrate for release of the whole or any part of such building under section 16(1)(b) of the Act, if the release applica tion is allowed, the landlord is permitted to occupy the building or part thereof as the case may be.
But if release application is dismissed the District Magistrate is empowered to issue allotment order in favour of an applicant, and in pursuance thereof the allot tee is entitled to take possession.
Before applications for allotment are con 132 sidered by the District Magistrate it is mandatory for him to serve notice of the vacancy on the landlord informing him the date on which the allotment is to be considered as prescribed by Rule 9 of the U.P. Urban Build ings (Regulation of Letting, Rent and Evic tion) Rules, 1972 (hereinafter referred to as the Rules).
Rule 9(3) requires service of notice and intimation of the date fixed for considering the allotment of the premises which may have fallen vacant or is likely to fall vacant.
This is mandatory as has been held by this Court in Yoginder Tiwari vs District Judge, Gorakhpur and Ors., and in catena of cases the High Court of Allahabad, has taken the same view, it is not necessary to burden the judgment by refer ring to all those decisions.
The object and purpose of the notice to the landlord regard ing the date fixed for allotment proceedings is to enable him to file his objections if any, to the allotment proceedings or to make application for release of the premises as contemplated by section 16(1)(a) of the Act or to nominate a tenant of his choice if he himself is in occupation of a portion of the building.
An allotment order made without giving notice to the landlord as required by Rule 9(3) would be rendered illegal.
We there fore agree with the view taken by the High Court.
At the initial stage of allotment proceed ings for the year 1976, Mauji Ram Gupta, the erstwhile landlord had made application for release of the accommodation and the first floor of the house, but that application was rejected and thereupon the District Magistrate allotted the premises to H.C. Ghildiyal by his order dated 23.7.76 Mauji Ram Gupta 's revision application against the order rejecting his release application was rejected by the Dis trict Judge on 5.8.76.
Meanwhile the District Magistrate allotted the premises to the appel lant by his order dated 23.7.76.
On the dis missal of the revision application of Mauji Ram Gupta, his claim for release of the premises in dispute stood rejected final ly.
As noted earlier Mauji Ram Gupta sold the entire house in dispute to G.L. Pahwa on 18.7.77 and the allotment order in appellant 's favour was set aside by the Additional Dis trict Judge on 8.8.77 at the instance of R.K. Srivastava on unsuccessful applicant for the allotment of the premises in dispute.
It is noteworthy that the appellant took no pro ceedings to challenge the order of Additional District Judge dt. 8.8.77 under which the allotment order was set aside and the District Magistrate was directed to reconsider the allotment applications in accordance with law.
In such a situation G.L. Pahwa who had admittedly became the landlord of the premises in dispute was entitled to exercise fights of the landlord available to him under the Act.
Section 17(2) lays down that where a part of a building is in occu 133 pation of landlord for a residential purpose, the allotment of any other part thereof under section 16(1)(a) shall be made in favour of a person nominated by the landlord.
This provision safeguards interest of the landlord to have a tenant of his choice if he is occupying a portion of the building.
The legislature enacted sec.
17(2) with a view to ensure peaceful living to a landlord and for that purpose it permitted the landlord to have a tenant of his choice.
The. landlord 's valuable right cannot be taken away by the Dis trict Magistrate while exercising his powers of allotment under sec.
16(1)(a) of the Act.
The scope and purpose of sec.
17(2) of the Act was considered by this Court in Babu Singh Chauhan vs Rajkumar Jain & Ors., ; and the Court observed: "A perusal of this statutory provision would clearly dis close that the object of the Act was that where a tenant inducted by the landlord voluntarily vacates the premises, which arc a part of the building occupied by the landlord, and allotment in the vacancy should be made only to a person nominated by the landlord.
The dominant purpose to be sub served by the Act is manifestly the question of removing any inconvenience to the landlord by imposing or thrusting on the premises an unpleasant neighbour or a tenant who invades the right of privacy of the landlord.
It is obvious that if the tenant has vacated the premises by himself and not at the instance of the landlord, there is no question of the landlord occupying the said premises because he has got a separate remedy for evicting the tenant on the grounds of personal necessity.
The statute, however, while empowering the prescribed authority to allot the accommodation, safe guards at least the right of the landlord to have a tenant of his choice.
" In the instant case there is no dispute that when the allotment proceedings were taken in pursuance of the Dis trict Judge 's Order dt. 8.8.77 and when the allotment was made in appellant 's favour on 4.1.78 no notice of the allot ment proceedings was issued to G.L. Pahwa, respondent No. 1, although the appellant as well as the Addl.
District Magis trate both knew that G.L. Pahwa had stepped in the shoes of landlord and that he was occupying ground floor of the building.
The allotment order was made in appellant 's favour on 4.1.78, but the landlord, though residing in a part of the building was denied opportunity of nominating a tenant of his choice as contemplated by sec.
17(2) of the Act.
In these circumstances there can be no doubt that 134 the order of the Addl.
District Magistrate alloting the premises to the appellant was completely without jurisdic tion and against the plain terms of sec.
17(2) of the Act.
The submission of Shri Tarkunde that on dismissal of the revision application of Mauji Ram Gupta the erstwhile land lord, all fights of the landlord stood exhausted and G.L. Pahwa being the transferee landlord could not exercise any further fight of landlord in the matter relating to allot ment of the premises in dispute are untenable.
Mauji Ram Gupta 's application for release of the premises was dis missed and a revision application filed 'by him against the order of the Addl.
District Magistrate refusing to release premises in dispute stood rejected, but if the conditions set out in sec.
16(1)(b) existed we see no reason as to why the transferee landlord could.
not press his case for re lease but we do not think it necessary to consider this question in detail or to express any opinion on this ques tion as admittedly the transferee landlord respondent No. 1 made no application for release of the premises in dispute to the District Magistrate or to the prescribed authority and his application made to the State Government for release of the accommodation which was forwarded to the District Magistrate was rejected and the High Court has upheld that order and no challenge has been made by G.L. Pahwa to that order.
Assuming that the transferee landlord 's fight to get the premises in dispute released stood exhausted, G.L. Pahwa being the landlord had every fight to nominate a tenant of his choice in accordance with sec.
17(2) of the Act.
Admit tedly no notice had been issued to G.L. Pahwa affording any opportunity of nominating a tenant of his choice before the order of allotment dt. 4.1.78 was made.
The landlord has fight to apply for release of the premises on the falling of a vacancy failing which he has another fight under sec.
17(2) to nominate a tenant of his choice if he is occupying a portion of the building.
It is the duty of the authority considering the allotment under sec.
16(1)(a) of the Act, to afford opportunity to the landlord to nominate tenant of his choice and if the landlord nominates a person of his choice the authority is bound to allot the premises in favour of the nominee of the landlord.
Mauji Ram Gupta was not given that opportunity, there was thus no question of his having exhausted his right to nominate a tenant of his choice.
Learned counsel for the appellant urged that the Addl.
District Magistrate had no power to allow the review appli cation made by G.L. Pahwa or to recall his order dt. 4.1.78 alloting the premises in dispute to the appellant.
16(5) provides for review of an order of allotment at the instance of a landlord on an application made within 7 135 days.
In the instant case the Addl.
District Magistrate by his Order dt.
14.12.81 recalled his order dt.
4.1. 78 allot ing the premises in dispute to the appellant on the ground that no notice of the proceeding had been served on the landlord, respondent No. 1 and that there was enough evi dence on record to show that the premises in dispute was a part of the landlord 's accommodation, yet he was not given opportunity to nominate a tenant of his choice.
The Addl.
District Magistrate therefore recalled the order on the ground that the allotment order had been issued in violation of the mandatory provision of sec.
17(2) of the Act.
No exception can be taken to the correctness of the merit of the order of the Addl.
District Magistrate.
As discussed above we have already expressed our opinion that the allot ment order dt. 4.1.78 issued in appellant 's favour was rendered illegal for the non compliance of the mandatory provision of sec.
17(2) of the Act.
In that view even if there was any procedural defect in entertaining the review application, it would not be proper and desirable to inter fere with the order of the Addl.
District Magistrate, more so, when the High Court has already upheld that order.
In view of the above discussion we are of the opinion that the High Court 's order does not suffer from any error of law and the appellant is not entitled to any relief.
We accord ingly dismiss the appeal with costs.
M.L.A. Appeal dis missed.

summary/full:
One Mauji Ram Gupta was the owner of a house consisting of ground floor and first floor.
When the vacancy in the first floor arose, the landlord applied for release of the premises section 16 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972.
Respondent No. 4, the Additional District Magistrate, rejected the claim of the landlord and allotted the first floor to the appellant.
Thereafter, Respondent No. 1 pur chased the disputed house on 18.7.77 and occupied the ground floor.
The aforesaid order of allotment was set aside on 18.8.77 by the District Judge with a direction to respondent No. 4 to reconsider the applications made for allotment of the premises in accordance with law.
Respondent No. 4 reconsidered the applica tions and by his order dated 4.1.78, again allotted the premises to the appellant after rejecting the claims of other applicants.
However, in a review petition filed by re spondent No. landlord, Respondent No. 4 set aside the aforesaid order of allotment by his order dated 14.12.81 on the ground that since the premises in dispute was a part of the landlord 's building which he was occupying, it was mandatory under section 17(2) of the Act that notice should have been issued to the landlord and since no notice had been issued to the landlord, the order was vitiated.
Aggrieved by the order of Respondent No. 4 the appellant filed a revision application before the District Judge.
The District Judge set aside the order dated 14.12.81 passed by Respondent No. 4 but the same was restored by the High Court in a writ petition filed by respondent No. 1.
The High Court also directed respondent No. 4 to consider the 127 applications for allotment after giving notice to the landlord respondent No. 1.
Dismissing the appeal to this Court, HELD: 1.
The allotment order dated 4.1.78 issued in appellant 's favour was rendered illegal for the non compliance of the mandato ry provisions of sec.
17(2) of the Act.
In that view even if there was any procedural defect in entertaining the review application, it would not be proper and desirable to inter fere with the order of the Addl.
District Magistrate, more so, when the High Court has already upheld that order.
[I35C] 2.1 When a building or a part of a build ing falls vacant or is likely to fall vacant, the District Magistrate under section 16(1) of the Act has jurisdiction to issue allotment order requiring the landlord to let the building or part thereof to the person specified in the order.
The landlord may apply to the District Magistrate for release of the whole or any part of such building under section 16(i)(b) of the Act.
If the release application is allowed, the landlord is permitted to occupy the build ing or part thereof as the case may be.
But if release application is dismissed the District Magistrate is empowered to issue allotment order in favour of an applicant, and in pursu ance thereof the allottee is entitled to take possession.
[131G H] 2.2.
Before applications for allotment are considered by the District Magistrate, it is mandatory for him to serve notice of the vacancy on the landlord informing him the date on which the allotment is to be considered as prescribed by Rule 9 of the U.P. Urban Build ings (Regulation of Letting, Rent and Evic tion) Rules, 1972.
The object and purpose of the notice to the landlord regarding the date fixed for allotment proceedings is to enable him to file his objections, if any, to the allotment proceedings or to make application for release of the premises as contemplated by section 16(1)(a) of the Act or to nominate a tenant of his choice if he himself is in occupation of a portion of the building.
An allotment order made without giving notice to the land lord as required by Rule 9(3) would be ren dered illegal.
[131H 132A, C D] 2.3.
Section 17(2) of the Act lays down that where a part of a building is in occupa tion of landlord for a residential purpose, the allotment of any other part thereof under section 16(1)(a) shah be made in favour of a person nominated by the landlord.
This provision safeguards interest of the landlord to have a tenant of his choice if he is 128 occupying a portion of the building.
The legislature enacted sec.
17(2) with a view to ensure peaceful living to a landlord and for that purpose, it permitted the landlord to have a tenant of his choice.
The landlord 's valuable right cannot be taken away by the District Magistrate while exercising his powers of allotment under sec.16(1)(a) of the Act.
[132H 133B] In the instant case, no notice of the allotment proceedings was issued to G.L. Pahwa, respondent No. I, although the appel lant as well as the Addl.
District Magistrate both knew that G.L. pahwa had stepped in the shoes of landlord and that he was occupying ground floor of the building.
The allotment order was made in appellant 's favour on 4.1.78, but the landlord, though residing in a part of the building was denied opportunity of nominating a tenant of his choice as contem plated by sec.
17(2) of the Act.
In these circumstances there can be no doubt that the order of the Addl.
District Magistrate allot ing the premises to the appellant was com pletely without jurisdiction and against the plain terms 0/sec.
17(2) of the Act.
[133G 134A] Yoginder Tiwari vs District Judge, Gorakhpur and Ors., & Babu Singh Chau han vs Rajkumar Jain & Ors., ; , relied upon.