judgement:
Civil Appeal Nos.
2815 2819(NT) of 1977 From the Judgment and Order dated 18.10.1976 of the Punjab & Haryana High Court in Civil Writ Nos.
1183, 1184, 1795, 1796 and 1797 of 1970.
O.P. Sharma, L.K. Gupta and Miss A. Subhashini for the Appellant.
S.T. Desai, J.D. Jain and Ms. Kawaljit Kochar for the Respondents.
The Judgment of the Court was delivered by PATHAK, J.
These appeals by special leave are directed against the judgment and order of the High Court of Punjab and Haryana dismissing the writ petitions filed by the appellant against proceedings for the assessment of sales tax.
The appellant, the Government Medical Store Depot, Karnal, is a Depot functioning under the Assistant Director General (Stores) who is in charge of the Medical Stores Organisation in the country under the Directorate General of Health Services, Ministry of Health, Government of India, New Delhi.
It is a department of the Central Government and supplies medicines and hospital equipment manufactured in India or imported from abroad to Government hospitals, 453 Government institutions, Health Centres, Dispensaries and Primary Health Units located in northern India, some of which are run by local bodies such as Panchayats, Panchayat Samitis, Zila Parishads and Municipalities.
It does not deal with private hospitals and individuals.
The organisation works as a public utility service on a 'no profit, no loss ' basis.
The medical stores and hospital equipment are purchased by the appellant and supplied to the hospitals and medical institutions, after adding a service charge of 10 per cent on the cost of the indented stores.
During the year 1956 57, a question arose whether the activities of the appellant brought it within the definition of the expression 'dealer ' as defined in section 2(d) of the Punjab General Sales Tax Act, 1948.
The Excise and Taxation authorities took the view that the appellant was not a dealer because the transactions conducted by it did not include an element of profit.
By a letter dated July 15, 1957, the appellant was informed by the Excise and Taxation Commissioner, Punjab, that it need not be registered under the Punjab General Sales Tax Act.
On August 21, 1968, the Excise and Taxation Officer, Karnal took note of a decision of this Court in Deputy Commercial Tax Officer, Saidapet, Madras vs Enfield India Ltd. Co operative Canteen, [1968] 21 S.T.C. 317 and called upon the appellant to produce its account books for the years 1965 66, 1966 67 and 1967 68 for the purpose of assessment to sales tax on the Medical Stores and equipment supplied by it.
The appellant was also directed to get itself registered as a dealer under the Act.
The appellant replied on August 24, 1968 that it did not fall within the scope of the definition of 'dealer ', and it seems that the Government of India in the Ministry of Health also intervened in the matter.
The Excise and Taxation Officer, however, continued to maintain that the appellant was a dealer within the meaning of the Act.
The Excise and Taxation Officer then issued formal notices to the appellant for the production of its account books for the years 1964 65 to 1968 69, and after giving an opportunity to the appellant to be heard, he proceeded to make assessment orders dated March 25, 1970 for the years 1964 65 and 1965 66, and also passed penalty orders for each year under the Punjab General Sales Tax Act as well as under the Central Sales Tax Act.
He also initiated assessment proceedings for the years 1966 67, 1967 68 and 1968 69.
454 The appellant filed five writ petitions in the High Court of Punjab and Haryana, challenging the assessment proceedings pertaining to the assessment years 1964 65 to 1968 69 respectively taken under the Punjab General Sales Tax Act and the Central Sales Tax Act.
The writ petitions were dismissed by the High Court by a common judgment and order dated October 18, 1976.
The High Court held that the appellant was a dealer notwithstanding that it was not carrying on a business for earning profit.
Learned counsel for the appellant contends that the appellant is not a dealer because the activity carried on by it is pursued without any motive of earning profit and, therefore, it cannot be described as a business.
It is pointed out that the definition of the word 'dealer ' in section 2(d) of the Punjab General Sales Tax Act is different from the definition of that word in section 2(c) of the Haryana General Sales Tax Act.
While the Haryana Act states that a person is a dealer whether or not he is inspired by a profit motive in carrying on his business, no such statement is contained in the definition under the Punjab Act.
It is urged that these appeals are governed by the Punjab General Sales Tax Act and not by the Haryana General Sales Tax Act.
When the Punjab General Sales Tax Act, 1948, was enacted it applied to the territories of the State of Punjab as that State was constituted on the partition of India on August 15, 1947.
The State of Punjab so constituted continued in existence until it was again partitioned under the with effect from the appointed day, November 1, 1966.
The Punjab General Sales Tax Act, which had operated in the territories constituting the original State of Punjab up to October 31, 1966 continued as the law in force on and from November 1, 1966 even in those territories which now comprised the State of Haryana.
This was pursuant to section 88, of the .
Its continuance was subject to any change in the law effected by the Haryana Legislature.
The Haryana Legislature could permit the Punjab General Sales Tax Act to continue in force subject to legislative modifications made by it in that law.
Alternatively, it could supersede and repeal the Punjab Act by enacting an independent Haryana Act to replace it.
The Haryana Legislature amended the Punjab Act from time to time.
It did so, for instance, by the Punjab General Sales Tax (Haryana Amendment and Validation) Act, 1969.
Later, the entire Punjab Act was repealed by the enactment of the Haryana General Sales Tax Act, 1973, which came into effect from May 5, 1973.
Some provisions of the Haryana Act came into 455 force from an earlier date, among being them the definition of 'dealer ' set forth in section 2(c) of that Act which operated retrospectively with effect from September 7, 1955.
The present appeals are concerned with the assessment years 1964 65 to 1968 69, and the question is whether they are governed by the definition of the word 'dealer ' in section 2(d) of the Punjab Act or by section 2(c) of the Haryana Act.
During that period section 2(d) of the Punjab Act, in its application to the State of Haryana, defined the word 'dealer ' as follows: S.2(d).
"Dealer" means any person including a Department of Government who in the normal course of trade sells or purchases goods that are actually delivered for the purpose of consumption in the State of Haryana irrespective of the fact that the main place of business of such person is out side the said State, and where the main place of business of any such person is not in the said State, 'dealer ' includes the local manager or agent of such person in Haryana in respect of such business." Section 2(c) of the Haryana General Sales Tax Act, however, defines the word 'dealer ' in the following terms: section 2(c).
"dealer" means any person including a department of Government who carries on, whether regularly or otherwise, trade whether with or without a profit motive, directly or otherwise, whether for cash, deferred payment, commission, remuneration or other valuable consideration, of purchasing, selling, supplying or distributing any goods in the State, or importing into, or exporting out of the State any goods, irrespective of the fact that the main place of business of such person is outside the State and where the main place of business of such person is not in the State, includes the local manager or agent of such person in the State in respect of such business.
" It is apparent that the existence or absence of a profit motive is irrelevant when identifying a 'dealer ' under the Haryana Act.
No such statement of immateriality is contained in the definition of the word 'dealer ' under the Punjab Act as applied to the State of Haryana.
456 What is important to note is that the definition of the word 'dealer ' in the Haryana Act has been framed only for the purpose of the provisions of that Act.
The opening words of the definition section, section 2, make it clear that the expressions defined by that section are the expressions as used in the Haryana Act.
Wherever, the word 'dealer ' is used in the Haryana Act, one must turn to the definition contained in section 2(c) of that Act.
Now, except for a few specified provisions, the Haryana General Sales Tax Act came into force on May 5, 1973.
Section 6, its charging provision, commenced to operate from that date.
Section 6(1) of the Haryana Act declares that the first year of which the turnover is liable to tax under that Act is the year "immediately preceding the commencement of this Act.
" It is obvious that section 6 does not govern the assessment years which are the subject of these appeals.
Therefore, it is immaterial for our purposes that the definition of the word 'dealer ' under the Haryana Act has to be read retrospectively with effect from September 7, 1955.
Because, as we have pointed out, section 2(c) relates to the word 'dealer ' contained in the provisions of the Haryana Act and the charging provision of the Haryana Act did not operate during the assessment years with which these appeals are concerned.
These appeals will be governed by the Punjab General Sales Tax Act, and it is section 2(d) of that Act which must be looked to for ascertaining the definition of the word 'dealer ' in that Act.
It may be mentioned that section 65 of the Haryana General Sales Tax Act repealed the Punjab General Sales Tax Act.
Section 65 contains a proviso that such repeal will not affect the previous operation of the repealed Act or any right, title, obligation or liability already acquired, accrued or incurred thereunder.
The liability incurred by a dealer in respect of the years under consideration in these appeals is a liability incurred under the charging provision, section 4, of the Punjab General Sales Tax.
To ascertain who such dealer is one must read the definition of the word 'dealer ' in the Punjab General Sales Tax Act.
No reference is permissible for that purpose to the definition in the Haryana General Sales Tax Act.
No doubt the further language in the proviso to section 65 of the Haryana General Sales Tax Act provides that anything done or any action taken in respect of the liability incurred under the Punjab General Sales Tax Act will be deemed to have been done or taken in the exercise of the powers conferred by or under the provisions of the Haryana Act as if that Act was in force on the date on which such thing was done or action taken.
This merely refers to the provisions enacted for the purpose of enforcing the liability and realising the tax and does not affect the position that the charge is under section 4 of the Punjab General Sales Tax Act, and to appreciate who the 457 'dealer ' mentioned therein is, one must turn to section 2(d) of the Punjab Act.
It will be noticed that the definition of the word 'dealer ' in section 2(d) of the Punjab Act does not treat the existence of a profit motive in the business as an immaterial factor.
In Govt.
Medical Store Depot, Gauhati vs The Supdt.
of Taxes, Gauhati & Ors, ; , the question was whether a Government Medical Store Depot set up at Gauhati by the Central Government in the Ministry of Health, Family Planning and Urban Development, for the purpose of procuring and supplying medical stores to Central and State Government institutions could be made liable to sales tax under the Assan Finance (Sales Tax) Act, 1956 and under the .
The appellant, the Government Medical Store Depot, took the stand that the supply of medical stores to the Government institutions were without any profit motive, on the basis of "no loss, no profit", and unless it was found that the transactions had been carried on with a view to making a profit the appellant could not be held to be a 'dealer ' liable to tax.
This Court observed that in the definition of 'business ' the profit motive had not been omitted, and therefore without anything more it could not be said that the person carrying on those transactions was a dealer.
The Court rested the burden on the Revenue to show that the transactions carried on by the appellant were carried on with a profit motive.
In the end, inasmuch as the appeals before it were concerned with the years 1965 66 to 1967 68 having regard to the lapse of time the Court, while allowing the appeals and quashing the assessments, did not think it fit to remand the cases for fresh assessment proceedings.
We think we should do likewise.
Accordingly, the appeals are allowed, the judgment and order of the High Court are set aside and the assessment proceedings which are the subject of these appeals are quashed.
In the circumstances of the case, there is no order as to costs.
M.L.A. Appeals allowed.

summary/full:
Pursuant to section 88 of the , the Punjab General Sales Tax Act, 1948 continued as the law in force on and from Nov. 1, 1966 even in those territories which now comprise the State of Haryana.
The Punjab Act was repealed by the enactment of the Haryana General Sales Tax Act 1973 which came into effect from May 5, 1973.
Some Provisions of the Haryana Act came into force from an earlier date, among being them the definition of 'dealer ' set forth in section 2(c) of that Act which operated retrospectively with effect from Sept. 7, 1955.
The appellant, Government Medical Store Depot, Karnal, set up by the Central Government, used to purchase medical stores and hospital equipment and supplied them only to Government hospitals, Government institutions, health centres, dispensaries and primary health clinics located in northern India on a 'no profit no loss ' basis.
On August 21, 1968, the Excise and Taxation officer Karnal, after giving an opportunity to the appellant, held that the appellant was a dealer under the Punjab Act and proceeded to make assessment orders for the years 1364 65 and 1365 66, and also passed penalty orders for each year.
He also initiated assessment proceedings for the years 1966 67 to 1968 69.
The appellant 's writ petitions in the High Court challenging the aforesaid assessment proceedings were dismissed.
Allowing the appeals by the appellant, ^ HELD: l.(i) The existence or absence of a profit motive is irrelevant when identifying a 'dealer ' under the Haryana Act.
No such 451 statement of immateriality is contained in the definition of the word 'dealer ' under the Punjab Act as applied to the State of Haryana.
The definition of the word 'dealer ' in the Haryana Act has been framed only for the purpose of the provisions of that Act.
The opening words of the definition under section 2 make it clear that the expressions defined by that section are the expressions as used in the Haryana Act.
Wherever the word 'dealer ' is used in the Haryana Act, one must turn to the definition contained in section 2(c) of that Act.
Now, except for a few specified provisions, the Haryana General Sales Tax Act came into force on May 5, 1973.
Section 6, its charging provisions, commenced to operate from that date.
Section 6(1) of the Haryana Act declares that the first year of which the turnover is liable to tax under that Act is the year "Immediately preceding the commencement of this Act.
" It is obvious that section 6 does not govern the assessment years which are the subject of these appeals.
Therefore, it is immaterial as to whether the definition of the word 'dealer ' under the Haryana Act has to be read retrospectively with effect from Sept. 7, 1955.
Section 2(c) relates to the word 'dealer ' contained in the provisions of the Haryana Act, and the charging provision of the Haryana Act did not operate during the assessment years with which these appeals are concerned.
These appeals will be governed by the Punjab General Sales Tax Act, and it is section 2(d) of that Act which must be looked to for ascertaining the definition of the word 'dealer ' in that Act.
[455H; 456A D] 1(ii) The definition of the word 'dealer ' under section 2(d) of the Punjab Act does not treat the existence of the profit motive in the business as an immaterial factor and the burden is on the revenue to show that the transactions carried on by the appellant were carried on with a profit motive.
The assessment proceedings which are the subject of these appeals are therefore quashed.
Having regard to the lapse of time, it is not right to remand the cases for fresh assessment proceedings.
[457D E] 2.
Section 65 of the Haryana General Sales Tax Act repealed the Punjab General Sales Tax Act.
Section 65 contains a proviso that such repeal will not affect the previous operation of the repealed Act or any right, title, obligation or liability already acquired, accrued or incurred thereunder.
The liability incurred by a dealer in respect of the years under consideration in these appeals is a liability incurred under the charging provision, section 4 of the Punjab General Sales Tax.
To ascertain who such dealer is one must read the definition of the word 'dealer ' in the Punjab General Sales Tax Act.
No reference is permissible for that purpose to the definition in the Haryana General Sales Tax Act.
No doubt the further language in the proviso to section 65 of the Haryana 452 General Sales Tax Act provides that anything done or any action taken in respect of the liability incurred under the Punjab General Tax Act will be deemed to have been done or taken in the exercise of the powers conferred by or under the provisions of the Haryana Act as if that Act was in force on the date on which such thing was done or action taken.
This merely refers to the provisions enacted for the purpose of enforcing the liability and realising the tax, and does not affect the position that the charge is under section 4 of the Punjab General Sales Tax Act, and that to appreciate who the 'dealer ' mentioned therein is, one must turn to section 2(d) of the Punjab Act.
[456E H; 457A] Deputy Commercial Tax Officer, Saidapet, Madras vs Enfield India Ltd. Co operative Canteen, [1968] 21 STC 317 and Government Medical Store Depot, Gauhati vs The Supdt. of Taxes.
Gauhati & Ors., ; , referred to.


judgement:
ivil Appeal Nos. 1041 of 1972 and 578 of 1975 From the Judgment and order dated 28.3.1970 of the Allahabad High Court in First Appeal No.141 of 1958.
Manoj Swarup and Pramod Swarup for the Appellant.
Prithvi Raj and Mrs. Shobha Dikshit for the respondent.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
Both these appeals are by certificate from the High Court of Allahabad and are directed against its modifying common judgment in a proceeding under Section 35 of the Land Acquisition Act, 1894 ( 'Act ' for short).
Appellant Brij Behari Sahai held on lease little more than 42 acres of agricultural land out of Military Estates at Allahabad near the confluence of the Ganges and the Yamuna.
For the purposes of Kumbh Mela in 1954 possession of the said land was taken from November 1953 till March 1954.
The Land Acquisition officer made an Award of compensation and there being difference as to the adequacy of the compensation, the matter was referred to the Court for decision.
Against the decision of the Court enhancing the compensation, the State of Uttar Pradesh carried an appeal to the High Court of Allahabad.
Brij Behari Sahai preferred a cross objection asking for further enhancement of the compensation.
The High Court dealt with the appeal and the cross objection and enhanced the compensation on five heads as indicated in the penultimate paragraph of its judgment but refused to allow statutory solatium of 15%.
Against this judgment of the High Court two separate appeals one by Brij Behari Sahai and the other by the State of Uttar Pradesh have been brought before this Court.
Claimant 's counsel asked for enhancement of the compensation on the basis of evidence but in the course of hearing we declined to 470 entertain such a contention.
Similarly, on behalf of the State challenge was made to the quantum of compensation decreed in the High Court and we did not agree to go into that aspect.
The appeal of the State has, therefore, to be dismissed.
One contention raised by the claimant relates to entitlement of solatium on the compensation decreed.
That question requires to be examined.
It is a fact that the High Court referred to Section 23 (2) of the Act while fixing the quantum of compensation.
We are of the view that Part Vl of the Land Acquisition Act contains a complete code by itself so far as temporary occupation is concerned and provisions of section 23 are not attracted.
Parts 111, IV and V of the Act are connected with acquisition covered by Part II.
Part VI on the other hand deals with temporary occupation of the land.
In acquisition in exercise of the right of eminent domain title of the owner is extinguished and the property vests in the State.
On the other hand, when temporary occupation is taken under Part VI of the Act the title remains untouched.
It is the possession of the property which alone is taken over.
Reference may he made to the proviso in section 36(2) of the Act which contemplates that in a case where possession alone has been taken under section 35 but the land becomes permanently unfit to be used for the purposes for which it was used immediately before possession was taken, it is open to the owner of the property to require the appropriate Government to take steps for acquisition of the land.
This itself is indicative of the position that when possession had been taken under section 35 of the Act it was not a case of acquisition under Part II thereof.
We agree with the view indicated in Tan Bug Taim vs Collector of Bombay, A.I.R. 1946 Bom.
that temporary occupation of land provided in Part VI is distinct from, and is not included in, acquisition of land.
We have already pointed out that clause 'secondly ' in section 23(1) of the Act is not applicable to temporary occupation covered by section 35 of the Act.
Statutory solatium as provided in section 23(2) of the Act does not apply to a case of damage covered by clause 'secondly ' in section 23(1) itself. 'Market value ' occurs in the first clause of section 23(1) of the Act and sub section
(2) of section 23 refers to market value.
Solatium has reference to market value and the mandate to pay solatium is only in respect of market value.
Compensation under section 35 of the Act has no reference to market value and the actual loss sustained by the persons interested in the land is intended to be compensated.
In that view of the matter, to a case of compensation under section 35 of the Act the provisions of section 23(2) of the Act cannot be applied.
The claimant is thus not entitled to any 471 solatium on the compensation determined by the High Court in this case The net result is that both the appeals are dismissed.
Parties are directed to bear their own costs throughout.

dataset_name: IN-Abs

summary/full:
The appeals raise the question whether in a case where the Land Acquisition officer takes temporary occupation, the person interested in the land was entitled to solatium on the compensation decreed in a proceeding under s.35 of the land Acquisition Act.
The High Court refused to allow it.
Dismissing the appeals, the Court ^ HELD: 1.
The provisions of section 23(2) of the Land Acquisition Act providing for payment of statutory solatium are not attracted to a case of compensation under section 35 of that Act.
[470H] 2.
Temporary occupation of land, provided in Part Vl of the Act, is distinct from, and is not included in, acquisition of land under Part II of the Act because in acquisition in exercise of the right of eminent domain title of the owner is extinguished and the property vests in the State, whereas when temporary occupation is taken the title of the owner remains untouched.
[470C D] Tan Bug Taim vs Collector of Bombay, AIR 1946 Bom.
216 referred to.
Clause "secondly" in section 23(1) of the Act is not applicable to temporary occupation covered by section 35 of the Act.
Statutory solatium as provided in section 23(2) of the Act does not apply to a case of damage covered by clause "secondly" in section 23(1) itself.
"Market value" occurs in the first clause of section 23(l) of the Act and sub section
(2) of section 23 refers to market value.
Solatium has reference to market value and the 469 mandate to pay solatium is only in respect of market value.
compensation under section 35 of the Act has no reference to market value and the actual loss sustained by the persons interested in the land only is intended to be compensated.[470F H]


judgement:
Civil Appeal No. 2637 of 1977 From the Judgment and order dated 9.11.1976 of the Madhya Pradesh High Court in Second Appeal No. 223 of 1976.
Rameshwar Nath for the Appellants.
Y.K. Jain for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This is an appeal by special leave arising from the Judgment and order of the High Court of Madhya Pradesh at Jabalpur dated 26th October, 1977.
The landlord appellant filed the eviction suit against the tenant, the predecessor in interest of the respondents.
The appellant runs a girls ' school, being covered by one of its objects.
It needed additional accommodation for the said purpose.
The building was also in dilapidated condition.
The learned trial Judge as well as Appellate Court ordered eviction under section 12 (f) of the Madhya Pradesh Accommodation Control Act, 1961.
The respondents were in occupation of an old shed as a tenant in the said house.
Section 12 (f).
Of the aforesaid Act gives the landlord the right to evict on the grounds, inter alia, as follows: 516 "that the accommodation let for non residential purposes is required bonafide by the landlord for the purpose of continuing or starting his business or that any of his major sons or unmarried daughters if he is the owner thereof or of any person for whose benefit the accommodation is held and 13 that the landlord or such person has no other reasonably suitable non residential accommodation of his own in his occupation in the city or town concerned." Section 12 (g) deals with the situation where the building has become unsafe or unfit and the landlord wants the premises for carrying out repairs.
Section 12 (h) on the other hand deals with the case where the accommodation is required bonafide by the landlord for the purpose of building or re building or making thereto any substantial additions or alterations and such additions or alterations cannot be carried out without the accommodation in the occupation of tenant being vacated.
Similar provision in section 31 (1)(g) under the Bombay Rents, Hotels and Lodging House Rates Control Act, 1947 came up for consideration before this Court in Ramniklal Pitambardas Mehta vs Inderadaman Amratlal Sheth, [1964] 8 SCR p.1.
This Court held that the case in question fell under clause (g) which is similar to clause (f) of the instant case before us of Madhya Pradesh Accommodation Control Act, section 12 (f).
This Court further held that the mere fact that the landlord intended to make alterations in the house either on account of his sweet will or on account of absolute necessity in view of the condition of the house, would not affect the question of his requiring the house bonafide and reasonably for his occupation, when he had proved his need for occupying the house.
Nothing further need be proved.
In this case, the case of the landlord appellant is clearly covered by section 12(1)(f).
The fact that the building had to be reconstructed for the said purpose is irrelevant.
The learned trial judge as well as the learned appellate court read the sanctioned plan and came to the conclusion that the appellant had proved in this case all the need for expansion of the building for girls ' education which was one of the objects of the appellant society.
The High Court, in our opinion, misread the sanctioned plan which is Ext.
4, which according to the High Court showed in front side of the building abutting the road, a series of shops are to be constructed.
The High Court was of the view that these shops were meant to be let out to tenants.
We are of the opinion that this was a misreading of the plan.
These shops were not indicated as shops to be reconstructed, but as existing building was to be reconstructed for the purpose of school there was no intention of construc 517 tion of shops and let these out.
There was no intention of the landlord appellant to build for the purpose of letting it out.
The learned trial judge as well as appellate judge held that the object was to get the building back for expansion of the activities of the appellant society.
The High Court, therefore, in our opinion fell into error in misconstruing the plan and in holding that the landlord 's claim for eviction was on the ground of reconstruction.
In that view of the matter the High Court went on the examine whether section 12 (h) of the said Act had been complied with.
There was no such necessity, in view of the facts as found by the two courts below.
In any case, in second appeal the High Court should not have interfered with such a question of fact.
This was unwarranted under the facts and circumstances of the case and on the evidence on record and in view of the decision in Ramniklal 's case (supra).
Mr. Jain appearing for the tenant sought to urge before us that the plan indicated that the shops were intended to be reconstructed in the new plan Shri Rameshwar Nath, Counsel for the appellant assured us that it was the intention of the society to reconstruct the building for the purpose of running the school.
In order to avoid any apprehension, though we allow the appeal and restore the order of the learned appellate court as well as learned trial court, we make it clear that in case if any part of the building is used for shops or let out as shops, the first option should be given to the respondents.
We further direct that the building must be constructed on the basis of the plan sanctioned and as appended in the records of this case.
In view of the fact that the respondents were carrying on business for quite long time, they should have some time to vacate.
We direct that the respondents should vacate the premises in their occupation by 31st December, 1986 and handover the same to the appellant to enable the appellant to proceed with construction.
The respondent will file an undertaking on usual terms within a month from today.
The order of the High Court is set aside.
The orders of the learned Addl.
District Judge and the trial court are restored subject to the modifications indicated above.
We further direct that after obtaining the possession of the premises from the respondents, the appellant should proceed to construct as quickly as possible.
In the facts and circumstances of the case the parties will pay and bear their own costs.
A.P.J. Appeal allowed.

summary/full:
The landlord appellant running a girls ' school.
filed an eviction suit against the tenant, the predecessor in interest of the respondent, on the ground that it needed additional accommodation for the school.
The trial Judge as well as the Appellate Court ordered eviction under section 12(i)(f) of the Madhya Pradesh Accommodation Control Act, 1961 holding that the object of the appellant society was to get the building back for expansion of its activities and had proved the same.
The High Court, however, in second appeal examined the sanctioned plan, held that the landlord 's claim for eviction was on the ground of reconstruction, and the series of shops shown in the plan were meant to be let out to tenants and set aside the order of eviction passed by the two courts below.
Allowing the appeal to this Court, ^ HELD: l(i).
The order of the High Court is set aside.
The orders of the Additional District Judge and the Trial Court are restored with the modification that in case any part of the building is used for shop or let out as shop, the first option should be given to the respondents and of that the building must be constructed on the basis of the appended sanctioned plan.
[517G; E] 1(ii).
The High Court fell into error in misconstruing the plan Ext.
4 and in holding that the landlord 's claim for eviction was on the ground of reconstruction.
The High Court went on to examine whether section 12(h) of the Act had been complied with.
There was no such necessity 515 in view of the facts as found by the two courts below.
In any case, in second appeal the High Court should not have interfered with such a question of fact.
[517B C] 2.
The case of the landlord appellant is clearly covered by s.12(1)(f) of the Madhya Pradesh Accommodation Control Act, 1961.
The mere fact that the landlord intended to make alterations in the house either on account of his sweet will or on account of absolute necessity in view of the condition of the house, would not affect the question of his requiring the house bona fide and reasonably for his occupation, when he had proved his need for occupying the house.
[516E F] Ramniklal Pitambardas Mehta vs Inderadaman Amratlal Sheth [1964] 8 SCR p.1, followed.


judgement:
ransfer Petition No. 212 of 1986 Under Section 25 of the Code of Civil Procedure 1908.
M.K. Banerji, Solicitor General, A.K. Ganguli, R.D. Agar vala, and Miss Sushma Relhan for the Petitioners.
Hardev Singh, S.S. Sood, Bishamber Lal and R.S. Sodhi for the Respondents.
474 The Judgement of the Court was delivered by SABYASACHI MUKHARJI, J. This is an application for transfer under Section 25 of the Code of Civil Procedure filed by Union of India seeking transfer of a suit instituted before the Court of Senior Sub Judge, Amritsar by Respondents Nos. 1 and 2 i.e. Shiromani Gurdwara Prabandhak Committee, Amritsar and Sardar Gurcharan Singh Tohra, President, Shiromani Gurdwara Prabandhak Committee, Amritsar.
The suit claims damages of Rs.1,000 Crores for causing loss to movable and immovable properties of the various Gurdwaras being administered and managed by the Plaintiff No. 1 under the provisions of the Punjab Sikh Gurdwaras Act, 1925, during the period from June to September 1984, by the defendants, their employees, servants and agents by making a deliberate, unprovoked, unwarranted, unannounced, wanton and catastrophic attack by the various armed servants and employees of the defendants on the Gurdwaras in the Golden Temple, Amritsar and various other Gurdwaras in the State of Punjab.
It also sought mandatory injunction directing the defendants and their principal functionaries to tender unqualified apology before the Sikh Sangat for causing mental, sentimental, social and spiritual setback and also for causing deep sense of injury to the honour and self respect of Sikhs who are law abiding citizens.
There was also an application under order 33 Rule 1 & 2 of the Code of Civil Procedure for permission of the Court to sue the petitioners and the Respondent No. 3 herein as indigent persons After receiving the summons, the Union of India made an application opposing the application under order 33 Rules 1 & 2 made by the Respondents No. 1 & 2 and further alleging that it did not disclose any cause of action against the petitioners.
There was an amendment application which was allowed in spite of opposition by the Union of India and additions were made of Respondents Nos 4 to 37, some of them are Ministers, officers and Members of Armed Forces, including the present Chief of the Army for their participation in what is known as 'operation Blue Star ' from June, 1984 to September, 1984.
It is not necessary to set out in detail all the allegations made in the Plaint.
In the Plaint it has been alleged that the Shiromani Gurdwara Prabandhak Committee is a statutory organisation established under the provision of the Punjab Sikh Gurdwara Act 1925, for the purpose of administration and managing and looking after the affairs and property of the Sikh Gurdwara.
On 3rd June, 1984, it is alleged in the Plaint, which was the Martyrdom day of Shri Guru Arjun Devji, when 475 a large number of devotees came to the Golden temple complex at Amritsar to commemorate the said occasion the various units of the Armed Forces under the employment of the Union of India as well Police units under the employment of Union of India and the Government of Punjab launched an attack in the Golden temple complex by indiscriminate barbaric firing.
It was alleged that the same was maliciously done.
The defence of Union of India, as it appear from the petition is that it was an act of State necessary for the security and integrity of the State.
The action taken, it is claimed, was an exercise of sovereign power in respect of sovereign acts.
Indubitably, this is an unusual suit at a critical time in Punjab.
The basis of the Transfer Petition is that an extraordinary situation prevails in the State of Punjab in general and in Amritsar in particular for the trial of suit of this nature.
There has been communal tension between different communities as well as between different sections of the same community.
Anything connected with the Golden Temple is an extremely sensitive matter capable of arousing deep passions.
It is, therefore, stated that it is not possible to have a fair trial of the case in Amritsar or other parts of Punjab and it is necessary that the case should be tried in a calm and quite atmosphere.
We have noted the nature of the allegations and have heard learned counsel for the parties, where it has been submitted on behalf of the respondents that there was no communal tension as such in the State of Punjab and that the judicial administration in Punjab is functioning normally and it would be possible to meet the ends of justice in Punjab.
It is true, that the judicial administration is functioning normally in Punjab and it cannot be reasonably apprehended that the justice would not be done by the judiciary of Punjab, but what is stated is reasonable apprehension of the respondent Union of India and the said added respondents that in view of nature of the allegations and their consequences on the feelings of the sentiments of some sections of Sikh Community, justice may not be done.
It is not denied that certain sections of the Sikh community felt very strongly on the operation of Blue Star, their feelings are bound further to be hurt when the trial of this case goes on.
This Court had occasion to deal with this aspect of the matter in G.X. Francis & ors vs Banke Bihari Singh & Anr.
A.I.R. 1958 S.C. 309 where it was a case for transfer from Madhya Pradesh.
Justice Vivian Bose observed that there was ground for transfer from the area 476 because of the bitterness of the communal feeling and bitterness of the atmosphere.
It was reiterated that the Public confidence in the fairness of a trial held in such an atmosphere would be seriously undermined, particularly among the section of the community, and there was apprehension that administration of justice would not be possible in such atmosphere.
This was reiterated in Hazara Singh Gill vs The State of Punjab, ; where Justice Hidayatullah as the learned Chief Justice then was, observed that the question was really whether the petitioner can be said to entertain reasonably an apprehension that he would not get justice.
One of the highest principles in the administration of law is that justice should not only be done but should be seen to be done.
In that case there was enough allegation to show that certain strong parties were opposed to the petitioner in various ways.
In this case, in view of the nature of allegations regarding some of the respondents who have been added, strong feelings are likely to be roused in some section of community.
In such an atmosphere to meet the ends of justice it would be desirable to have the case transferred to a calmer and quieter atmosphere.
Justice would be done in such a way.
The power of this Court to transfer a suit or proceeding from one State to another State is a power which should be used with circumspection and caution but if the ends of justice so demand in an appropriate case, this Court should not hesitate to act.
The fact that an extraordinary atmosphere exists in Punjab cannot be denied.
To contend otherwise would be to contend for an unreality.
The suit is unusual and sensitive, and the time is critical.
This Court should act by transferring the case outside the State of Punjab to meet the ends of justice.
That is an absolute imperative in this case.
Our attention was also drawn to a recent decision of this Court in the case of State of Assam vs Atul Vohra, Transfer Petition No. 21/80 where this Court transferred certain writ petitions from the Gauhati High Court to the High Court of Delhi.
In the instant case there was some submission made on behalf of the respondents that the petition was not verified properly.
But on reading paragraphs 3 and 15 of the present petition, we are of the opinion that there are certain allegations which can made ground for reasonable apprehension that justice would not be done in the suit of this nature.
477 In view of that we are of the opinion that in the interest of justice this case should be transferred outside the State of Punjab.
It has been contended that Delhi is not a safer place for trial of this suit.
It has been contended both on behalf of Respondent Nos. 1 & 2 and State of Punjab that in view of recent happenings in Delhi, it is not a safe place for trial of this suit.
After having considered all aspects, we are of the opinion that an extraordinary situation exists in the State of Punjab and not in Delhi.
In view of the special features of the case and after considering the pros and cons, we are of the opinion that it should be tried in the interest of justice outside the State of Punjab.
We nay reiterate that this order shall not in any way be construed as a reflections on the independence and fairness of the judiciary of Punjab or on the ability of the Government of Punjab to maintain law and order in the State of Punjab.
Having regard to the nature of suit and the situation prevailing in the State of Punjab and having considered the submissions of all the parties about the alternative forum, we direct that the suit be tried by a learned Single Judge in the original side of the Delhi High Court.
The suit shall stand transferred accordingly and begin from the stage where it is.
The Chief Justice of the Delhi High Court will assign the learned Judge for hearing.

summary/full:
Respondents I and 2 filed a suit against the petitioners/defendants claiming damages of Rs.1000 crores from the petitioners for causing loss to movable and immovable properties of the various Gurdwaras being administered and managed by respondent No. 1 under the provisions of the Punjab Sikh Gurdwaras Act, 1925 during the period from June to September 84.
They also sought mandatory injunction directing the petitioners and their principal functionaries to tender unqualified apology before the Sikh Sangat for causing mental, sentimental, social and spiritual setback and also for causing deep sense of injury to the honour and self respect of Sikhs who are law abiding citizens.
Besides, an application to sue as indigent persons under order 33, Rule l and 2 of the Code of Civil Procedure was filed.
It was alleged in the plaint that on 3rd June, 1984 the Martyrdom day of Shri Guru Arjun Devji, when a large number of devotees came to the Golden Temple complex at Amritsar to commemorate the said occasion the various units of the Armed Forces under the employment of the petitioners as well as Police units under the employment of petitioners and the Government of Punjab with malice launched an attack in the Golden temple complex by resort to indiscriminate and barbaric firing.
The defence of the petitioners was that it was an Act of State necessary for the security and integrity of the State and that the action taken was an exercise of sovereign power in respect of sovereign acts.
The petitioners in view of the extra ordinary situation prevailing in the State of Punjab in general and in Amritsar in particular moved the present transfer petition under section 25 of the Code of Civil Procedure, aver 473 ring that it is not possible to have a fair trial of the case in Amritsar or other parts of Punjab since the suit is an unusual one and tiled at a critical time in Punjab.
The question is whether the ends of justice requires the transfer of the suit from the State of Punjab to any other State.
Allowing the petition, the Court, ^ HELD: 1.
The power of the Supreme Court to transfer a suit or proceeding from one State to another State is a power which should be used with circumspection and caution but if the ends of justice so demand in an appropriate case, the Court should not hesitate to act.
One of the highest principles in the administration of law is that justice should not only to be done but should be seen to be done.
[476D E;C] 2.
In this case, in view of the nature of allegations regarding some of the respondents who have been added.
strong feelings are likely to be roused in some section of community.
In such an atmosphere to meet the ends of justice it would be desirable to have the case transferred to a calmer and quieter atmosphere.
Justice would be done in such a way.
To contend that no extra ordinary atmosphere exist in Punjab would be to contend for an unreality.
The suit is also unusual and sensitive and the time is critical.
Therefore, the Supreme Court should act by transfering the case outside the State of Punjab to meet the ends of justice.
That is an absolute imperative in this case.
[476D F] G.X. Francis & ors.
vs Banke Bihari Singh & Anr., AIR 1958 SC 309; Hazara Singh Gill vs The State of Punjab, [1964] (4) SCR l; and State of Assam vs Atul Vohra, Transfer Petition No. 21/80 referred to.
(The Court directed the case to be transferred to Delhi High Court to be tried by a learned Single Judge on the original side.) [477D]


judgement:
ition No. 106 of 1980 Under Article 32 of the Constitution of India.
with 509 Civil Appeal No. 2735 of 1986 Arising out of Special Leave Petition (Civil) No. 2775 of 1980.
P.S. Potti, K.R. Chaudhary, Miss Malini Poduval and Miss R. George for the Petitioners.
M.K. Ramamurthy, T.V.S.N. Chari and Miss. V. Grover for the Respondents in W .
No . 106 of 1980.
K. Ram Kumar for the Appellant in C.A. No. 2735 of 1986.
A. Subba Rao for the Respondents in C.A. No. 2735 of 1986.
The Judgment of the Court was delivered by DUTT, J.
The Writ Petition No. 106 of 1980 under Article 32 of the Constitution of India preferred by the petitioners, Smt.
M. Nirmala & 309 others, and the appeal by special leave filed by the State of Andhra Pradesh have been heard together as they involve the common question as to the seniority of certain employees of the Government of Andhra Pradesh in Group II and Group IV services.
Group II services relate to the posts of Junior Assistants in the Secretariat and Group IV services relate to the posts of Lower Division Clerks, Lower Division Assistants, Lower Division Typists and Steno Typists.
The petitioners are working in Group IV services in various Departments of the Government of Andhra Pradesh.
On August 18, 1970 by G.O. Ms. No. 682, the Government of Andhra Pradesh put a ban on direct recruitment of all categories of State and subordinate services, pending the recommendations of the Backward Classes Commission.
In spite of the said order baning direct recruitments, the Government had to appoint employees in all Departments in view of exigencies of circumstances and in the public interest.
Such appointments were made under the General Rule 10(a)(i)(1) on a purely temporary basis.
Most of the petitioners were appointed after April, 1974 as temporary employees under General Rule 10(a)(i)(1).
Indeed, General Rule 10(a)(iii) provides that a person appointed under clause (i) shall, whether or not he possesses the qualifications prescribed for the service, class or category to which he is appointed, be replaced as soon as possible by a member of the service or an approved candidate qualified to hold the post under the rules.
In view of clause (iii) of 510 General Rule 10(a), the appointments of the petitioners were to be replaced as soon as possible by qualified and approved candidates.
In 1973, the ban on recruitment through Public Service Commission was partially lifted.
By G.O. Ms. No. 725 dated December 28, 1973, the Government of Andhra Pradesh directed the Public Service Commission to conduct a special qualifying test for recruitment in Group IV services with a view to regularising the temporary appointments made during the ban period.
One of the conditions of eligibility for appearing at the said qualifying test was, as fixed by the Public Service Commission, two years of service as on 1.1.1973.
As the petitioners were appointed after April, 1974, the question of their appearing at the said qualifying test did not arise.
It appears that those who appeared at the said test were all absorbed in the regular service.
On the representation of the temporary employees who were not absorbed, the Public Service Commission conducted another special qualifying test as directed by the Government by G.O. Ms. No. 787 dated November 9, 1976.
The petitioners could not avail themselves of the said test as they had not put in two years of service as on 1.1.1976 as fixed by the Public Service Commission.
The temporary employees including the petitioners who were appointed on or after January 2, 1974, became eligible only in 1976 in which year a test for recruitment through Public Service Commission was conducted to facilitate all temporary employees including the petitioners to compete for regular appointments.
About 82,000 candidates appeared in the test for Group IV services.
The petitioners, however, did not appear at the said qualifying test even though they were eligible for the same.
At the same time, the petitioners and others, who did not appear at the qualifying test in 1976, began to put pressure on the Government for their absorption.
The Government was also prevented from replacing the temporary employees including the petitioners by the candidates who were successful in the said qualifying test.
The successful candidates were appointed to additional posts in Group II and Group IV services sometime in 1977 or 1978.
The temporary employees made a representation to the Government that their appointments should be regularised without requiring them to appear at the special qualifying test.
The Government seems to have yielded to the pressure brought to bear upon it by these temporary employees, as a result of which the appointments of successful candidates in the said test could not be regularised.
By Memo No. 1806/ Ser B/78 2 dated 25.1.1979 the Government proposed to fix the inter se 511 seniority between the Public Service Commission candidates, that is, those who passed in the qualifying test held in 1976 and the temporary employees who did not appear at the qualifying test.
Being aggrieved by the said Memo, certain Public Service Commission candidates belonging to Group II services filed a representation petition being R.P.No. 145/79 before the Andhra Pradesh Administrative Tribunal.
i; Subsequently, another representation petition being R.P. No. 447 of 1979 was filed by certain other Public Service Commission candidates belonging to Group IV services including the respondents Nos. 18 to 108 in the Writ Petition.
While the said representation petitions were pending before the Andhra Pradesh Administrative Tribunal, the Government of Andhra Pradesh issued G.O.Ms.
No. 646 dated September 14, 1979 whereby the temporary employees including the petitioners were exempted from appearing at any examination and the posts held by them were withdrawn from the purview of the Public Service Commission.
By another order, being G.O.Ms.
No. 647 dated September 14, 1979, the Government directed regularisation of the temporary employees including the petitioners without subjecting them to any test, written or oral.
One of the conditions of such regularisation, as contained in clause (b) of the G.O.Ms.
No. 647, is that "in the case of temporary Junior Assistants, Typists and Steno Typists in the Secretariat and L.D.Cs, Typists and Steno Typists in the offices of the Heads of Departments, their services should be regularised from the date subsequent to the date of last regular appointment in that category or from the date of temporary appointment whichever is later and subject to the decision of the Andhra Pradesh Administrative Tribunal before which representation petitions in this regard are pending.
" At this stage, it may be stated that R.P. No. 145 of 1979 and R.P. No. 447 of 1979 were both decided by the Tribunal in favour of the Public Service Commission candidates, holding that their appointments were regular and their seniority should be computed from the respective dates of regular appointments under the General Rule 33(a) which, inter alia, provides that the seniority of a person in a service, class, category or grade shall be determined by the date of his first appointment to such service, class, category or grade.
The State of Andhra Pradesh being aggrieved by the said order of the Tribunal passed in R.P. No. 145 of 1979, has preferred the instant appeal by special leave.
It is not in dispute that the Public Service Commission candidates including the respondents Nos. 18 to 108, who belong to Group IV services, were appointed sometime in 1977 or 1978 pursuant to their 512 being successful in the special qualifying test held by the Public Service Commission in 1976.
In view of General Rule 33(a), the seniority of the respondents should be computed from the respective dates of their appointments as held by the Administrative Tribunal.
The petitioners, however, claim that their seniority should be computed from the respective dates of their appointments after April, 1974 so that they maybe placed before the respondents Nos. 18 to 108 in the seniority list.
In our view, the claim of the petitioners is untenable.
The petitioners were not appointed on a regular basis, but by way of stop gap arrangements to be replaced by the appointment of qualified candidates.
The petitioners failed to avail themselves of the opportunity of qualifying themselves for regular appointments by appearing at the special qualifying test held in 1976, although they were eligible for the test.
The Government order being G.O.Ms.
No. 647 dated September 14, 1979 on which much reliance has been placed by Mr. Patti, learned counsel appearing on behalf of the petitioners, does not support their claim of seniority from the respective dates of their appointments after April, 1974.
Under the said G.O.Ms. No.647, the services of the employees belonging to Group IV services would be regularised from the date of last regular appointment in that category or from the date of temporary appointments whichever is later and subject to the decision of the Andhra Pradesh Administrative Tribunal.
The Andhra Pradesh Administrative Tribunal, as stated already, held that the appointments of the Public Service Commission candidates were regular appointments.
The appointments of the Public Service Commission candidates are, therefore, the last regular appointments as contemplated by G.O.Ms. No. 647.
In view of the said decision of the Andhra Pradesh Administrative Tribunal and the directions contained in G.O.Ms. No.647, the services of the petitioners will be regularised subsequent to the respective dates of appointments of the respondents Nos.
18 to 108 or the other employees in Group IV services, who were appointed pursuant to their being successful in the special qualifying test held by the Public Service Compression in 1976.
The petitioners have not challenged the said G.O.Ms.
No. 647; on the contrary, as stated already, they have placed reliance upon the same and have also prayed for the implementation of the same.
The petitioners, therefore, cannot assail the. findings of the Andhra Pradesh Administrative Tribunal and claim that their seniority should be computed from the respective dates of their appointments after April, 1974.
WE have also considered the findings of the Administrative Tri 513 bunal and we are of the view that the findings arrived at by it are quite legal and justified, and no exception can be taken to the same.
For the reasons aforesaid, both the Writ Petition and the appeal are dismissed.
However, in view of the peculiar facts and circumstances of the case, there will be no order as to costs.
S.R. Petition and appeal dismissed.

summary/full:
The petitioners in Writ Petition 106 of 1980 are working in Group IV Services in various departments of the Government of Andhra Pradesh.
Most of them were appointed after 1974, under the General Rule 10(a)(i)(l) on a purely temporary basis due to the existence of a ban on direct recruitment.
After the lifting of the ban partially special qualifying tests were held for regularising their services in 1974 and 1976.
As they did not put in two years of qualifying service as on 1.1.73 and 1.1.76 respectively, they could not take the said examinations.
In 1976 there was another test conducted by the Public Service Commission wherein about 82000 candidates appeared.
The petitioners did not appear in the said test.
Among the several candidates who were appointed sometimes hl 1977 and 1978 were Respondents 18 to 108.
The petitioners were, however, granted complete exemption from appearing at any examination by GOMS 646 dated 14.7.1979 and the posts held by them were withdrawn from the purview of the Public Service Commission.
Earlier to the said Notification Government issued a memo No. 1806/ Ser B/78 2 Gad dated 25.1.79 proposing to fix inter se seniority between the Public Service Commission candidates who qualified in 1976 and the temporary employees including the petitioners who did not appear at the qualifying test.
Being aggrieved, the Service Commission candidates including respondents 18 to 108 in the Writ Petition, filed R.P. No. 447/79 before the State Administrative Tribunal whose decision went in favour of the Service Commission candidates.
Hence the Civil Appeal No. 2735/86 by the State of Andhra Pradesh.
In both the 508 Writ Petitions and the appeal the question related to the computation of seniority of the Service Commission candidates and the temporary employees whose services were regularised by GOMS 647 dated 14.9.79 after exempting them from passing the qualifying examination etc.
by GOMS 646 dated 14.9.1979.
Dismissing the petition and the appeal, the Court, ^ HELD: l.
The petitioners cannot claim that their seniority should be computed from the respective dates of their appointments after April 1974.
The petitioners were not appointed on a regular basis, but by way of stop gap arrangements to be replaced by the appointment of qualified candidates.
The petitioners failed to avail themselves of the opportunity of qualifying themselves for regular appointments by appearing at the special qualifying test held in 1976, although they.
were eligible for the test.
The Government order being GOMS No. 647 dated September 14, 1979 does not support their claim of seniority from the respective dates of their appointments after April 1974.
Under the said GOMS No. 647, the services of the employees belonging to Group IV services would be regularised from the date of last regular appointment in that category or from the date of temporary appointment, whichever is later and subject to the decision of the Andhra Pradesh Administrative Tribunal.
The Andhra Pradesh Administrative Tribunal held that the appointments of the Public Service Commission candidates were regular appointments.
The appointments of the Public Service Commission candidates are, therefore, the last regular appointments as contemplated by GOMS No. 647.
In view of the said decision of the Andhra Pradesh administrative Tribunal and the directions contained in GOMS No. 647, the services of the petitioners will be regularised subsequent to the respective dates of appointments of the respondents Nos.
18 to 108 or the other employees in Group IV services, who were appointed pursuant to their being successful in the special qualifying test held by the Public Service Commission in 1976.
The petitioners have not challenged the said GOMS No. 647; on the contrary, they have placed reliance upon the same and have also prayed for the implementation of the same.
[512B G]


judgement:
Civil Appeal No. 2065 of 1971 From the Judgment and order dated 28.7.1970 of the Calcutta High Court in original order No. 125 of 1970.
B.P. Maheshwari, S.N. Aggarwal and B.M. Bagaria for the Appellants.
D.N. Mukarjee and G.S. Chatterjee for the Respondents.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
This appeal by certificate from the Calcutta High Court assails the affirming judgment of the Division Bench upholding the dismissal of a writ petition challenging the vires of the Calcutta City Civil Court Act (21 of 1953) and its later amendment on the ground of want of legislative competence of the State Legislature.
The City Civil Court Act ( 'Act ' for short), empowered the State Government to establish a civil court to be called the City Civil Court and under section 5 thereof the local limits and the jurisdiction of the City Civil Court was to be the city of Calcutta.
Sub section (2) of s.5 provided: "Subject to the provisions of sub sections (3) and (4), the 549 City Civil Court shall have jurisdiction and the High Court shall not have jurisdiction to try suits and proceedings of a civil nature not exceeding Rs. 10,000 in value.
" The value of Rs. 10,000 was later enhanced to Rs.50,000 and again to Rs. 1 lakh.
The appellant moved the Calcutta High Court for a declaration that the Act was ultra vires the State legislature.
It was contended that Parliament alone had the legislative competence to make law affecting the jurisdiction of the High Court.
The learned single judge as also the Division Bench negatived the appellant 's plea and have held that the Act was intra vires the Constitution.
It is appropriate to refer to the relevant legislative entries in the three lists Union, State and Concurrent as they stood in 1953 when the Act was enacted.
In the Union List entries 77, 78 and 95 are relevant.
They provide: "77.
Constitution, organisation, jurisdiction and powers of the Supreme Court (including contempt of such Court), and the fees taken therein; persons entitled to practise be fore the Supreme Court.
Constitution and organisation (including vacations) of the High Courts except provisions as to officers and servants of High Court; persons entitled to practise before the High Court.
Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this list; admiralty jurisdiction.
" Entry 3, List II at the relevant time provided: "3.
Administration of justice, constitution and organisation of all courts except the Supreme Court and the High Courts; officers and servants of the High Court; procedure in rent and revenue courts; fees taken in all courts except the Supreme Court.
" Entry 65, List II provides: "65.
Jurisdiction and powers of all courts, except the 550 Supreme Court, with respect to any of the matters in this list.
" Entry 46, List III provides: "46.
Jurisdiction and power of all courts, except the Supreme Court, with respect to any of the matters in this list.
" A Constitution Bench of this Court in State of Bombay vs Narothamdas Jethabhai & Anr., ; , examined the validity of the Bombay City Civil Court Act of 1948.
the provisions of that Act and the impugned Act are almost similar.
The challenge to the vires of the Bombay Act had to be examined keeping the provisions of Government of India Act, 1935, in view inasmuch as that was a pre Constitution legislation.
Each of the learned Judges wrote a separate judgment but all of them were agreed that the Bombay Act was a law with respect to a matter enumerated in List II and was not ultra vires.
Entry 53 of List I was to the following effect: "53.
Jurisdiction and powers of all courts, except the Federal Court, with respect to any of the matters in this list . " Entries 1 and 2 of List II were as under: "1.
The administration of justice, constitution and organisation of all courts, except the Federal Court, and fees taken therein; . 2.
Jurisdiction and powers of all courts, except the Federal Court, with respect to any of the matters in this list; procedure in Rent and Revenue Courts.
" Entry 15 of List III was to the following effect: "15.
Jurisdiction and powers of all courts, except the Federal Court, with respect to any of the matters in this List.
" The two relevant entries in List II of the Seventh Schedule of the Constitution authorised law making on subject of administration of justice, constitution and organisation of courts and jurisdiction and pow 551 ers thereof excepting in regard to the Supreme Court.
These were the two expressions with reference to which Fazal Ali, J. in Narotham Das 's case observed thus: ". the expressions "administration of justice" and "constitution and organisation of courts", which have been used therein without any qualification or limitation, are wide enough to include the power and jurisdiction of courts, for how can justice be administered if courts have no power and jurisdiction to administer it, and how can courts function without any power of jurisdiction.
Once this fact is clearly grasped, it follows that, by virtue of the words used in Entry I of List II, the Provincial Legislature can invest the courts constituted by it with power and jurisdiction to try every cause or matter that can be dealt with by a court of civil or criminal jurisdiction and that the expression ' 'administration of justice" must necessarily include the power to try suits and proceedings of a civil as well as criminal nature irrespective of who the parties to the suit or proceeding or what its subject matter may be.
This power must necessarily include the power of defining, enlarging, altering, amending and diminishing the jurisdiction of the courts and defining their jurisdiction territorially and pecuniarily. ' The other learned Judges constituting the Bench took the same view namely, "administration of justice" authorised making of law conferring on, or taking away from, courts, jurisdiction to entertain cases.
This decision of the Constitution Bench clearly negatives the claim of the appellant that the impugned Act was ultra vires the jurisdiction of the West Bengal Legislature.
Admittedly the Act received Presidential assent and was, therefore, competent to bring about a change in the prevailing position obtaining under the Letters Patent of the Calcutta High Court.
A similar challenge as in the present dispute had also been raised before the Calcutta High Court in the case of Amarendra Nath Roy Chowdhury vs Bikash Chandra Ghose & Anr., and a learned single Judge relying on the decision of the Constitution Bench referred to above had held that the Act was intra vires the State legislature.
We are of the view that the decision of the Constitution Bench is a clear and binding precedent against the appellant 's stand.
552 The appeal has no merit and is, therefore.
dismissed.
There will be no order as cost in this Court.
S.R. Appeal dismissed.

summary/full:
The Calcutta City Civil Court Act empowered the State Government to establish a civil court to be called the City Civil Court and under section 5(2) thereof the local limits and the jurisdiction of the City Civil Court was to be the city of Calcutta.
Section 5(2) as it stands now fixed the jurisdiction of the City Civil Court at Rupees one lakh and excluded the High Court 's jurisdiction up to that limit.
The appellant moved the Calcutta High Court for a declaration that the Act was ultra vires the jurisdiction of the State Legislature and contended that Parliament alone had the legislative competence to make law affecting the jurisdiction of the High Court.
The learned Single Judge and also the Division Bench negatived the appellant 's plea and held that the Act was intra vires the Constitution.
Hence the appeal by certificate.
Dismissing the appeal, the Court, ^ HELD: 1.
Entries 1 and 2 of List II of the Government of India Act, 1935 (now Entry llA of List III of the Seventh Schedule of the Constitution) authorised law making on subject of administration of justice, constitution and organisation of courts and jurisdiction and powers thereof excepting in regard to the Supreme Court.
The Calcutta City Civil Court Act received the Presidential assent and was therefore, competent to bring about a change in the prevailing position obtaining 548 under the Letters Patent of the Calcutta High Court.[551E G] 2.
In Narotham Das 's case, the Supreme Court took the view namely, "administration of justice" authorised making of law conferring on, or talking away from, courts, jurisdiction to entertain cases.
Inasmuch as the provisions of the Bombay City Civil Court Act, 1948 considered in Narotham Das 's case and the provisions of the Calcutta Act, are in pari materia, the High Court correctly held that the Act was intra vires the Constitution.
The decision of the Constitution Bench in Narotham Das 's case is clear and binding precedent under Article 141 of the Constitution, against the appellant 's stand.
[551E F;H] State of Bombay vs Narothamdas Jethabhai & Anr., ; , followed.
Amarendra Nath Roy Chowdhury vs Bikash Chandra Ghose & Anr., , approved.


judgement:
Special Leave Petition (Civil) No. 8001 of 1986 From the Judgment and order dated 8.7.1986 of the Allahabad High Court in W.P. No. 9664 of 1986.
U.R. Lalit and T. Sridharan for the Petitioner.
The Judgment of the Court was delivered by MISRA, J.
The short question which arises for consideration in this case is whether a suit is maintainable in a civil court for an injunction restraining the Hearing Authority appointed under section 68 D of the (hereinafter referred to as 'the Act ') from proceedings with the hearing of matters under that provision and from approving a scheme published under section 68 C of the Act either with or without any modification.
The petitioner is the holder of a permit issued under Chapter IV of the Act to ply a stage carriage on Bulandshahr Siana Garh Bugrasi Brijghat Bhasians Shambhaoli Babugarh Jadol Jahangirabad route in the State of Uttar Pradesh.
The State Transport Undertaking of the State of Uttar Pradesh published a scheme dated March 7, 1975 in the U.P. Gazette dated April 5, 1975 under section 68 C of the Act pro posing to operate its stage carriages to the exclusion of all private operators on the route referred to above.
The petitioner filed his objections to the said scheme along with several others.
After a number of adjournments the Hearing Authority empowered under section 68 of the Act was able to conclude the proceedings by April 26, 1979 and it is alleged that the Authority in the course of the hearing ob served that it would finalise and approve the scheme by 21.5.1979.
Before the Hearing Authority could give its approval to the scheme under section 68 D of Act, the petitioner filed original Suit No. 145 of 1979 on the file of the Civil Judge, Bulandshahr for a declaration that the above scheme published under section 68 C of the Act was illegal, void and ultra vires and for an injunction restraining the defendants in the suit from finalising and approving the scheme and acting upon it after it was published.
The State Transport Undertaking, i.e., the Uttar Pradesh State Road Transport Corporation, the State of Uttar Pradesh and the Regional Transport Authority, Meerut were impleaded as the defendents in the suit.
The defendants contested the suit.
L one of the pleas raised in their written statement was that the suit was 543 not maintainable in a civil court for the reliefs prayed for by the petitioner.
During the pendency of the suit the petitioner filed an application before the Civil Court for staying the hearing of the suit till the disposal of a special leave petition before this Court since the question relating to the maintainability of suits of similar nature was involved in the said special leave petition.
The learned Civil Judge declined to grant the request of the petitioner and fixed the suit for arguments on November 8, 1985.
Aggrieved by the order of the Civil Judge, the petitioner filed a revision petition before the Additional District Judge, Bulandshahr.
That revision petition was dismissed.
Against the order of Additional District Judge, the petitioner filed a writ petition.
On the file of the High Court of Allahabad.
That petition was also dismissed.
This special leave petition is filed against the order of the High Court of Allahabad.
We have heard the learned counsel for the petitioner in this case on the question of maintainability of the suit out of which this petition arises.
The question for consideration in this case is, as mentioned above, whether a suit is maintainable in a civil court for an injunction restraining the Hearing Authority under section 68 L) of the Act from proceeding with the hearing and approving the scheme either with or without modification.
The contention of the respondents before the trial court was that the suit was not maintainable for the reliefs prayed for by the petitioner since the jurisdiction of the civil courts in such matters was impliedly barred.
Chapter IVA of the Act was introduced into the Act by Act 100 of 1956.
Section 68 D of the Act provides that the provisions of the Chapter IVA and the rules and orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in Chapter IV of the Act or any other law for the time being in force or in any instrument having effect by virtue of any such law.
Chapter IVA contains certain special provisions relating to the State Transport Undertakings.
A 'State Transport Undertaking ' is defined by section 68 A(b) of the Act as any Undertaking providing road transport J service where such undertaking is carried on by (i) the Central Government or a State Government; (ii) any Road Transport Corporation, established under section 3 of the ; and (iii) any municipality or any corporation or company owned or controlled by the Central Government or one or more State 544 Governments, or by the Central Government and one or more State Governments.
Chapter IVA of the Act provides for the preparation and approval of a scheme enabling the State Transport Undertaking to operate road transport services to the exclusion complete or partial of other persons.
The procedure laid down for the preparation of the scheme is contained in sections 68 C and 68 D of the Act.
Section 68 C of the Act provides that where any State Transport Undertaking is of opinion that for the purpose of providing an efficient, adequate, economical and properly co ordinated road transport service, it is necessary in the public interest that road transport services in general or any particular class of such service in relation to any area or route or portion thereof should be run and operated by the State Transport Undertaking, whether to the exclusion, complete or partial, of other persons or other vise, the State Transport Undertaking may prepare a scheme giving particulars of the nature of the service proposed to be rendered, the area or route proposed to be covered and such other particulars respecting thereto as may be prescribed, and shall cause every such scheme to be published in the official Gazettee and also in such manner as the State Government may direct.
Section 68 D of the Act provides that on the publication of any scheme in the official Gazette any person already providing transport facilities by any means along or near the area or route proposed to be covered by the scheme, any association representing persons interested in the provision of road transport facilities recognised in this behalf by the State Government and any local authority or police authority within whose jurisdiction any part of the area or route proposed to be covered by the scheme lies, may within thirty days from the date of its publication in the official Gazette file objections to it before the State Government.
The State Government may, after considering the objections and after giving an opportunity to the objector or his representatives and the representatives of the State Transport Undertaking to be heard in the matter if they so desire, approve or modify the scheme.
The scheme as approved or modified as stated above shall then be published in the official Gazette by the State Government and the same shall thereupon become final and shall be called the approved scheme and the area or route to which it relates shall be called the notified area or notified route.
Under section 68 I of the Act the State Government is authorised to make rules for the purpose of carrying into effect the provisions of this Chapter.
The rules which are promulgated provide for the details relating to the manner in which objections or representations can be filed under section 68 D(i) and the procedure to be followed at the hearing of persons who have filed such objections 545 and/or representations and the representatives of the State Transport Undertaking.
The rules also provide for the particulars to be incorporated in the scheme published under section 68 C of the Act.
From the above provisions it is clear that on the publication of the scheme under section 68 C of the Act any person who is aggrieved by the proposed introduction of the scheme is entitled to file his representations and objections and to appear before the Hearing Authority under section 68 D of the Act and make his submissions in support of his objections or representations.
Sub section (ii) of section 68 D of the Act authorises the Hearing Authority to approve the scheme either with or without modification.
By necessary implication it can also reject a scheme if it feels that it is not necessary to introduce the scheme.
When the scheme is approved or modified under section 68 D of the Act, such approved or modified scheme is required to be published in the official Gazette and on such publication it becomes final.
It is thus seen that Parliament has created a special machinery by the provisions contained in Chapter IVA of the Act for bringing jnto force an approved or modified scheme which would have the effect of excluding completely or partially other persons from operating motor service vehicles on any route or in any area.
After the scheme become final, as provided in sub section (iii) of section 68 D of Act, the transport authorities concerned can issue permits only in accordance with the scheme and the other provisions contained in Chapter IVA of the Act .
This Court in H. C. Narayanappa and Ors.
vs The State of Mysore and Ors., ; at page 753 has observed that the scheme approved or modified and published under section 68 D of the Act may properly be regarded as 'law ', within the meaning of Article 19(6) of the Constitution, made by the State excluding private operators from notified routes or notified areas, and immune from the attack that it infringes the fundamental right guaranteed by Article 19(1)(g) of the Constitution.
Section 9 of the Code of Civil Procedure, 1908 provides that the courts (subject to the provisions contained therein) have jurisdiction to try all suits of civil nature excepting suits of which their cognizance is either expressly or impliedly barred.
It is no doubt true that there is no express provision in the Act taking away the jurisdiction of the civil courts to try a suit in which the validity of the proceedings under Chapter IVA of the Act is called in question.
But we are of opinion that the jurisdiction of the civil courts is impliedly barred from entertaining suits of the present nature.
The jurisdiction of the State Government (the Hearing Authority under section 68 D of the Act) is exclusive in character and it is not open to a civil court to issue an order of injunction restraining the Hearing Authority from proceeding 546 with the hearing of the case and exercising its statutory functions.
Whenever statute uses the expression that a decision of an authority shall be final, the jurisdiction of a civil court to go into the correctness or otherwise of the decision is taken away.
We have gone through the plaint presented in this case.
It is not disputed that the scheme had been duly published under section 68 C of the Act by an authority which had the power to publish it and that the authority which was hearing the case under section 68 D of the Act had the power to do so.
All the contentions urged in the plaint relate to the merits of the scheme and the desirability of bringing the scheme into force.
All such objections relating to the merits of a scheme or the desirability of bringing such scheme can be raised by an aggrieved person before the Hearing Authority under section 68 D of the Act and it is for the Hearing Authority to consider such objections and representations and to pass appropriate orders thereon.
Where the Statute gives finality to the orders of a special tribunal the civil courts jurisdiction must be held to be excluded insofar as the merits to the case is concerned.
If jurisdiction is so excluded, the civil courts have jurisdiction only to examine whether the provisions of the Statute have not been complied with or the tribunal had or had not acted in conformity with the fundamental principles of judicial procedure.
In cases of the present nature where invariably reliance is placed by the private operators on Article 19(1)(g) of the Constitution, a writ petition lies before the High Court.
In such cases a suit is hardly the remedy which can be availed by them.
If suits of this nature are allowed to be entertained, the very object of the several provisions of Chapter IVA of the Act can be frustrated by interested parties by resorting to a civil court with the sole object of delaying the implementation of a scheme.
Such attempts should be curbed at the earliest opportunity.
The learned Civil Judge was right in declining to stay the further proceedings in the suit.
This is a suit which should have been rejected at the threshold under order 7 rule 11 of the Code of Civil Procedure on the ground that it did not disclose a cause of action.
We, therefore, do not find any ground to interfere with the orders of the High Court, the District Judge and the Civil Judge.
The Civil Judge is directed to dispose of the suit in the light of the observa tions made in this order.
The petition fails and is dismissed.
P.S.S Petition dismissed.

summary/full:
Section 68 C, occurring in Chapter IVA of the provides for publication of the scheme where any State Transport Undertaking is of opinion that it is necessary in the public interest that road transport services in relation to any area or route be run and operated by such undertaking.
Section 68 D(l) provides for filing of objections to the scheme before the State Government, section 68 D(2) for approval or modification of the scheme by the State Government after giving a hearing to objectors, while s.68 D(3) states that the approved or modified scheme when published shall become final.
Before the Hearing Authority could give its approval, the petitioner in the Special Leave Petition, a stage carriage permit holder, who had earlier filed objections to the scheme published under section 68 C, filed a civil suit for declaration that the said scheme was illegal, void and ultra vires and for an injunction.
It was contended by the defendants respondents that the suit was not maintainable since the jurisdiction of the Civil Courts in such matters was impliedly barred.
During the pendency of that suit the petitioner filed an application before the Civil Court for staying the hearing of the suit till the disposal of a special leave petition before the Supreme Court in which question relating to the maintainability of suits of similar nature was involved.
The Court declined to grant the request and fixed the suit for arguments.
The revision to the District Judge and the writ petition to the High Court preferred by the petitioner were dismissed.
In the special leave petition to the Court on the question: Whether a suit is maintainable in a Civil Court for an injunction restraining the Hearing Authority under section 68 D of the from pro 541 ceeding with the hearing and approving the scheme.
Dismissing the special leave petition, ^ HELD: The Civil Judge was right in declining to stay further proceedings in the suit.
This is a suit which should have been rejected at the threshold under order 7 rule 11 of the Code of Civil Procedure on the ground that it did not disclose a cause of action.
[546F G] The Jurisdiction conferred on the hearing authority under s.68D of the is exclusive in character and it is not open to a civil court to issue an order of injunction restraining the said authority from proceeding with the hearing of the case and exercising its statutory functions.
[545H; 546A] Whenever a statute uses the expression that a decision of an authority shall be final, the jurisdiction of a civil court to go into the correctness or otherwise of the decision is taken away.
The civil courts then have jurisdiction only to examine whether the provisions of the statute have not been complied with or the tribunal had or had not acted in conformity with the fundamental principles of judicial procedure.
Their jurisdiction is barred insofar as merits of the case is concerned.
[546B;D E] In the instant case the scheme had been duly published under s 68 C by an authority which had the power to publish it and the authority which was hearing the case under s.68 D had the power to do so.
All the contentions urged in the plaint related to the merits of the scheme and the desirability of bringing the scheme into force and these can be raised by an aggrieved person before the Hearing Authority under section 68 D of the Act.
It is for the Hearing Authority to consider the objections and to pass appropriate orders thereon.
[546B D] Parliament has created a special machinery by the provisions contained in Chapter IVA of the Act for bringing into force an approved or modified scheme which would have the effect of excluding completely or partially other persons from operating motor service vehicles on any route or in any area.
The very object of enacting that Chapter can be frustrated by interested parties by resorting to a civil court with the sole purpose of delaying the implementation of a scheme if suits as in the instant case are allowed to be entertained.
[545C D: 546E F] H.C. Narayanappa and Ors.
vs The State of Mysore & Ors., [19601 3 S.C.R. 742 referred to.