judgement:
Appeal No. 335 of 1957.
Appeal by special leave from the judgment and order dated January 31, 1957, of the Election Tribunal, Ajmer, in Election Petition No. 2 of 1956.
50 388 Mukat Behari Lal Bhargava and Naunit Lal, for the appellant.
Respondent No. 1 in person.
September 12.
The following Judgment of the Court was delivered by KAPUR,J. This is an appeal from the order of the Election Tribunal dated January 31, 1957, setting aside the election of the appellant, Maulana Abdul Shakoor, who was elected to the Council of States by the Electoral College of Ajmer which consisted of 30 members constituting the State Legislature of Ajmer.
He received 19 votes as against 7 polled in favour of the other candidate who is respondent No. 1 in this appeal.
The total number of valid votes polled was 26 and there were 3 invalid votes.
The result of the election was published in the Official Gazette on March 31, 1957, declaring the election of the appellant.
The unsuccessful candidate, the present first respondent, filed his election petition on May 2, 1956.
It is not necessary to set out all the allegations in the petition because the main controversy between the parties is whether the successful candidate, the present appellant, held an " office of profit " under the Government.
The impugned election was held on March 22, 1956.
By a notification issued on February 17, 1956, the nominations for candidature were to be filed between February 28, 1956, and March 1, 1956.
The date for scrutiny was March 5, 1956, and for the polling March 22, 1956.
The appellant filed two nomination papers on February 28, 1956, and a third one on March 1, 1956.
The respondent Rikhab Chand Jain also filed his nomination papers on March 1, 1956.
On March 5, 1956, the respondent Rikhab Chand Jain raised certain objections to the validity of the appellant 's nomination, the main ground being that the appellant was holding an office of profit under the Government.
The Returning Officer by his order dated March 6, 1956, rejected the two nomination papers of the appellant filed on February 28, 1956, but accepted the third one, i.e., of March 1, 1956, because, according to that officer, 389 under the provisions of Durgah Khwaja Saheb (Emeregency Provisions) Act, 1950 (XVII of 1950) which was in force up to February 29, 1956, the appellant was holding an office of profit under the Government but on the coming into force of the Durgah Khwaja Saheb Act (XXXVI of 1955) on March 1, 1956, he no longer held such office under the Government.
On May 3, 1956, the respondent filed an election petition under section 81 of the Representation of the People Act, 1951, in which he submitted that the third nomination paper of the appellant should also have been rejected as even under the provisions of Durgah Khwaja Saheb Act (XXXVI of 1955), the appellant was holding an office of profit under the Government and therefore his case was covered by the provisions of article 102 (1)(a) of the Constitution.
He also prayed that he be declared elected as the votes cast in the appellant 's favour were " thrown away " votes and the respondent alone received a majority of valid votes.
A majority of the Election Tribunal by their order dated January 31, 1957, held that on March 1, 1956, the appellant was holding an office of profit under the Government and therefore his nomination paper was hit by article 102(1) (a) of the Constitution.
They set aside his election and accepting the contention as to " thrown away " votes declared the respondent elected.
Disagreeing with the majority, the Chairman of the Election Tribunal held that on March 1, 1956, the appellant was no longer holding an office of profit under the Government, his nomination paper was rightly accepted and his election was valid and therefore the respondent could not be declared elected.
On the question whether the two nomination papers of the appellant dated February 28, 1956, were valid or not the Tribunal unanimously held them to be invalid on the ground that the appellant held an office of profit under the Government on that date.
It is not necessary to go into the question whether the two nomination papers filed by the appellant on February 28, 1956, were valid or not because if the nomination paper filed on March 1, 1956, is valid the question of their validity would not arise.
It may 390 here be stated that the argument before us has proceeded on the assumption that the appellant held an office of profit.
The controversy between the parties was therefore confined to whether this office of profit was held under the Government of India and therefore the disqualification for membership under article 102(1)(a) applies to the appellant.
In order to resolve this controversy the important question of construction that arises is: was the appellant holding an office of profit under the Government of India and does article 102(1)(a) of the Constitution operate ? This article is as follows: 102(1) " A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament (a) if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder; " This article occurs under the heading Disqualifications of Members.
In the same part of the Constitution, i.e., Part V, are given the disqualifications for election to the offices of President and Vice President.
The relevant part of article 58 which lays down the disqualification for the office of the President is: article 58(1) "No person shall be eligible for election as President unless he (a). . . . . . (b). . . . . . (c). . . . . . (2) A person shall not be eligible for election as President if he holds any office of profit under the Government of India or the Government of any State or under any local or other authority subject to the control of any of the said Governments.
" There is a similar provision in regard to the Vice President in article 66(4).
Counsel has rightly pointed out the difference in the language between the two articles.
Whereas in the case of the President and Vice President the holding of an office of profit under an authority subject to the 391 control of the Government is a, disqualification, it is not so prescribed in the case of members of the legislatures.
The Madarsa Durgah Khwaja Saheb Akbari in which the appellant held the appointment of a manager (mohatmin) is a school for teaching Persian, Arabic and Muslim theology.
Before 1951 it was managed and run by the Government of the Nizam of Hyderabad.
In 1951 this school was taken over by the Durgah Committee.
On February 28, 1955, the appellant was given an honorary appointment of mohatmin (manager) of the school by the Administrator of Durgah Khwaja Saheb.
He was to work under the Administrator and was to hold charge of the management of the school.
But from May 1955 he was being paid Rs. 100 per month which has been variously described as salary and honorarium.
Counsel for the appellant raised three questions of construction that this appointment as manager of the school amounted neither to an office nor to an office of profit nor to an office of profit under the Government.
A decision favorable to the appellant on the last question, i.e., office of profit under the Government, would render the decision of the other two questions wholly unnecessary and therefore assuming that the appellant held an office of profit, the question remains: was it an office of profit under the Government and therefore fell within article 102 (1)(a) of the Constitution.
In order to determine this we have to examine the provisions of the Statute under which the appointing authority came into existence and its powers under the statute.
Before and up to 1936 the Durgah Khwaja Saheb Endowment was administered by a committee which was constituted by the Chief Commissioner of Ajmer under section 7 of the Religious Endowments Act (XX of 1863).
In 1936 the then Central Legislature enacted the Durgah Khwaja Saheb Act (XXIII of 1936).
By the provisions of that Act the management and administration was vested in Durgah Committee constituted under section 4 of the Act.
It was a body corporate with perpetual succession and common seal having the right to sue and be sued in the 392 name of the president of the Committee.
Under section 5 which dealt with the constitution of the Committee it was to consist of 25 members some of whom were elected and some nominated.
Section 11(f) of the Act gave to the Committee the power to appoint all its servants.
The Act of 1936 was replaced by the Durgah Khwaja Saheb (Emergency Provisions) Ordinance 3 of 1949, which in turn was replaced by the Durgah Khwaja Saheb (Emergency Provisions) Act (XV11 of 1950).
By section 3 of that Act the Durgah Committee constituted under the Act of 1936 was superseded and the management was vested in an Administrator appointed by the Central Government who under section 7 was to be under the control of the Central Government and had all the powers of the committee constituted under the Act of 1936.
That Act continued to be in force up to February 29, 1956, and it was during its continuance that the appellant filed two nomination papers on February 28, 1956, which were rejected by the Returning Officer.
The Act of 1950 was replaced by the Durgah Khwaja Saheb Act (XXXVI of 1955) which, received the assent of the President on October 14, 1955, but came into force oil March 1, 1956.
Under section 4(1) of this Act the administration, control and management of the Durgah Endowment came to be vested in a Committee, which is a body corporate having perpetual succession and common seal and which can sue and be sued through its President.
Under section 5 the Committee is to consist of not less than 5 and not more than 9 members.
of the Hanafi Muslim faith all of whom are to be appointed by the Central Government.
Section 8 gives power to the Central Government to supersede the Committee.
Under section 9 the Central Government in consultation with the Committee can appoint a Nazim (administrator) of the Durgah who is an ex officio secretary of the committee.
His salary is to be fixed by the Central Government but is to be paid out of the revenues of the Durgah Endowment funds.
The Committee exercises its power of administration, control and management through the Nazim, 393 The powers and duties of the Committee are given in section 11 of the Act; clause (i) of this section which is relevant for the purpose of this case when quoted runs as under: s.11 " The powers and duties of the Committee shall be (i) to appoint, suspend or dismiss servants of the Durgah Endowment.
" Under section 20 the Committee has the power to make bye laws to carry out the purposes of the Act, and the respondent emphasised clause (1) of sub section 2 which provides: section 20 (2) " In particular and without prejudice to the generality of the foregoing power such bye laws may provide for (i) the duties and powers of the employees of the Durgah.
" Sub section 5 of this section is as follows: " (5) The Central Government may, after previous publication of its intention, cancel any bye law which it has approved and confirmed, and thereupon the bye law shall cease to have effect.
" The respondent contended that because under the Act of 1955, the Committee of Management is to be appointed by the Government who also appoint the Nazim (administrator) through whom the Committee acts and because under section 6(2) the Government has the power of removal from office of any member of the Committee and because the Committee can make bylaws prescribing the duties and powers of the employees of the Durgah, the appellant was under the control and supervision of the Central Government and therefore he was holding an office of profit under the Government of India.
It is significant to note that in laying down the disqualifications of the President and the Vice President the Constitution has expressly provided the disqualifications which include not only an office of profit under the Government of India or 394 the Government of any State but also an office of profit under any local or other authority subject to the control of any of the said Governments.
This last disqualification the Constitution does not make applicable to the members of the legislatures.
No doubt the Committee of the Durgah Endowment is to be appointed by the Government of India but it is a body corporate with perpetual succession acting within the four corners of the Act.
Merely because the Committee or the members of the Committee are removeable by the Government of India or the Committee can make bye laws prescribing the duties and powers of its employees cannot in our opinion convert the servants of the Committee into holders of office of profit under the Government of India.
The appellant is neither appointed by the Government of India nor is removeable by the Government of India nor is he paid out of the revenues of India.
The power of the Government to appoint a person to an office of profit or to continue him in that office or revoke his appointment at their discretion and payment from out of Government revenues are important factors in determining whether that person is holding an office of profit under the Government though payment from a source other than Government revenue is not always a decisive factor.
But the appointment of the appellant does not come within this test.
A number of election cases reported in the Election Law Reports were cited before us but they were decided on their own facts and are of little assistance in the decision of the present case.
The test of the power of dismissal by the Government or by an officer to whom such power has been delegated which was pressed in support of his case by the respondent is equally inapplicable to the facts of the present case because the appellant cannot be dismissed by the Government or by a person so authorised by the Government.
He is a servant of a statutory body which in the matter of its servants acts within the powers conferred upon it by the statute.
The respondent then sought to fortify his sub.
missions by relying on Shivnandan Sharma vs The, 395 Punjab National Bank Ltd. (1).
That was a case under the Industrial Disputes Act and the question for decision was whether a cashier appointed by the Bank 's treasurer on behalf of the Bank and paid by the Bank was a servant of the Bank.
It was held that he was.
The rule of that case is that if the master employs a servant and authorises him to employ a number of persons to do a particular job and to guarantee their fidelity and efficiency for cash consideration, the employees thus appointed by the servant would be, equally with the servant,, servants of the master.
But that again has no application to the facts of the present case because the appellant has not been employed by a servant of the Government who is authorised to employ servants for doing some service for the Government nor is he paid out of Indian revenues.
No doubt the non payment from out of the revenues of the Union is not always a factor of any consequence but it is of some importance in the circumstances of this case.
A comparison of the different articles of the Constitution 58(2), 66(4), 102 (1)(a) and 19 1 (1)(a) dealing with membership of the State Legislatures shows in the case of members of the Legislatures unlike the case of the President and the Vice President of the Union the disqualification arises on account of holding an office of profit under the Government of India or the Governments of the States but not if such officer is under a local or any other authority under the control of these Governments.
As we have said the power of appointment and dismissal by the Government or control exercised by the Government is an important consideration which determines in favour of the person holding an office of profit under the Government, but the fact that he is not paid from out of the State revenues is by itself a neutral factor.
It has not been shown that the appellant 's appointment as a mohatmin (manager) of the school satisfies any of the tests which have been discussed above.
On the other hand on March 1, 1956, he was holding (1) ; 51 396 his appointment under a Committee which is a statutory body and such appointment cannot be called an appointment by or under the control of the Government of India nor is his salary paid out of the revenues of the Government but out of the funds of Durgah Endowment.
In the circumstances the majority of the Tribunal has erred in holding that the appellant held an office of profit under the Government and the opinion of the Chairman to the contrary lays down the correct position.
In view of this finding in regard to the office of profit under the Government, it is not necessary to go into the question whether there were any " thrown away " votes or whether the respondent has been rightly declared to have been elected.
We are of the opinion that the election of the appellant has been wrongly set aside and we would allow the appeal and set aside the order of the majority of the Tribunal.
The appellant will have his costs in this court as also before the Tribunal.
Appeal allowed.

dataset_name: IN-Abs

summary/full:
The appellant was the manager of a school run by a committee of management formed under the provisions of the Durgah Khwaja Saheb Act, 1955.
He was appointed by the administrator of Durgah Khwaja Saheb and was being paid Rs. 100 per month.
He was elected to the Council of States by the Electoral College of Ajmer and the unsuccessful candidate, the first respondent, challenged the election on the ground that the appellant wag holding an office of profit under the Government at the time of the election and was, therefore, disqualified to be chosen as a member of Parliament in view of article 102(1) (a) of the Constitution of India.
It was contended for the first respondent inter alia that as under sections 5 and 9 of the Act the Government of India had the power of appointment and removal of members of the committee of management as also the power to appoint the administrator in consultation with the committee, the appellant was under the control and supervision of the Government and that therefore he was holding an office of profit under the Government of India.
But the appellant was neither appointed by the Government of India nor removable by it nor was his salary fixed by the Government and it was paid out of the funds of the Durgah Endowment.
Held, that the appellant was holding his appointment under a committee which was a statutory body and could not be considered as the holder of an office of profit under the Government of India within the meaning of article 102(1) (a) of the Constitution of India.
Accordingly, the election of the appellant was valid.
Shivnandan Sharma vs The Punjab National Bank Ltd., ; , distinguished.


judgement:
ivil Appeal No. 3947 of 1986 From the Judgment and Order dated 30.8.1982 of the Allahabad High Court in Civil Misc.
Writ Petition No. 5105 of 1982.
Pramod Swarup, R. Singh Rana and Ashok K. Srivastava for the Appellant.
G.N. Dixit, M.K. Dua, Aman Vachher and S.K. Mehta for the Respondents.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
Smt.
Amna Begum was a resident of Rehpura Village, Tehsil Kichha, District Nainital in the State of Uttar Pradesh.
She owned a fairly large extent of agricultural land.
On 8.6.1973 the Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act, 1972 came into force.
Section 5 of the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as 'the Act ') provided that on and from the commencement of the Uttar Pradesh Imposition of Ceiling on Land Holdings (Amend ment) Act, 1972 no tenure holder would be entitled to hold in the aggregate throughout Uttar Pradesh, any land in excess of the ceiling area applicable in him or her.
The expression 'ceiling area ' is defined in sub section (2) of section 3 of the Act as the area of land not being exempted under the Act, determined as such in accordance with the provisions of section 5 thereof Since Smt.
Arena Begum, the tenure holder, was holding in the aggregate in the State of Uttar Pradesh land in excess of the ceiling area applicable to her, she became liable to surrender the surplus land, i.e., the land held by her in excess of the ceiling area.
applicable to her, in favour of the Government under the Act.
A general notice was issued under section 9 of the Act to all tenure holders holding land in excess of the ceiling area for submission of statements in respect thereof.
She did not file any statement before the Prescribed Authority as provided by section 9 of the Act.
After the publication of the said general notice but before she could be served with a notice under section 10(2) of the Act to submit her statement, Smt.
Arena Begum died.
The Prescribed Authority 103 who had no knowledge of the.
death of Smt.
Amna Begum, however, issued a notice addressed to her under section 10(2) of the Act calling upon her to show cause within the period specified in the notice why the statement prepared by him under section 10(1) of the Act should not be taken as correct.
The said notice could not, no doubt, be served on her, but one Fazai Ahmad, the father of Shams Ahmad re spondent No. 4, who was one of the heirs of Smt.
Amna Begum filed objections before the Prescribed Authority to the notice issued under section 10(2) of the Act.
The Prescribed Authority overruled the said objections and declared that Smt.
Amna Begum was holding 17.37 hectares of land as sur plus land by his order dated November 29, 1975.
Aggrieved by that order Fazal Ahmad, since deceased, and Shams Ahmad, son of Fazal Ahmad filed on appeal in Ceiling Appeal No. 541 of 1975 before the District Judge, Nainital.
That appeal was allowed on February 14, 1977.
The order against which the appeal had been filed was set aside and the case was remand ed to the Prescribed Authority to issue fresh notice to the tenure holders concerned, if necessary.
The reason given in the order passed by the District Judge, Nainital for allow ing the appeal was that the tenure holder, Smt.
Amna Begum was dead by the time the notice under section 10(2) of the Act was issued and the order of the Prescribed Authority passed against a dead person could not be allowed to stand.
The learned District Judge did not record any other finding on the merits of the case.
After remand the case was en quired into by the Prescribed Authority.
In that proceeding fresh notices under section 10(2) of the Act was issued to the heirs of Smt.
Amna Begum.
Sharifan Begum.
respond ent No. 3, one of the heirs of Smt.
Amna Begum appeared before the Prescribed Authority and contended inter alia that she held only 91.12 bighas of land in village Rehpura, as her one fourth share in the estate of Smt.
Amna Begum along with the other heirs of Smt.
Amna Begum.
She also pleaded that 12 acres of land had been transferred in favour of Daulat Ram and Prem Nath through registered sale deed for adequate consideration, the transfer was in good faith and, therefore, the said extent of land should be excluded from the holding while determining the surplus land.
She further contended that the determination of the surplus land should be made on the basis of the share held by each of the heirs of Smt.
Amna Begum treating each of them as an individual tenure holder entitled to land equal to one ceiling area in the estate of Smt.
Amna Begum as she had died prior to the service of the notice.
The Prescribed Authority accepted the contentions urged on behalf of the heirs of Smt.
Amna Begum and found that there was no surplus land that could be claimed from the holding in question since none of the heirs of Smt.
Amna 104 Begum was in possession of the land in excess of the ceiling area.
Against the order of the Prescribed Authority, the State Government filed an appeal before the Civil Judge, Nainital in Civil Appeal No. 32 of 1981.
The learned Civil Judge dismissed the appeal holding that Smt.
Amna Begum could not be treated as a tenure holder after her death and that after her death each of the heirs of Smt.
Amna Begum should be treated as an independent tenure holder entitled to one unit of ceiling area for purposes of determination of the surplus land.
He agreed with the Prescribed Authority that since none of the heirs of Smt.
Amna Begum was holding the land in excess of the ceiling area, they were not liable to surrender any surplus land.
The learned Civil Judge also held that the contention urged on behalf of the State Gov ernment that Smt.
Amna Begum who was alive on 8.6.1973 which was the relevant date for determining the surplus land should be treated as the tenure holder could not be main tained because the said contention was barred by res judica ta on account of the decision of the District Judge, Naini tal in Ceiling Appeal No. 541 of 1975, under which the case had been remanded earlier to the Prescribed Authority for fresh disposal.
The appeal filed by the State Government was, therefore, dismissed.
Aggrieved by the decision of the learned Civil Judge, Nainital, the State Government filed a writ petition before the High Court.
That writ petition was dismissed by the learned Judge, who heard it by his order dated August 30, 1982.
The only reason given by the learned Judge, who heard the writ petition, for dismissing it was that the State Government was not entitled to question the correctness of the orders of the Prescribed Authority and the Civil Judge as the order of remand of the case passed by the District Judge had become final and the contentions of the State Government were barred by the rule of res judica ta.
This appeal by special leave is filed against the order of the High Court dismissing the writ petition.
At the outset it should be stated that the reason given by the High Court for holding that the contentions urged on behalf of the State Government were barred by the rule of res judicata is wholly untenable since the learned District Judge, who disposed of the appeal on 14.2.1977 had not recorded any finding on the merits of the contentions of the parties.
He had set aside the order of the Prescribed Au thority passed earlier only on the ground that a proceeding which had been commenced against a dead person was a nulli ty.
He, however, remanded the case to the Prescribed Author ity for fresh disposal in accordance with law after issuing notices to the heirs of Smt.
Amna Begum whom he wrongly described as tenure holders solar as the estate of Smt.
Amna Begum was concerned.
The High Court was, 105 therefore, wrong in dismissing the writ petition on that ground.
As regards the contention urged on behalf of re spondent Nos. 3 to 5 Smt.
Sharifan Begum, Shams Ahmad and Smt.
Ahmadi Begum who were the heirs of Smt.
Amna Begum, namely, that for purposes of computation of the surplus land in their hands the relevant date that should be taken into consideration is the date on which such computation was made and not the date on which the ceiling was imposed by section 5 of the Act it has to be stated that the orders of the Prescribed Authority and the Civil Judge passed after the order of remand are wholly erroneous.
Arena Begum was alive on 8.6.1973 on which date the ceiling on the holdings in the State of Uttar Pradesh was imposed by section 5 of the Act.
Amna Begum became liable to surrender the surplus land in her hands in excess of what she could retain in accordance with that section.
Merely because she had died before the issue of the notice under section 10(2) of the Act her liability to surrender the surplus land would not come to an end.
Rule 19 of the Uttar Pradesh Imposition of Ceiling on Land Holdings Rules, 1961 flamed under the Act provides that where a tenure holder dies before the publication of the general notice under section 9 of the Act, such publication shall be deemed to apply to the executor, administrator or other legal representatives and the Prescribed Authority may proceed to determine the ceiling area applicable to the deceased person as if such executor, administrator, or other legal represen tatives were the tenure holder.
It also provides that where a tenure holder dies before he is served with a notice under sub section (2) of section 10 of the Act, the Prescribed Authority may serve such notice on his executor, administra tor or other legal representatives and may proceed to deter mine the ceiling area applicable to the deceased person as if such executor, administrator, or other legal representa tives were the tenure holder.
The principle applicable to the determination of the surplus land under the land reform laws in the hands of persons holding land on the date on which the ceiling is imposed is explained by this Court in Raghunath Laxman Wani vs State of Maharashtra, at page 397, thus: "The scheme of the Act seems to be to deter mine the ceiling area of each person (includ ing a family) with reference to the appointed day The policy of the Act appears to be that on and after the appointed day no person in the State should be permitted to hold any land in excess of the ceiling 106 area as determined under the Act and that ceiling area would be that which is determined as on the appointed day.
Therefore, if there is a family consisting of persons exceeding five in number on January 26, 1962, the ceil ing area for that family would be the basic ceiling area plus 1/6th thereof per member in excess of the number five.
The ceiling area so fixed would not be laible to fluctuations with the subsequent increase or decrease in the number of its members, for, there is, apart from the explicit language of sections 3 and 4, no provision in the Act providing for the redetermination of the ceiling area of a family on variations in the number of its members.
The argument that every addition or reduction in the number of the members of a family requires redetermination of the ceiling area of such a family would mean an almost perpetual fixation and refixation in the ceiling area by the Revenue authorities, a state of affairs hardly to have been contem plated by the legislature.
" The principle enunciated in the above decision has been followed by this Court in Bhikoba Shankar Dhumal (dead) by Lrs.
and Others vs Mohan Lal Punchand Tatbed and Others.
, ; In that case it was held that the surplus land in the case of a person who held land in excess of the ceiling area on the appointed day had to be deter mined as on the appointed day even though such person might have died before the actual extent of surplus land was determined and notified.
It was further held that the per sons on whom his holding devolved on his death would be liable to surrender the surplus land as on the appointed day because the liability attached to the holding of the de ceased would not come to an end on his death.
Although the above decisions are rendered in cases arising under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 the principle set out therein applies to all cases where there is an imposition of ceiling on lands held bY land holders by land ceiling laws with effect from a specified date.
In fact rule 19 of the Rules framed under the Act which is referred to above also leads to the same view.
Whatever surplus land was liable to be surrendered by a tenure holder has to be determined as on 8.6.1973 and taken possession under the Act even though the tenure holder might have died after 8.6.1973 and before such ascertain ment.
We, therefore, do not agree with the view of the Prescribed 107 Authority and the Civil Judge that for purposes of determin ing the surplus land the share of land in the hands of each of the heirs of Smt.
Amna Begum should be treated as a separate unit for determining the surplus land.
We hold that for purposes of deciding the surplus land which is liable to be surendered from out of the estate of Smt.
Amna Begum, the relevant date that should be taken into account is 8.6.1973 on which date the ceiling on holdings was imposed and Smt.
Arena Begum became liable to surrender the surplus land in accordance with the provisions of the Act.
The heirs or legal representatives of Smt.
Amna Begum together are enti tled to retain out of the estate of Smt.
Amna Begum only an extent of land equal to the area which Smt.
Arena Begum could have retained in her hands after the imposition of ceiling on land holdings and are liable to surrender the surplus land.
The High Court failed to consider this aspect of the question when it disposed of the writ petition.
We, therefore, set aside the orders passed by the High Court, by the Civil Judge on 4.12.1981 and by the Prescribed Authority on 16.1.1981 and remand the case to the Prescribed Authority for fresh disposal in accordance with law and in the light of this judgment.
All other questions are left open.
This appeal is accordingly allowed will be no order as to costs.
A.P.J. Appeal al lowed.

summary/full:
Section 5 of the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960 provided that on and from the com mencement of the U.P. Imposition of Ceiling on Land Holdings (Amendment) Act, 1972, which came into force on 8.6.1973, no tenure holder would he entitled to hold in the aggregate throughout Uttar Pradesh, any land in excess of the 'ceiling area ', as defined in Sub s.(2) ors.3 of the Act.
Since Smt.
Anma Begum, the tenure holder was holding in the aggregate land in excess of the ceiling area, she became liable to surrender the surplus land.
Pursuant to a general notice issued under s.9 to all tenure Imlders, holding land in excess of the ceiling area, she did not file any state ment before the Prescribed Authority After the publication of the general notice but before she could he served with a notice under s.10(2) she died.
The Prescribed Authority not knowing of her death issued a notice under s.10(2) calling upon her to show cause why the statement prepared by him under section 10(1) should not he taken as correct.
The father of respondent No. 4, one of the .heirs, filed objections which were over ruled, and it was declared that Smt.
Arena Begum was holding 17.37 hectares of land as surplus land.
The District Judge holding that since the tenure holder was dead by the time the notice under section 10(2) was issued, the order of the Prescribed Authority passed against a dead person could not be allowed to stand, allowed the appeal, set aside the order of the Prescribed Authority and remanded the case.
Fresh notices under s.10(2) were issued to the heirs.
Respondent No. 3 contended that she held only 91.12 bighas of land as her onefourth share and that 12 acres of land had been transferred through registered sale deed far adequate consideration and in good faith and 100 the land to that extent should be excluded from the holding while determining the surplus land and that the determina tion of the surplus land should be made on the basis of the share held by each of them as an individual tenure holder.
The Prescribed Authority held that there was no surplus land that could be claimed from the holding in question since none of the heirs of deceased tenure holder was in possession of the land in excess of the ceiling area.
The appeal by the State Government against the order of the Prescribed Authority was dismissed by the Civil Judge holding that Smt.
Anma Begum could not be treated as a tenure holder after her death, and that since none of the heirs of Amna Begum was holding the land in excess of the ceiling area they were not liable to surrender any surplus land.
The petition under Article 226 filed by the State Gov ernment was dismissed holding that the State Government was not entitled to question the correctness of the orders of the Prescribed Authority and the Civil Judge as the order of remand of the case passed by the District Judge had become final.
Allowing the Appeal, HELD: 1.
The orders passed by the High Court, the Civil Judge and the Prescribed Authority are set aside and the case is remanded to the Prescribed Authority for fresh disposal.
[107D] 2.
The reason given by the High Court for holding that the contentions urged on behalf of the State Government were barred by the rule of res judicata is wholly untenable since the District Judge while remanding the case had nut recorded any finding on the merits of the contentions of the parties.
He had set aside the order of the Prescribed Authority passed earlier only on the ground that a proceeding which had been commenced against a dead person was a nullity.
He, however, remanded the case to the Prescribed Authority for fresh disposal in accordance with law after issuing notices to the heirs of Smt.
Amna Begum whom he wrongly described as tenure holders so far as her estate was concerned.
The High Court was, therefore, wrong in dismissing the writ petition on that ground.
[104D 105A] 3. Smt.
Amna Begum was alive on 8.6.1973 on which date ceiling 101 on the holdings in the State of Uttar Pradesh was imposed by s.5 of the Act.
Amna Begum became liable to surrender the surplus land in excess of what she could retain in accordance with that section.
Merely because she had died before the issue of the notice under s.10(2) of the Act the liability to surrender the surplus land would not come to an end.
[105C] 4.
Rule 19 of the Uttar Pradesh Imposition of Ceiling on Land Holdings Rules, 1961 framed under the Act provides that where a tenure holder dies before the publication of the general notice under s.9 of the Act, such publication shah be deemed to apply to the executor, administrator or other legal representatives and the Prescribed Authority may proceed to determine the ceiling area applicable to the deceased person as if such executor administrator of other legal representatives were the tenure holder It also pro vides that where a tenure holder dies before he is served with a notice under sub section
(2) of section 10 of the Act, the Prescribed Authority may serve such notice on his executor, administrator or other legal representatives and may proceed to determine the ceiling area applicable to the deceased person as if such executor, administrator or other legal representatives were the tenureholders.
[105D F] 5.
The principle applicable to the determination of the surplus land under the land reform laws in the hands of person holding land is the date on which the ceiling is imposed.
[105G] 6. 'The surplus land in the case of a person who held land in excess of the ceiling area on the appointed day had to he determined as an the appointed day even though such person might have died before the actual extent of surplus land was determined ,tad notified.
The persons on whom his holding devolved on his death would be liable to surrender the surplus land as on the appointed day because the liabil ity attached to the holding of the deceased would not come to an end on his death.
[I06E F] Raghunath Laxman Wani vs
State of Maharashtra, at page 397 & Bhikoba Shankar Dhumal (dead) by Lrs.
and Others vs Mohan Lal Punchand Tathed and Others, [1982] 1 S.C.C680, followed.
For the purpose of deciding the surplus land which is liable to be surrendered from and out of the estate of Smt.
Arena Begum, the relevant date that might be taken into account is 8.6.1973 on which date the ceiling on holdings was imposed and she became liable to surrender the surplus land.
Her hews or legal representatives together are enti tled 102 to retain out of her estate only an extent of land equal to the area which she could have retained in her hands after the imposition of ceiling on land holdings and are liable to surrender the surplus land.
[107B C]


judgement:
vil Appeal Nos. 395 and 1346 (N) of 1973 From the Judgment and Order dated 13.12.1971 of the Andhra Pradesh High Court in A.A.O. No. 279 and 2 16 of 1970.
Vepa P. Sarthy, B. Parthasarthi and G.N. Rao for the Appellant.
V.S. Desai, Naunit Lal and Kailash Vasdev for the Respond ent.
The Judgment of the Court was delivered by THAKKAR, J.
Believe it or not, the most incongruous arguments can sometimes find a suiter.
Were it not so, the High Court of Andhra Pradesh could not have taken the view that occupation or user of lands and buildings for the purpose of running horse races, and for training the horses etc.
constitutes occupation or user of the property for a 'charitable ' purpose.
The High Court has taken the said view, an impossible view in our opinion, in the context of the exemption from levy of municipal taxes claimed by the Race Course Club (respondent herein) in respect of 127 acres, 14 goonthas and 95 sq.
yards of land alongwith structures 197 standing thereon, which were sought to be assessed to gener al tax under Section 202 of the Hyderabad Municipal Corpora tion Act (Act in short).
The respondent boldly contended, and strangely enough succeeded in convincing the High Court, that Section 202(1)(b) of the Act was attracted as occupa tion and user of the property for running horse races and training of horses etc.
constituted occupation and user of the property for a 'charitable purpose ' within the meaning of the said provision.
Now, Section 202(1)(b) of the Act is in these terms: "202(1) The general tax shall be levied in respect of all buildings and lands in the city except (a) xxxx (b) buildings and lands or portions thereof solely occupied and used for public worship or for a charitable or educational purpose; (c) xxxx (d) xxxx" The High Court launched upon an exercise to ascertain whether the income of the Race Club was used for a charita ble purpose.
And on perceiving that some of the purposes for which the income was to be employed were charitable purposes concluded that the exemption under Section 202(1)(b) was available.
The test to apply is to seek an answer to the question: to what use is the property put or for what pur pose is the property put.
And to ascertain whether such occupation or user is for a 'charitable ' purpose.
In the present case the occupation and user is to conduct horse races and to train horses for racing.
Unless it can be posited that conducting of horse races is a charitable purpose, it cannot be concluded that the exemption envi sioned by Section 202(1)(b) is attracted.
And even if one were to take the most 'charitable ' view as regards the meaning and content of the expression 'charitable ' conduct ing of horse races or training of horses for the races cannot be said to be a charitable activity.
The expression charitable in the context of Section 202(1)(b) means a benevolent activity calculated to benefit the poor or the deprived.
Surely horse racing is not such a benevolent activity, however charitable a view one takes.
It has also to be emphasized that it must be the very activity which is carried on on 198 the property which must be charitable and not the applica tion of the income of such activity.
What the High Court has completely failed to realize is that the 'occupation ' of the land and buildings or the 'user ' of the land and buildings must be for a 'charitable purpose ' and that it is altogether irrelevant as to the manner in which the income of the club is utilised.
Section 202(1)(b) makes no reference to the question as regards the employment of the income of the club or the purpose for which the income is so employed.
Exemption is granted only in respect of buildings which are 'solely ' used, meaning thereby exclusively used, for charitable purpose.
For in stance, if the premises are occupied for the purposes of benevolent activities such as the running of a free dispen sary or :clinic or for running of a free school for the children, such user of the building would constitute a user for a charitable purpose and entitle the owner of the build ing to claim exemption.
It is impossible to subscribe to the view that occupation or user for 'any ' purpose would consti tute a user for a charitable purpose provided the income is used for a charitable purpose.
Clutching at the tail of this reasoning, one would be induced to the conclusion that user of a building for running a common gaming house (or for any immoral or illegal purpose) would be user for a 'charitable ' purpose provided the income of the common gaming house is utilised for a charitable purpose.
The argument deserves no further scrutiny and must be rejected outright.
No further exercise need be undertaken in order to find out whether or not Section 202(1)(b) is attracted in the facts of the present matter.
The judgment of the High Court in so far as the High Court holds that Section 202(1)(b) is attracted must therefore be reversed and set aside.
We are of the opinion that the user of the premises for the Race Course Club will not constitute occupation or user for a charitable purpose within the meaning of Section 202(1)(b) and the Race Course Club will not be entitled to claim exemption from levy of general tax.
Two other questions have been agitated by the Appellant Municipal Corporation.
First, whether the general tax could have been lawfully levied for the assessment year 1966 67.
The High Court has rightly taken a view adverse to the appellant on an appreciation of evidence.
We do not see any fallacy in the reasoning of the High Court.
We therefore do not propose to disturb the finding recorded by the High Court in so far as this question is concerned.
Secondly, as regards the valuation of the property.
The learned Judge of the Small Causes Court has valued the property at Rs.4 lakhs.
The valuation made by the Small Causes Court has been confirmed by the High 199 Court.
We see no reason to interfere with the valuation as made by the Small Causes Court and confirmed by the High Court.
Accordingly, in so far as these two points are con cerned, the decision rendered by the High Court must be confirmed.
The appeals are therefore partly allowed to the afore said extent.
The order passed by the High Court in so far as it is held that the property is exempt from levy of general tax under Section 202(1)(b) is ' set aside.
The appellant would be entitled to levy general tax from 1967 68 onwards in accordance with law.
The appeals are partly allowed to this extent.
There will be no order as to costs.
A.P.J. Appeals allowed.

summary/full:
The appellant Corporation sought to assess the land and buildings of the respondent club to genera1 tax under section 202 of the Hyderabad Municipal Corporation Act, 1955.
The re spondent claimed exemption on the ground that occupation and user of the property for running horse races and training the horses etc.
constituted occupation and user of the property for a 'charitable purpose ' within the meaning of section 202(1)(b), which was refused.
The respondent approached the High Court and succeeded.
Partly allowing the appeal by the Corporation, HELD: 1.
For determining whether exemption under section 202(1) (b) of the Hyderabad Municipal Corporation Act, 1955, was available, the test to apply is to seek answer to the question: to what use is the property put or for what pur pose is the property pat and to ascertain whether such occupation or user is for 'charitable purpose '.
[197F] 2.
The expression 'charitable ' in the context of section 202(1)(b) means a benevolent activity calculated to benefit the poor or, the deprived.
Horse racing is surely not such a benevolent activity, however charitable a view is taken.
It must be the very activity which is carried on the property which must be charitable and not the application of the income of such activity.
[197H 198A] 3.
The High Court has completely failed to realize that the 'occupation ' of the land and buildings or the 'user ' must be for 'charitable purpose ' and that it is altogether irrelevant as to the manner in which the income of the club is utilised.
Section 202(1)(b) makes no reference to the question as regards the employment of the income of the club or the purpose for which the income is so employed.
Exemp tion is granted 196 only in respect of buildings which are 'solely ' and exclu sively used for charitable purpose.
[198B] 4.
In the instant case, the user of the premises for the Race Course Club will not constitute occupation or user for a 'charitable purpose ' within the meaning of section 202(1)(b) and of Race Course Club will not be entitled to claim exemp tion from levy of the general tax.
[198F] 5.
The High Court has rightly taken a view adverse to the appellant as regards the levy for the assessment year 1966 67, on an appreciation of evidence and there is no warrant to disturb the said finding.
There is also no reason to interfere with the valuation of the property as made by the Small Causes Court and confirmed by the High Court.
[198G H] 6.
The order passed by the High Court in so far as it is held that the property is exempt from levy of general tax under section 202(1)(b) is set aside.
The appellant would be entitled to levy general tax from 1967 68 onwards in accord ance with law.
[199B]


judgement:
(Crl.) No. 270 of 1986 Under Article 32 of the Constitution of India.
178 Mrs. K. Hingorani for the Petitioner.
Kapil Sibal, Karanjawala, Mrs. Karanjawala and C.V. Subba Rao for the Respondents.
The Judgment of the Court was delivered by BALAKRISHNA ERADI, J.
Immediately on conclusion of the hearing of arguments in the above Writ Petition on June 11, 1986, having regard to the urgency of the matter, we passed the following order: "We allow the Writ Petition and direct that the minor boy, Dustan be restored forthwith to the custody of the petitioner i.e. the mother with liberty to the petitioner to take him to the United States.
The child will be a ward of the concerned Court in Michigan and it will be open to the father, first respondent herein to move that Court for a review of the custody of the child, if he is so advised.
Detailed reasons will follow.
The passport of the child which is in deposit with the Registrar of this Court will be returned to the petitioner i.e. the mother of the child today itself.
The concerned authori ties of the Govt.
of India will afford all facilities to the mother to take the child back to the United States pursuant to the order passed by this Court.
" We now proceed to state in this judgment our reasons in support of the order.
The petitioner, Mrs. Elizabeth Dinshaw is a citizen of the United States of America residing in the State of Michi gan.
She is employed as a case worker for the State of Michigan in Genesee County Department of Social Services, Flint Michigan.
The first respondent, Mr. Arvand M. Dinshaw, who is an Indian citizen was a student at Northern Michigan University in 1971.
During that period the petitioner was also studying there.
What started as a friendship between them on the campus later developed into love and the peti tioner was married to the first respondent in a civil mar riage before a legal magistrate in Negaunee, Michigan on February 26, 1972.
The first respondent thereafter settled down in the United States more or less on a permanent basis having secured employment as an Accountant for the Control ler 's Office in Genesee County.
and having obtained a perma nent 179 immigration Visa.
A male child, Dustan, was born to the couple on August 30, 1978 in Rochester, Michigan, United States of America where they were having their marital home.
Unfortunately, differences arose between the two spouses late in the year 1980 and on December 23, 1980, the peti tioner along with her son took up separate residence in a women 's shelter in Saginaw, Michigan.
She filed a petition for divorce on January 2, 1981 in the Circuit Court for the County of Saginaw, Michigan.
By a decree dated April 23, 1982, the Circuit Court held that it had been established that there had been a breakdown in the marriage relationship to the extent that the objects of matrimony had been de stroyed and there remained no reasonable likelihood that the marriage could be preserved and hence it declared the mar riage as dissolved and granted a divorce to the petitioner as prayed for.
By the same decree, it was directed that the petitioner shall have the care, custody and control of the minor child of the parties until he reaches the age of 18 years or until the further orders of that Court.
The first respondent, the father was given visitation rights by the decree and it was provided that he shall 'have visitation with the minor child from approximately 5 P.M. to 8 P.M. on the Wednesday of every week during which he does not have a weekend visitation.
It was further ordered that the father shall have visitation with the minor child on alternate weekends from 5 P.M. on Friday until the following Monday morning when he should return the child to his day care centre.
On the subject of travel with the minor child to any place outside the United States, it was specifically direct ed in the decree as follows: "IT IS FURTHER ORDERED AND ADJUDGED THAT should the Defendant ARVAND M. DINSHAW.
wish to travel with the minor child outside the territorial limits of the United States.
he shall bring a petition before this Court.
setting forth the conditions under which he intends to leave the country with the minor child.
The court shall then make a determina tion as to whether such travel is in the best interests of the minor child.
and what condi tions shall be set forth to ensure the child 's return.
" Taking advantage of the weekend visitation rights grant ed to him by the above decree, the first respondent picked up Dustan from his school on January 10, 1986 and secretly left the United States of America for India on January 11, 1986.
at about 8.30 in the night.
He 180 had not intimated the Court about his intention to take the child out of its jurisdiction and outside country nor had he given the slightest indication to the petitioner about.his intention to leave the United States of America permanently for India.
It may be stated that immediately before leaving for India, the first respondent had sold away the immovable property consisting of a house and its premises owned by him in Seymour, Lindan, Michigan, where he had been residing and it was only from the Airport that he posted a letter tender ing his resigation from his job as Accountant in the Coun try.
In this context it is significant to recall that the decree of the Circuit Court contained the following direc tions: .
"IT IS FURTHER ORDERED AND ADJUDGED that the Defendant shall notify the Office of the Friend of the Court promptly concerning any changes in his address.
The Court further finds that the Defendant is presently residing at 14155 Seymour, Lindan, Michigan.
" It was only late in the day on Monday, January 13., 1986 that the petitioner came to know that the minor child, Dustan had not been returned to the day care centre by the first respondent.
She immediately moved the Michigan Circuit Court complaining against the violation by the first re spondent of the terms of its decree.
A warrant of arrest was issued by the Michigan Circuit Court against the first respondent on January 16, 1986 on the ground of unlawful taking and retaining the child outside the State.
This was later followed by the issue of a Federal warrant of arrest against the first respondent on the January 28, 1986 on the ground of unlawful flight to avoid prosecution.
Since the first respondent had already come over to India with the minor child, these warrants could not be executed in .the
United States.
The first respondent has his ancestral home in Pune where his parents are residing.
The petitioner made frantic efforts through American Consulate General at Bombay to trace out the whereabouts of Dustan.
She received a reply that the Consular Officer, American Consulate General, Bombay travelled to Pune on Friday, March 7, 1986 and though she was able to visit the residence of the first respond ent 's parents and she spoke with them, the minor child, Dustan was not present there and the grand parents reported that Dustan and his father had gone North, possible, to Kashmir and that they were not aware of the exact where abouts of Dustan and the first respondent.
The petitioner finding herself totally helpless to recover back the custody of her minor child, whom she had brought up for more than 7 181 years, thereafter arranged to have this petition tiled in this Court seeking the issuance of writ of Habeas Corpus directing the respondents to produce in Court her minor child, Dustan and to handover his custody to her as the person entitled to his custody under the order of a compe tent foreign Court.
In response to the notice issued by this Court directing production of the child before the Court, the first respond ent appeared and produced the child in Court.
He has filed a counter affidavit but significantly there is absolutely no satisfactory explanation given there for his conduct in abducting the child from America without seeking permission of the Court in that country of which the minor child, was ward.
His only explanation is that his father was seriously ill and he wanted that his father in his ailing condition to see Dustan.
He has further stated that his son Dustan has told him on an enquiry that he would prefer to stay with him in Pune and hence he had got Dustan admitted in St. Helena 's School in Standard III.
According to him he had not deliber ately done anything wrong in bringing Dustan with him from the United States and that now the minor child is well settled here in India and it will be in the interest of the child that he should be allowed to reside with him in India as per the child 's desire.
The conduct of the first respondent in taking the child from the custody of the person to whom it had been entrusted by the Court was undoubtedly most repprehensible.
The expla nation sought to be given by him namely, his father 's ill ness, is far from convincing and does not in any way justify such gross violation and contempt of the order of the Cir cuit Court in Michigan.
Whenever a question arises before Court pertaining to the custody of a minor child, the matter is to be decided not on considerations of the legal rights of parties but on the sole and predominant criterion of what would best serve the interest and welfare of the minor.
We have twice inter viewed Dustan in our Chambers and talked with him.
We found him to be too tender in age and totally immature to be able to form any independent opinion of his own as to which parent he should stay with.
The child is an American citi zen.
Excepting for the last few months that have elapsed since his being brought to India by the process of illegal abduction by the father, he has spent the rest of his life in the United States of America and he was doing well in school there.
In our considered opinion it will be in the best interests and welfare of Dustan that he should go back to the United States of America and continue his education there under the custody and guar 182 dianship of the mother to whom such custody and guardianship have been entrusted by a competent Court in that country.
We are also satisfied that the petitioner who is the mother, is full of genuine love and affection for the child and she can be safely trusted to lookafter him, educate him and attend in every possible way to his proper upbringing.
The child has not taken root in this country and he is still accus tomed and acclimatized to the conditions and environments obtaining in the place of his origin in the United States of America.
The child 's presence in India is the result of an illegal act of abduction and the father who is guilty of the said act cannot claim any advantage by stating that he has already put the child to some school in Pune.
The conduct of the father has not been such as to inspire confidence in us that he is a fit and suitable person to be entrusted with the custody and guardianship of the child for the present.
In Re. H. (infants) , the Court of Appeal in England had occasion to consider a somewhat simi lar question.
That case concerned the abduction to England of two minor boys who were American citizens.
The father was a natural born American citizen and the mother, though of Scottish origin, had been resident for 20 years in the United States of America.
They were divorced in 1953 by a decree in Mexico, which embodied provisions entrusting the custody of the two bOys to the mother with liberal access to the father.
By an amendment made in that order in December, 1964, a provisions was incorporated that the boys should reside at all times in the State of New York and should at all times be under the control and jurisdiction of the State of New York.
In March, 1965, the mother removed the boys to England, without having obtained the approval of the New York court, and without having consulted the father; she purchased a house in England with the intention of remaining there permanently and of cutting off all contacts with the father.
She ignored an order made in June, 1965, by the Supreme Court of New York State to return the boys there.
On a motion on notice given by the father in the Chancery Division of the Court in England, the trial ' judge Cross, J. directed that since the children were American children and the American Court was the proper Court to decide the issue of custody, and as it was the duty of courts in all coun tries to see that a parent doing wrong by removing children out of their country did not gain any advantage by his or her wrongdoing, the Court without going into the merits of the question as to where and with whom the children should live, would order that the children should go back to Ameri ca.
In the appeal filed against the said judgment in the Court of Appeal, Willmer 183 L.J. while dismissing the appeal extracted with approval the following passage from the judgment of Cross, J. : "The sudden and unauthorised removal of chil dren from one country to another is far too frequent nowadays, and as it seems to me, it is the duty of all courts in all countries to do all they can to ensure that the wrongdoer does not gain an advantage by his wrongdoing.
The Courts in all countries ought, as I see it, to be careful not:to do anything to 'encourage this tendency.
This substitution of self help for due process of law in this field can only harm the interests of wards general ly, and a judge should, as I see it, pay regard to the orders of the proper foreign Court unless he is satisfied beyond reasonable doubt that to do so would inflict serious harm on the child.
" With respect we are in complete agreement with the aforesaid enunciation of the principles of law to be applied by the Courts in situations such as this.
As already observed by us, quite independently of this consideration we have come to the firm conclusion that it will be in the best interests of the minor child that he should go back with his mother to the :United States of America and continue there as a ward of the concerned Court having jurisdiction in the State of Michigan.
The first respondent has tendered before this Court in an affidavit filed by him an unconditional apology for having illegally brought Dustan over to India from the United States in violation of the order of the competent Court in that coun try.
The proper step to be taken by him is to tender such an apology to the Court whose order he has violated.
It was brought to our notice that by an order passed by the Circuit Court, Saginaw, Michigan on February 11, 1986, the first respondent has been found to be in contempt of that Court for violation of its order and the Court has consequently terminated the visitation rights which had been conferred on the first respondent by the decree dated April 23, 1982.
It will be open to the first respondent, if he is so advised, to move the Saginaw County Circuit Court in the State of Michigan for modification of this order on tendering his unconditional apology to that Court, and if he is able to satisfy that Court that there is genuine 184 contrition and regret on his part for the wrong that he has done, we have no doubt that the Circuit Court will take a lenient view and pass appropriate orders working out justice between the parties keeping in mind the important aspect that it will not be in the interest of the minor child to completely alienate him from his father for whom the child has developed genuine affection.
We have also no doubt that the petitioner will not take a vindictive attitude but would forget and forgive what has happened in the past and cooper ate with the father in the matter of enabling him to have restricted visitation rights in America with all necessary, proper and adequate safeguards and that the petitioner would also extend her cooperation for the withdrawal of the war rants of arrest outstanding against the first respondent in case he approaches her with such a request.
For the reasons stated above, the Writ Petition is disposed of with the directions issued by our order dated June 11, 1986.
A.P.J. Petition disposed of.

summary/full:
The petitioner, a citizen of the United States of America residing Michigan, was married to the first respondent, an Indian citizen, who after marriage settled down in the United States and secured employment.
A male child was born to the couple in America.
Difference arose between them and the petitioner alongwith her son took up separate residence.
She tiled a petition for divorce in the Circuit Court for the country of saginaw, Michigan which granted a decree holding that there had been a breakdown in the marriage relationship and declared tile marriage as dissolved.
The decree also directed that the petitioner slab hove the care,.
custody and control of the minor child until he reaches the age of 18 years.
The first respondent, the father was given visitation rights by the decree.
On the abject of travel with the minor child to any place outside the United States, it was directed that only on a petition the Court shall make a determination as to whether such travel is in the best interest of the minor child, and what conditions shall he set forth to ensure the child 's return.
The Court also directed that the lint respondent shall notify the Office of.
the Friend of the Court promptly concerning any changes in his address.
Taking advantage of the weekend visitation rights grant ed by the said decree, the first respondent picked up the child from his school and secretly left America for India an January 11th, 1986.
He had not intimated the Court about his intention to take the child out of its jurisdiction and outside the country nor had he given the slightest indica tion to the petitioner about his intention to leave America permanently for India.
Immediately before leaving for India, the first respondent sold away his immovable property and it was only from the Airport that he posted a letter tendering his resignation from his Job.
176 Coming to know that the minor child had not been re turned to the day care centre by the first respondent, the petitioner moved the Circuit Court complaining against the violation by the first respondent of the terms of the Court 's decree.
The Court issued a warrant of arrest against the first respondent an the ground of unlawful taking and re taining the child outside the State, followed by the issue of a Federal warrant of arrest on the ground of unlaw ful flight to avoid prosecution.
Since the first respondent had already come over to India with the minor child these warrants could not he executed in the United States.
The Consular Officer, American Consulate General, Bombay, visit ed the residence of the first respondent 's parents in Pune but the minor child was not present there and the grand parents reported that the child and his father had gone North, possibly to Kashmir and that they were not aware of their exact whereabouts.
Thereafter, the petitioner flied a petition in this Court seeking the issuance of a writ of Habeas Corpus directing the respondents to produce in Court her minor child and to hand over custody to her as the person entitled to it under the order of a competent foreign Court.
In response to the notice issued by this Court, the first respondent appeared and produced the child in Court and filed a counter affidavit explaining his conduct the explanation tendered by him was that his father was serious ly ill and he wanted his father to see the child.
It was further submitted that the child prefers to stay With him in Pune and hence he was admitted in a School there and that it will be in the interest of the child that he should he allowed to reside with him in India.
Disposing of the petition, HELD: 1.
Whenever a question arises before Court per taining to the custody of a minor child, the matter is to he decided not on consideration of the legal rights of parties but on the sole and predominant criterion of what would best serve the interest and welfare of the minor.
[181F] 2.
It is the duty of all Courts in all countries to do all they can to ensure that the wrongdoer does not gain an advantage by his wrongdoing.
The Courts in all countries ought to be careful not to do anything to encourage the tendency of sudden and unauthorised removal of children from one country to another.
This substitution of self help for due process of law in this field can only harm the interests of the wards generally, and a judge should pay due regard to the orders of the proper foreign Court unless he is satis fied beyond reasonable doubt that to do so would inflict serious harm on the child.
[183B D] 177 Re H. (infants), 1966 (I) All E.R. 886, relied upon.
The conduct of the first respondent in taking the child from the custody of the person to whom it had been entrusted by the Court was undoubtedly most repprehensible.
The explanation sought to be given, namely, his father 's illness, is far from convincing and does not in any way justify such gross violation and contempt of the order of the Circuit Court in Michigan.
[181E] 4.
The child 's presence in India is the result of an illegal act of abduction and the father who is guilty of the said act cannot claim any advantage by stating that he has already put the child in some school.
The conduct of the father has not been such as to inspire confidence in the Court that he is a fit and suitable person to be entrusted with the custody and guardianship of the child.
[182C] 5.
It will be in the best interest and welfare of the child that he should go back to the United States of AmeriCa and continue his education there under the custody and guardianship of the mother to whom such custody and guard ianship have been entrusted by a competent Court in that country.
The petitioner who is the mother, it full of genu ine love and affection for the child and she can be safely trusted to look after him, educate him, and attend in every possible way to his proper up bringing.
The child has not taken root in this country and he is still accustomed and acclamatized to the place of his origin in the United States of America.
[181 H 182A, B] 6.
The first respondent has tendered before this Court an unconditional apology.
The proper step to be taken by him is to tender such an apology to the Court whose order he has violated.
He has been found to be in contempt of the Circuit Court, Saginaw, Michigan for violation of its order and that Court has consequently terminated the visitation rights conferred on the first respondent.
He may move that Court for modification of its order on tendering his unconditional apology to that Court.
The petitioner should cooperate with the respondent in the matter of enabling him to have re stricted visitation rights in America and should also extend her cooperation for the withdrawal of the warrants of arrest outstanding against the first respondent.
[I83F 184C]