judgement:
Appeal No. 122 of 1954.
Appeal under section 109(b) read with section 110, C.P.C. from the judgment and order dated the 28th September 1953 of the Orissa High Court in O.S. No. I of 1953.
P. R. Das and Bakshi Tek Chand, with M. Mohantiand section P. Varma, for the appellant.
M. C. Setalvad, Attorney General of India.
B. Mohapatra, Advocate General of Orissa with section Mohanti and P. G. Gokhale, for the respondent.
February 3.
The Judgment of the Court was delivered by DAS C.J.
This is an appeal from the judgment and decree passed on the 28th September, 1953, by a Bench of the Orissa High Court in an Original Suit which was filed on the 24th November, 1952, in the Court of the Subordinate Judge of Cuttack and was on the 17th January, 1953, transferred to the High Court and marked as Original Suit No. 1 of 1953.
The suit was filed by the plaintiff appellant claiming as the Raja and owner of the Rajgee, known as the Kanika Raj, against the State of Orissa, praying for a declaration that the Orissa Estates Abolition Act, 1951 (hereinafter referred to as "the Abolition Act") was, in its application to the Rajgee of Kanika, invalid, unconstitutional and ultra vires the State Legislature and for an injunction restraining the State of Orissa from taking any action under the said Act.
The suit was instituted evidently under an apprehension that the State of Orissa might issue a notification under section 3(1) of the Abolition Act declaring that the Rajgee of Kanika had passed to and become vested in the State free from all encumbrances.
The High Court dismissed the suit but gave a certificate of fitness for appeal to this court.
Hence the present appeal by the plaintiff.
The plaintiff 's contention before us is that no notification under section 3(1) of the Abolition Act 10 74 can issue because (1) his land is not an "estate" as defined in section 2(g) of the Act, and (2) the plaintiff is not an "intermediary ' within the meaning of section 2(h) thereof.
In answer to this, the AttorneyGeneral, appearing on behalf of the State, makes five Submissions, viz., (a) that on the admitted facts the plaintiff 's land is an "estate" within the meaning of the Abolition Act; (b) that the plaintiff is estopped by the compromise decree passed by the Patna High Court on 2nd May 1945 in F.A. No. 15 of 1941 from contending that his land is not an "estate" within the meaning of the Abolition Act; (c) that the plaintiff 's land has been held as an "estate" ever since 1803; (d) that whatever may have been the position before 1805, the plaintiff 's land became an "estate" by Regulation XII of 1805; and (e) that in any event, the plaintiff 's 'land became an "estate" after 1805 by subsequent acts and conduct of the plaintiff and his predecessors in title.
(a): Under section 3(1) of the Abolition Act, the State Government can declare that a specified "estate" has passed to and has become vested in the State.
It is, therefore, clear that the State Government cannot make any notification with respect to land which is not an "estate".
"Estate" is defined in section 2(g) of the Abolition Act.
The material portion of that definition, as it stood at the date of the institution of the suit, was as follows: `` `estate ' means any land held by an intermediary and included under one entry in any of the general registers of revenue paying lands and revenue, free lands, prepared and maintained under the law for the time being in force by the Collector of a district,. . . . . ' ' In order to be an "estate", the land must be held by an "intermediary" and must be included under one entry in any of the general registers of revenue paying lands and revenue free lands and such general registers must be prepared and maintained under the 75 law for the time being in force.
Section 2(h), as it stood then, by its earlier part, defined an "intermediary", with reference to any "estate", to mean, amongst other things, a proprietor.
The plaintiff certainly claims to be the proprietor of his land.
Therefore, if his land is an "estate", he is clearly an "intermediary".
The case of Biswambhar Singh vs The State of Orissa and Others"), which has been relied on by learned counsel for the plaintiff has no application to the present case, for that case was concerned not with the earlier but with the latter part of the definition of "intermediary".
That the plaintiff 's land is included under one entry in the general register of revenue paying lands is not disputed.
What is contended for is that in order to make such land an "estate" the register must be prepared and maintained under the law for the time being in force.
There is no dispute that "the law for the time being ,in force" means the Bengal Land Registration Act (Bengal Act VII of 1876).
The plaintiff contends that the register in which his land is included under one entry was not prepared or maintained under the Bengal Land Registration Act.
The argument is that it is not only necessary to show that the land is included under one entry in a register but that it is also necessary to show that the register where the entry appears was prepared and maintained under the law.
Under the Bengal Land Registration Act, 1876, land can be included in the register prepared and maintained under that Act only if such land is an "estate" as defined in that Act.
The relevant part of that definition is: "3(2) 'estate ' includes: (a)any land subject to the payment of landrevenue, either immediately or prospectively, for the dis charge of which a separate engagement has been entered into with Government; (b). . . . . . . . . . (c). . . . . . . . . .
It is urged, therefore, that the preparation of a register under that Act means the making of entries in that (1) [1954] S.C.R.842 76 register of lands which are subject to the payment of land revenue for the discharge of which a separate engagement has been entered into.
Land which is not subject to payment of land revenue and for the discharge of which a separate engagement has not been entered into is not an "estate" and cannot be entered in the register prepared and maintained under the Bengal Land Registration Act.
That Act confers powers on the Collector to prepare the register in the manner specified therein and such statutory power, in order to have effect, must be exercised in strict compliance with the provisions of that Act.
The plaintiff maintains that the Rajgee of Kanika was never subject to payment of land revenue for the discharge of which a separate engagement had been entered into by him or his predecessors in title.
That the ancestors of the plaintiff were at one time independent chiefs and that the Rajgee or Killa of, Kanika was in ancient time an independent State are conceded.
Later on, the Rajas of Kanika owed nominal allegiance to the Mahrattas.
Then came the last Mahratta War and the plains of Orissa were conquered by the East India Company.
On 22nd November, 1803, there was an "Engagement" between the East India Company and Raja Balabhadra Bhanja Deo, the then Raja of Killa Kanika.
The East India Company on the same day granted a Kaool Namah to the Raja.
Under the Engagement the Raja agreed, amongst 'Other things, to pay, as annual Peshkush or tribute, 84,840 Kahuns of Cowrees, amounting to Rs. 20,407 12 1 1.
This Engagement was confirmed by clause 10 of the Treaty of Peace concluded on the 17th December, 1803, at Deogan between the East India Company and the Mahrattas which treaty was later on ratified by the GovernorGeneral in 1804.
On the 5th September, 1805, was passed the Bengal Regulation XII of 1805.
Sections 33 to 37 which are material for our present purpose were as follows: "XXXIII.
The Commissioners having granted sanads to certain zamindars, entitling them to hold, 77 their estates at a fixed jama in perpetuity, those sanads are hereby confirmed '.
The following is the list of the names of the zamindars to whom this provision is to be considered applicable: Zamindar of Killah Darpan, Zamindar of Killah Sookindah, Zamindar of Killah Muddoopore.
XXXIV.
The Commissioners having likewise granted a sanad to Futtah Mohmed, jaghirdar of Malood, entitling him and his heirs for ever, in consideration of certain services performed towards the British Government, to hold his lands exempt from assessment, such sanad is hereby confirmed.
First.
The late Board of Commissioners having concluded a settlement of the land revenue with certain zamindars, whose estates are situated chiefly in the hills and jungles, for the payment of a fixed annual quit rent in perpetuity, those engagements are hereby confirmed; and no alteration shall, at any time, be made in the amount of the revenue payable under the engagements in question to Government.
Second.
The following is a list of the mehals to which the provision in the preceding Clause is applicable: Killah Aull, : Killah Humishpore, Killah Cojang, : Killah Miritchpore, Killah Puttra, : Killah Bishenpore.
Third.
The zamindaries of Cordah and Cunka being mehals of the description of those specified in the preceding Clause, a settlement shall be concluded, as soon as circumstances may admit, for the revenue of those mehals on the principle on which a settlement has been concluded with the zamindars of the mehals specified in the preceding Clause.
XXXVI.
All Regulations relating directly or indirectly to the settlement and collection of the public revenue, or to the conduct of the officers employed in the performance of that duty, whether European or native, in the province of Bengal, which are not superseded by the foregoing rules, are hereby extended to, and declared to be in force in the zillah 78 of Cuttack.
Provided, however, that nothing herein contained shall be construed to authorize the division of the lands comprised in any estates in the zillah of Cuttack, in which the succession to the entire estate devolves according to established usage to a single heir: in cases of this nature, the Courts of Justice are to be guided by the provisions contained in Regulation X, 1800.
Provided, also, that nothing herein contained shall be construed to imply, that any part of the said Regulations are for the present to be considered to be in force in certain jungle or hill zamindarries occupied by a rude and uncivilized race of people with the proprietors of which estates engagements were formed by the late Board of Commissioners for the payment of a certain fixed quit rent or tribute to Government.
The following is the list of the names of the mehals to which this exemption from the operation of the general Regulations is to be considered applicable.
Killah Neelgerry, : Killah Toalcherry,Killah Rampore, Killah Bankey, : Killah Attgurh, Killah Hindole, Killah Joormoo, : Killah Kunjur,Killah Teegereah, Killah Nirsing : Killah Kindeapara,:Killah pore, Burrumboh, Killah Augole, : Killah Neahgurh,: Killah Deckenaul.
XXXVII.
The foregoing exemption from the operation of the general Regulations shall likewise, for the present, be considered to be applicable to the lands known by the appellation of the territory of Mohurbunge; but it shall be the duty of the Collector of the zillah to conclude a settlement with the proprietor of the estate for the payment of a fixed annual quit rent, on the principles on which a settlement has been concluded with the other bill or jungle zamindars specified in the preceding section".
It is claimed that there was at no subsequent time any such revenue settlement as was contemplated by 79 section XXXV(3) and that there was no separate engagement for payment of any land revenue at any time thereafter.
The conclusion sought to be drawn in the circumstances is that as Killa Kanika was not subject to payment of land revenue.
, for the discharge of which a separate engagement had been entered into, it was not an "estate" as defined in Bengal Land Registration Act, 1876, and that that being the posi tion, it could not have been validly entered in the register prepared and maintained under the Bengal Land Registration Act.
The action of the Collector in entering Killa Kanika as a revenue paying estate was wholly ultra vires and in the eye of the law such an entry is a nullity and does not exist.
It follows, therefore, that Killa Kanika cannot be regarded as an "estate" within the meaning of the Abolition Act because the general register in which it is included cannot be said to have been validly prepared and maintained under the law for the time being in force.
Section 4 of the Bengal Land Registration Act, 1876, directs the Collector of every district to prepare and keep up the four kinds of registers therein mentioned.
Section 7 lays down that in Part I of the general register of revenue paying lands should be entered the name of every estate which is borne on the revenue roll of the district and certain other particulars relating to every such estate as therein specified.
Therefore, if the name of Killa Kanika was borne on the revenue roll of the district, the Collector would be bound to enter the same in Part I of the general register prepared and kept up by him under section 4.
Section 20 of the Act provides that until the registers by that Act directed to be prepared were so prepared the existing registers then kept up in the office of every Collector should be deemed to be the registers kept up under the Bengal Land Registration Act, 1876.
Prior to 1876, land registers used to be maintained under the Bengal Regulation XLVIII of 1793 as amended by Bengal Regulation VII of 1800.
Existing registers mentioned in section 20 of the Bengal Land Registration Act, 1876, clearly refer to registers kept under those Regulations and the learned 80 Attorney General contends that section 20 gives a statutory validity to the registers kept under those Regulations.
Mr. P. R. Das appearing for the appellant submits that his arguments apply with equal force to the registers kept under the old Regulations referred to above.
According to him, if the Collector entered lands which were not "estate" as defined in the old Regulations, he did not exercise his statutory powers and the entry made by him was a nullity and if any of the existing registers was void as regards a particular entry, then that entry did not exist and could not be transferred to the new register and if it was transferred, such transfer was a nullity and the new register, qua that entry, was void and could not be said to have been prepared and maintained under law.
We are unable to accept the line of reasoning developed by Mr. P. R. Das.
To accede to his contention would be to add words to section 2(g) of the Abolition Act so as to make it applicable to lands which were "validly" included under one entry in any of the general registers "properly" prepared and maintained under the law for the time being in force, that is to say, the Bengal Land Registration Act 1876.
This the court has no power to do.
If section 2(g) defined "estate" as including lands mentioned in the schedule to the Act, then whatever was included in the schedule would be an "estate" within the meaning of the Abolition Act, irrespective of whether such land was or was not an "estate" within the meaning of any other Act.
The same reasoning applies when the definition includes lands entered in the general registers prepared and maintained under the Bengal Land Registration Act, 1876.
Here the reference to the register prepared or kept under the law for the time being in force was meant only to identify the particular register in which the particular land was included under one entry.
Suppose that a )register prepared and maintained under the Bengal Land Registration Act, 1876, included lands which were "estates" within the meaning of the Land Registration Act and also lands which were not 81 "estates" within the meaning of that Act. 'Suppose further that the Orissa Legislature by the Abolition Act intended to include all these lands, properly or improperly included in the register, what language would they then have used? Precisely the language they have used in section 2(g) of the Abolition Act, namely, that an "estate" means any land included in the general registers prepared and maintained under the law for the time being in force.
In other words, the definition covers lands which are factually included in the particular register referred to.
Whether they are "estates" within the meaning of the Bengal Land Registration Act, 1876, and whether they were validly or properly entered according to the provisions of that Act., appears to us to be wholly irrelevant for the purpose of construing section 3 (g) of the Abolition Act.
In our opinion, the contention of the State of Orissa on this point must be accepted.
P. R. Das appearing for the appellant objects to the plea of estoppel being raised, because it has not been included in the Statement of Case filed in the present appeal by the respondent.
Order XVIII of the Rules of this Court deals with the lodging of cases.
Under Rule I no party to an appeal is entitled to be heard by the court unless he has previously lodged his case in the appeal.
Rule 3 lays down how the case is to be prepared and what its contents should be.
Order XIX, Rule 4 provides that the appellant shall not, without the leave of the Court, rely at the hearing on any grounds not specified in the Statement of Case filed by him.
The Privy Council Practice founded on Sheo Singh Rai vs Mussumut Dakho and Moorari Lall(1) and set forth in Bentwich 3rd edition Ruling 63 at page 181 is to the same effect.
There is no rule imposing corresponding disability on the respondent.
Further even with regard to the appellant the Court may, in appropriate cases, give him leave to raise a ground not specified in the Statement of Case.
In the present case there is no question of surprise, for the plea of estoppel was pointedly raised and made the subject matter of an (1) [1878] L.R. 5 I.A. 87.
11 82 issue before the High Court and was elaborately dealt with by the High Court in its Judgment under appeal.
In the circumstances we do not consider it proper to shut out this plea of estoppel.
The plea of estoppel is sought to be founded on the compromise decree, exhibit 'O ' passed by the Patna High Court on 2nd May, 1945, in F. A. No. 15 of 1941.
The compromise decree is utilised in the first place as creating an estoppel by judgment.
In In re.
South American and Mexican Company, Ex parte Bank of England(1), it has been held that a judgment by consent or default is as effective an estoppel between the parties as a judgment whereby the court exercises its mind oil a contested case.
Upholding the judgment of Vaughan Williams, J., Lord Herschell said at page 50: "The truth is, a judgment by consent is intended to put a stop to litigation between the parties just as much as is a judgment which results from the decision of the Court after the matter has been fought out to the end.
And I think it would be very mischievous if one were not to give a fair and reasonable interpretation to such judgments, and were to allow questions that were really involved in the action to be fought over again in a subsequent action".
To the like effect are the following observations of the Judicial Committee in Kinch vs Walcott and others(2): "First of all their Lordships are clear that in relation to this plea of estoppel it is of no advantage to the appellant that the order in the libel action which is said to raise it was a consent order.
For such a purpose an order by consent, not discharged by mutual agreement, and remaining unreduced, is as effective as an order of the Court made otherwise than by consent and not discharged on appeal".
The same principle has been followed by the High Courts in India in a number of reported decisions.
Reference need only be made to the case of Secretary of State, for India in Council vs Ateendranath Das(3), (1) (2) , 493.
(3) Cal.
550, 558.
83 Bhaishanker Nanabhai and others vs Morarji Keshavji and Co.(1) and Raja Kumara Venkata Perumal Raja Bahadur, Minor by guardian Mr. W. A. Varadachariar vs Thatha Ramasamy Chetty and others (2).
In the Calcutta case after referring to the English decisions the High Court observed as follows: "On this authority it becomes absolutely clear that the consent order is as effective as an order passed on contest, not only with reference to the conclusions arrived at in the previous suit but also with regard to every step in the process of reasoning on which the said conclusion is founded.
When we say "every step in the reasoning" we mean the findings on the essential facts on which the judgment or the ultimate conclusion was founded.
In other words the finding which it was necessary to arrive at for the purpose of sustaining the judgment in the particular case will operate as estoppel by judgment".
The correctness of these principles laid down in these decisions is not disputed by Mr. P.R. Das.
Proceeding on the basis that there is such a principle of estoppel by judgment, he contends that the test laid down in the decisions referred to above is whether the judgment in the previous case could have been passed without the determination of the question which was put in issue in the subsequent case, where the plea of estoppel by the previous judgment is raised.
This leads us to a consideration of the facts, which are material to this question.
On the 4th February, 1936, the predecessor in title of the plaintiff brought a suit (O.S. No. 7 of 1936) in the Court of the Subordinate Judge of Cuttack against the Secretary of State for India in Council, praying for a declaration that the plaintiff bad a good and indefeasible title to the beds of certain rivers, by expressed or implied grant from the East India Company, alternatively for a declaration that the plaintiff had acquired an indefeasible right and title to the beds of the said rivers by prescription or adverse possession and for permanent injunction against the defendant restraining him from interfering with the (1) Bom.
283, (2) Mad.
84 rights of the plaintiff in the beds of the said rivers and the churs formed on them.
The suit was founded on, amongst others, the following allegations.
In paragraphs 3 to 6 of the plaint were pleaded that the plaintiff 's ancestors were the rulers of Killa Kanika owing allegiance to the Hindu Gajapati Kings of Orissa and were absolute owners of all lands and waters within the ambit of their territories including the two rivers therein mentioned and that after the fall of the Hindu kingdom in Orissa, and during the Afghan, Moghal and Mahratha occupation of Orissa, the Rulers of Killa Kanika, the ancestors of the plaintiff continued to be the absolute owners of the Killa including the said rivers.
In paragraph 7 of the plaint reference was made to the Engagement and Kaoolnama of 1803, whereby the Raja was said to have been confirmed in his Rajgee or proprietorship of the entire Killa and it was submitted that the said grant was intended to and did, in fact, confirm his title, to the said rivers.
In paragraph 9 of the plaint, it was acknowledged that subsequently the status of the rulers of Killa Kanika was gradually reduced to that of a Zamindar and that.
they were divested of all administrative powers, but it was claimed that nevertheless, their proprietary rights in the Killa consisting of land and water including the disputed rivers remained intact and that the tribute which had been fixed by the engagement of 1803 remained so in perpetuity as Peshkush payable by the proprietors.
In paragraph 33 it was stated that having regard to the fact that prior to the British conquest of Orissa, the plaintiffs predecessors in title had been independent rulers of Killa Kanika and as such had valid title to the said rivers within their territory and that after the British conquest the East India Company confirmed the title of the then Raja of Kanika to whatever had been in the possession of the said Raja prior to the said conquest and maintained him in possession thereof, the plaintiff claimed good and valid title to the beds of the said rivers by an express or implied grant by the said East India Company.
A claim of title to the beds of the said 85 rivers by prescription and adverse possession was also pleaded by way of alternative plea.
The written statement of the Secretary of State was filed on the 29th May, 1936, traversing the allegations in the plaint.
In paragraph 7 it was definitely pleaded that the Raja, with whom engagement had been entered into in 1803, was deposed for miisrule and his status was reduced to that of a Zamindar as a punishment and that it was as an act of mercy that he was allowed to retain the estate without an enhancement of his Peshkush.
It was submitted that in view of the treatment of the estate during the past 100 years, it was idle for the plaintiff to suggest that he retained the rights comparable to those of a Ruling Chief.
Reading the pleadings and the issues raised in the case fairly and as a whole,it appears quite clear that although the Engagement and Kaoolnama of 1803 was referred to as a grant, express or implied, from the East India Company, the plaintiff was, in substance, founding his claim on his antecedent title as the Ruling Chief of Killa Kanika which, according to him, bad been confirmed by the Engagement and Kaoolnama of 1803, which were, therefore, construed as a grant, express or implied, from the East India Company.
That the real issue on which the suit was fought out in the trial court was whether the plaintiff was an independent Ruling Chief and as such entitled to the beds of the rivers passing through his territory or was a mere Zemindar and as such having no such right is apparent from the following passage in the judgment of the Subordinate Judge "It is, therefore, too late now to suggest that the status of the plaintiff in relation to his Killa is something higher than or superior to that of a holder of an estate.
In my view, it is of no consequence, as respects the point now under consideration whether the estate is a permanently settled estate or it is a temporarily settled estate.
The question is whether the plaintiff is the holder of an estate or it is that he owns a State.
But as I have just pointed out, a private individual cannot own a State in the sense a sovereign authority owns the same".
86 After referring to the Regulations of 1805 and 1806, the learned Subordinate Judge proceeded to say: "Thus it is apparent that with the advent of the British the question of status of the plaintiff was never left in any degree of uncertainty.
All these various Regulations taken together will go to establish in an unmistakable term, that the plaintiff 's status in his relation to his Killa, was recognised from the time of the advent of the British in Orissa as that of a Zamindar, i.e., a bolder of an estate.
That being so, in relation to these rivers, or to their beds, the plaintiff 's position shall be nothing more than or superior to that of a riparian owner".
Again referring to the Engagement and Kaoolnama of 1803 the learned Subordinate Judge stated as follows: "Now taking these two documents together, it is difficult to read in them that any grant was made either expressly or impliedly by the sovereign authority in favour of the holder of the Killa.
The main provisions are that the revenue was fixed for ever, and that the holder was asked to be loyal to the Company 's Government.
Thus initially, I have been unable to associate any idea of grant as to be flowing from these engagements.
All that can be said, and perhaps the earned counsel for the plaintiff maintains to that effect, is that what rights the holder of the Killa had, in reference to the Killa, were fully and without any limitation or restriction, recognised.
It is, therefore, that the question will now be set at large for a discussion as to what rights the proprietor of the Killa had at the time when these engagements were made".
It is needless to extract further passages from the judgment.
In the result the learned Subordinate Judge answered the issues against the plaintiff and dismissed the suit.
The plaintiff appealed to the Patna High Court.
A compromise was arrived at between the parties, which was filed in court and the appeal was disposed of in accordance with the terms of the compromise petition.
The principal terms of the compromise petition were as follows: 87 "1.
That it shall be declared that the Crown and for the matter of that, the Province of Orissa, the defendant has the title to the disputed river beds, as described in the schedule of the plaint, and the plaintiff appellant acknowledges the same.
2.That the plaintiff appellant, that is the Proprietor of the Kanika Estate is the rightful owner of the fisheries of the said rivers and the defendant has not nor will have any objection to his unobstructed exclusive permanent enjoyment of the fishery rights in the said rivers at any time whatsoever.
The respondents shall not claim nor the appellant shall be liable to any assessment on that ground, other than what is payable in respect of the permanently settled estate of Killa.
3.That subject to such rights as the Crown or in other words, the Province of Orissa has in the beds of the rivers aforesaid and in the channel of waters flowing thereon, the Proprietor of Kanika Estate that is the plaintiff appellant will have his rights to the ferries over the said rivers which he has been so far enjoying and except when such ferry rights interfere with the Crown 's right in the bed of the rivers and similar rights in the waters on the channel of the rivers for the purpose of navigation and things of the kind, the Province of Orissa will not interfere with nor raise any objection to the plaintiff 's enjoyment of such rights or ferry through the length and breadth of the aforesaid rivers.
4.That such Chars, islands or other accretions formed in the said rivers as have been shown in the Civil Court Commissioner 's map prepared in this suit and now forming a part of the court 's record shall be deemed as part and parcel of the permanently settled estate of Kanika and the defendant will not be entitled to any further assessment in respect thereof.
5.That all future riparian accretions or Chars formed adjoining the banks of the rivers in dispute shall also be always deemed to be part and parcel of the said permanently settled Zamindary of Kanika and shall be so possessed by him without any further payment on assessment of land revenue over and 88 above the land revenue that has been permanently fixed.
6.That all other islands or Chars that may be formed subsequent hereto in the midst of the river being cut off from the banks thereof by waters that are tidal, unfordable and navigable in all seasons of the year shall belong to the defendant and the plaintiff or his successor in interest will have a right to possess and take settlement of the same from the defendant and the latter will have the right to levy assessment of land revenue thereon according to the principles and provisions of law as laid down in Regulation II of 1819 and this assessment will be of force from the time when the islands or Chars will appear and be capable of enjoyment irrespective of the fact whether estate holder does really enjoy it or not ' .
The declaration of the title of the State to the disputed river beds was a clear acknowledgment by the plaintiff of the State 's sovereign rights, which necessarily negatived the sovereign rights which he asserted and claimed for himself.
The declaration that the plaintiff, as the proprietor of the Kanika estate, was the ' rightful owner of fisheries in the said rivers and that the defendant would not claim any assessment on that ground was nothing but a recognition of the plaintiff 's title as the holder of a permanently settled estate.
The same observations apply to clause (3) whereby the plaintiff was declared to have the ferry rights over the said rivers, which were expressly made subject to the rights of the State in the beds of the rivers.
The provision that all future riparian accretions or Chars formed adjoining the banks of the rivers would always be deemed part of the permanently settled Zemindari of Kanika and should be possessed by him without further payment of assessment of land revenue over and above the land revenue that had been permanently fixed clearly acknowledges that the plaintiff accepted the position that he had no rights other than what he had as the holder of a permanently settled estate liable to the payment of land revenue, in contradistinction to 89 tribute fixed in perpetuity.
The provisions of clause (6) of the terms of settlement also point to the same conclusion.
Mr. P. R. Das contends that the issue in the present case is whether the land held by the plaintiff is an "estate" within the meaning of the Bengal Land Registration Act, 1876, whereas the issue in the earlier case was whether the plaintiff 's predecessors had title to the river beds by express or implied grant from the Crown.
This does not appear to us to be a fair reading of the pleadings as a whole.
The plaint in the earlier suit summarised above and the passages culled from the judgment of the trial court clearly indicate that the parties went to trial on the definite and well understood issue that the plaintiff 's claim to the river beds was founded on his anterior title as an independent Ruling Chief of Killa Kanika and that that title had been confirmed by the Engagement and Kaoolnama of 1803, which were, in a loose way, construed as a grant of the river beds, express or implied, by the East India Company.
What the parties understood by the issues on which they went to trial is clearly illustrated by the passages quoted from the judgment.
The fact that the claim in the earlier suit related only to a part of the land, namely the river beds, whereas the present case is that the entire land held by the plaintiff is not an "estate" makes no difference, for the real issue between the parties in the earlier suit was, as it is in the present suit, only concerning his status and the rights flowing therefrom.
To hold in this suit that the plaintiff is not the holder of an estate subject to payment of land revenue for the discharge of which a separate engagement has been entered into, will be to permit the plaintiff to set up a sovereign status for himself, which he actually did in the earlier case but failed to establish in the trial court and which he, by the compromise, expressly abandoned in the appeal court.
In our judgment the compromise decree precludes the plaintiff from re asserting the title, which had been negatived by the compromise decree although it related only to his claim to a part of the lands, namely 12 90 the beds of the rivers therein mentioned.
The compromise decree is also sought to be pleaded by the State against the plaintiff as estoppel by representation.
It is said, that even if the compromise had not the imprimatur of the court, it would, nevertheless, be representation that the plaintiff 's predecessor was the Zemindar of a permanently settled estate.
The compromise consisted of reciprocal concessions, those made by one party being the consideration for those made by the other.
It was on the basis of the concession made by the plaintiff 's predecessor, namely, that he was a Zemindar of a permanently settled estate, that the State gave up the benefit of the decree which had been passed in its favour by the trial court and also the right to levy assessment on the accretions of future Chars.
One of the main considerations for the compromise ,was the clear admission on the part of the plaintiff in that case that his status in respect of Killa Kanika was nothing more than that of a proprietor of a permanently settled estate liable to pay land revenue.
The High Court decided the issue of estoppel against the State on two considerations, namely, (1) that the status of the owner of Killa Kanika was not directly and substantially in issue in the earlier litigation and (2) that there was no clear evidence led on the side of the State to establish that the admission by the plaintiff in that case of his status was the main consideration for the compromise.
We are satisfied that the High Court was in error on both these points.
As already pointed out, the pleadings summarised above and the passages in the judgments quoted above clearly indicate that the status of the plaintiff was the foundation of his claim to the river beds and was consequently directly and substantially in issue in that litigation and was understood to be so by the parties themselves.
On the second ground the terms of the compromise speak for themselves.
It is quite clear that the concessions made by one party were the consideration for those made by the other party and, therefore, it was not necessary to adduce any further evidence, assuming that any evidence was 91 admissible for the purpose.
In our judgment, the finding of the High Court on this issue was clearly erroneous.
Each of the conclusions we have arrived at on the first two points is quite sufficient, by itself, to enable us to dispose of this appeal and it is not necessary for us to deal with or express any opinion on the other three points canvassed before us.
The result, therefore, is that this appeal should be dismissed with costs and we order accordingly.

summary/full:
The appellant sued the State of Orissa for a declaration that the Orissa Estates Abolition Act of 1951 was in its application to the Kanika Raj, of which he was the Raja and owner, invalid, unconstitutional and ultra vires the State Legislature and for an injunction restraining the State of Orissa from taking any action under the Act.
It was contended, inter alia, that no notification under section 3(1) of the Act vesting the Kanika Raj in the State of Orissa could issue as the Raj was not an estate as defined by section 2 (g) of the Act.
The contrary was asserted by the State of Orissa and its further contention was that the appellant was estopped by a compromise decree between his predecessors in title on the one band and the Secretary of State on the other from denying that the Raj was an estate as defined by the Act.
Held, that the Kanika Raj was an estate as defined by the Orissa Estates Abolition Act of 1951 and the appellant was estopped from denying it by the compromise decree.
That the real intention of the Act in defining 'estate ' as it has done in section 2(g) of the Act, was to include all lands, such as the appellant 's, which were as a matter of fact included ill the register prepared under the Bengal Land Registration Act Of 1876, and in construing the definition it is wholly unnecessary to consider whether such inclusion was valid or proper or in conformity with the meaning of an estate under that Act.
That a judgment by consent is as effective in creating an estoppel between the parties as a judgment on contest and the test is whether the judgment in the previous case could have been passed without the determination of the question which is put in issue in the subsequent case where the plea of estoppel is raised.
Held further, that there is no rule corresponding to Rule 4 of Order XIX of the Supreme Court Rules imposing a similar disability on the respondent, and even with regard to the appellant the court may in appropriate cases, give him leave to raise a ground not specified in the Statement of the Case filed by him.


judgement:
N: Criminal Appeal No. 117 of 1978.
(Appeal from the Judgment and order dt.
5 12 77 of the Punjab & Haryana High Court in Criminal Misc.
Petition No. 3892 M of 1976).
R. section Narula, M. section Marwah and D. section Narula for the appellant.
section K. Mehta, K. R. Nagaraja and P. N. Puri for the respondents.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
Jagir Singh, the appellant in this appeal by special leave, was married to Kirpal Kaur in 1951.
Husband and wife became estranged in 1954, since when they have been living separately.
Ranbir Singh, the issue of the marriage, was born in 1954.
Jagir Singh married again and it is said that he has a son and a daughter by the second wife.
On 25th May, 1971, Kirpal Kaur and Ranbir singh filed an application for maintenance under Section 488 of the Criminal Procedure Code, 1898.
One of the defences raised by the appellant to that application was that Ranbir Singh was a major and, therefore, not entitled to claim maintenance under Section 488.
The Magistrate held that Ranbir Singh was a student who was unable to maintain himself and, therefore, the question whether he was a major or a minor was immaterial.
On 19th May, 1973, he made an order awarding maintenance at the rate of Rs. 200/ per month to Kirpal Kaur and Rs. 75/ per month to Ranbir Singh, Jagir Singh filed a revision petition before the Sessions Judge.
By consent of the parties, the Sessions Judge made a reference to the High Court recommending that the award of maintenance in favour of the wife should be reduced to Rs. 150/ per month and that the award of Rs. 75/ per month to the son should be confirmed.
The reference was accepted by the High Court.
The Criminal Procedure Code 1898 was repealed and the Criminal Procedure Code 1974 was enacted in its place.
The new Code came into force on 1st April, 1974.
On 3rd May, 1974, the appellant made an application before the Magistrate, purporting to be under Section 127 of the new Code, for cancellation of the order of maintenance in favour of the son on the ground that the son had attained majority 285 and did not suffer from any infirmity or abnormality which prevented A him from maintaining himself.
It was claimed on behalf of the appellant that under the new Code it was not permissible to award maintenance or enforce an order to maintenance in favour of a child who had attained majority and who was not unable to maintain itself by reason of any physical or mental abnormality or injury.
On 3rd June, 1974, the son filed a counter admitting that he had attained majority but claiming that he was still a student, unable to maintain himself.
The son claimed that the order in his favour had been validly passed under the old Code and continued to remain in force notwithstanding the enactment of the new Code.
On 9th May, 1975, the learned Magistrate allowed the application of the father under Section 127 of the Criminal Procedure Code 1974 and cancelled the order for maintenance made earlier in favour of the son.
Ranbir Singh, the son, filed a Revision Application before the Sessions Judge.
It was dismissed on 12th March, 1976.
The learned Sessions Judge held that the order made under Section 488 of the old Code could survive under Section 484(2) of the new Code if there was a corresponding provision under the new Code which enabled the award of maintenance to a major child.
Since there was no such corresponding provision the order under Section 477 in favour of Ranbir Singh ceased to be in force.
Ranbir Singh then filed a Revision Application before the High Court of Punjab and Haryana which was allowed on 5th December, 1977.
The High Court held that notwithstanding the change in the law which disentitled a major child from claiming maintenance, Section 125 of the new Code did correspond to Section 488 of the old Code.
Therefore, the order for maintenance in favour of Ranbir Singh was saved by Section 484(2) of the Code of 1974.
1974 Jagir Singh has preferred this appeal after obtaining special leave from this Court under Article 136 of the Constitution.
Shri R. section Narula, learned Counsel for the appellant contended that the Revision Application to the High Court was incompetent as it was barred by the provisions of Section 397(3) of the Code of Criminal Procedure 1974.
He argued that the right of the respondent to invoke the revisional jurisdiction of a superior Court became exhausted when he invoked the revisional jurisdiction of the Sessions Judge.
Shri Narula further contended that under Section 125 of the Criminal Procedure Code 1974, a major son who did not suffer from any physical or mental abnormality or injury which prevented him from maintaining himself was not entitled to get an order for maintenance in his favour and that an order made in favour of such a son under Section 488 Criminal Procedure Code of 1898 was not saved either by Section 484(2) of the Code of Criminal Procedure 1974 or Sections 6 and 24 286 of the General Clauses Act.
Shri section K. Mehta, learned Counsel for the respondent submitted that the revision application before the High Court could be treated and maintained as one directed against the order of the Sessions Judge rejecting the Revision Application made to him.
In any case he argued that the Revision Application could be treated as one under Article 227 of the Constitution.
He contended that the order of the Magistrate under Section 488 of the Criminal Procedure Code 1898 continued to be in force and that it could not be cancelled merely because Section 125 did not provide for the award of maintenance to a major son who did not suffer from any abnormality or injury.
The first question for consideration is whether the High Court was precluded from interfering with the order of the Magistrate in the exercise of its revisional jurisdiction by reason of the provisions of Section 397(3) of the Criminal Procedure Code 1974.
Section 397 which corresponds to Section 435 of the Criminal Procedure Code 1898 invests the High Court and the Sessions Judge with concurrent revisional jurisdiction over inferior criminal Courts within their jurisdiction The District Magistrate who also had revisional jurisdiction under Section 435 of the Code of Criminal Procedure 1898 is now divested of such jurisdiction.
In addition, there are, in the 1974 Code two important change Both of which are apparently designed to avoid delay and to secure prompt rather than perfect justice.
The first change is that introduced by Section 397(2) which bars the exercise of revisional power in relation to any interlocutory order passed in any appeal, enquiry, trial or other proceeding.
The second is that introduced by Section 397(3) which provides that if an application under the Section has been made by any person either to the High Court or to the Sessions Judge, and further application by the same person shall be entertained by the other of them.
We are concerned with this provision in this appeal.
The object of Section 397(3) is clear.
It is to prevent a multiple exercise of revisional powers and to secure early finality to orders.
Any person aggrieved by an order of an inferior Criminal Court is given the option to approach either the Session Judge or the High Court and once he exercises the option he is precluded from invoking the revisional jurisdiction of the other authority.
The language of Section 397(3) is clear and peremptory and it does not admit of any other interpretation.
We may also mention here that even under Section 435 of the previous Code of Criminal Procedure, while the Sessions Judge and the District Magistrate had concurrent jurisdiction, like present Section 397(3) previous Section 435(4) provides that if an application under the Section had been made either to the Sessions 287 Judge or District Magistrate no further application shall be entertained by the other of them.
In order to cross the hurdle imposed by Section 397(3) it was suggested that the revision application before the High Court could be treated as an application directed against the order of the Sessions Judge instead or an one directed against the order of the Magistrate We do not think that it is permissible to do so.
What may not be done directly cannot be allowed to be done indirectly, that would be an evasion of the statute.
It is a "well known principle of law that the provisions of an Act of Parliament shall not be evaded by shift or contrivance" (per Abbott C.J. in Fox vs Bishop of Chester(1) "To carry out effectually the object of a Statute, it must be construed as to defeat all attempts to do, or avoid doing, in an indirect or circuitous manner that which it has prohibited or enjoined" (Maxwell, 11th edition, page 109).
When the Sessions Judge refused to interfere with the order of the Magistrate, the High Court 's jurisdiction was invoked to avoid the order of the Magistrate and not that of the Sessions Judge.
The bar of Section 397(3) was, therefore, effectively attracted and the bar could not be circumvented by the subterfuge of treating the revision application as directed against the Session Judge 's order.
If the` revision application to the High Court could not be maintained under the provisions of the Criminal Procedure Code, could the order of the High Court be sustained under Article 227 of the Constitution, as now suggested by the respondent ? In the first place the High Court did not purport to exercise its power of superintendence under Article 227.
The power under Article 227 is a discretionary power and it is difficult to attribute to the order of the High Court such source of power when the High Court itself did not, in terms, purport to exercise any such discretionary power.
In the second place the power of judicial superintendence under Article 227 could only be exercised, sparingly, to keep subordinate Courts and Tribunals within the bounds of their authority and not to correct mere errors.
Where the statute banned the exercise of revisional powers by the High Court, it would indeed require very exceptional circumstances to warrant interference under Article 227 of the Constitution, since the power of Superintendence was not meant to circumvent statutory law.
In the third place it was doubtful if the High Court could exercise any power of judicial superintendence on the date of its order as the Constitution 42nd Amendment Act had by then been passed.
By the 42nd Amendment Act clause (5) was added in Article 227 of the Constitution and it says "Nothing in this article shall (1) (1824) 2 B & 635.
288 be construed as giving to a High Court any jurisdiction to question any judgment of any inferior Court which is not otherwise subject to appeal or revision".
Clause (5) of Article 227 introduced by the 42nd Amendment Act is a verbatim reproduction of Sub Section (2) of Section 224 of the Government of India Act, 1935 which it was held conferred powers of administrative superintendence only and not the power of Judicial Superintendence.
In the present case the revision application was, however, filed before the passing of the 42nd Amendment Act and it was therefore, argued by the learned Counsel for the respondent that the High Court could exercise the power of superintendence possessed by it before the 42nd Amendment.
We have serious doubts.
Article 227, before the 42nd Amendment, gave no right to any party.
An application invoking the High Court 's power of Superintendence did not create any vested right in the suitor.
There could, therefore, be no question of any vested right being taken away or not being taken away by the amendment.
It was just a question whether the High Court possessed the power of Superintendence on the date of the High Court 's order.
There is no dispute that it did not.
We do not wish to pursue the matter further as in our view there was no case to warrant interference under Article 227 of the Constitution.
In view of the foregoing discussion, the revision application to the High Court must be held to be incompetent.
In that view it is unnecessary to go into the question whether the original order under Section 488, Criminal Procedure Code, 1898 in favour of the respondent could be cancelled under Section 127 of the Criminal Procedure Code 1974, But the lower Courts went into the question at some length and detailed submissions were made before us.
We will express our opinion briefly.
Section 484(1) of the 1974 Code repeals the Code of Criminal Procedure 1898.
Section 484(2) (a) provides for the continuance and disposal of pending cases in accordance with the provisions of the old Code.
Section 484(2)(b) provides that 'all notifications published,, proclamations issued, powers conferred, forms prescribed, local jurisdictions defined, sentences passed and orders, rules and appointments made under the old Code and which are in force immediately before the commencement ' of the new Code, shall be deemed, respectively, to have been published, issued, conferred, prescribed, defined, passed or made under the corresponding provisions of the new Code.
In the present case the order of the Magistrate under Section 488 of the old Code awarding maintenance to the respondent was made on 19th May, 1973.
The new Code came into force on 1st April, 1974.
Therefore, the order was in force immediately before the commencement of the new Code.
289 It must, therefore, be deemed to have been made under the corresponding provision of the new Code.
The question,, therefore, is whether there is any provision of the new Code corresponding to the provision of the old Code under which maintenance was awarded to the respondent.
As we said, the respondent was awarded maintenance under Section 488 of the Criminal Procedure Code 1898.
Under Section 488 Criminal Procedure Code 1898 a person having sufficient means and neglecting or refusing to maintain his wife or his legitimate or illegitimate child unable to maintain itself could be ordered to make a monthly allowance for the maintenance of his wife or such child.
The word child used in Section 488 led to some controversy whether a person could be ordered to pay maintenance to a child who had attained majority but who was unable to maintain itself.
In Nanak Chand vs Chandra Kishore Agarwal & Ors.
(1) the Supreme Court held that the word 'child ' in Section 488 did not mean a minor son or daughter and that the real limitation was contained in the expression 'unable to maintain itself.
Irrespective of whether a son or daughter was a major or minor, a father was bound to maintain the son or daughter if such son or daughter was unable to maintain himself or herself.
Section 125 of the 1974 Code makes a slight departure.
Under this provision child who has attained majority is not entitled to be awarded maintenance unless such child is unable to maintain itself by reason of any physical or mental abnormality or injury.
According to Shri R. section Narula in view of the change it cannot be said that the new Code contains ally provision corresponding to the provision in the old Code which authorised the award of maintenance to a child who had attained majority and who was unable to maintain itself even if such child did not suffer from any physical or mental abnormality or injury.
Therefore, according to Shri Narula, Section 484(2) (b) does not save all order awarding maintenance in favour of a child who has attained majority and who does not suffer from any physical or mental abnormality or injury.
It is difficult to agree with the submission of Shri Narula.
To accept the submission would be to give the expression "corresponding provision" the meaning "identical provision".
Whenever an Act is repealed and re enacted there are bound to be changes and modifications.
To say that a modified provision dealing with the same subject matter in substantially the same manner as the original provision is not a corresponding provision would be to practically mullify the effect of a "Repeal and Savings" provision like Section 484(2) (b) of the new Code.
In the Shorter oxford English Dictionary Third Edition Vol.
I, the word 'correspond ' is said to mean ' (1) to answer to something else in the way H (1) A.l.
R 290 of fitness; to agree with; be conformable to; be congruous or in harmony with.
(2) To answer to in character or function; to be similar to '.
In Butterworths 'Words and Phrases Legally defined ' Second Edition Vol. 1, it is said " 'to correspond ', does not usually, or properly, mean 'to be identical with ', but 'to harmonise with ', or 'to be suitable to ' " and reference is made to Sackville West vs Holmesdale (Viscount) (1).
We are, therefore, of the view that Section 125 of the new Code corresponds to Section 488 of the old Code notwithstanding the fact that under the new Code a child who has attained majority and who does not suffer from any infirmity is not entitled to be maintained by the father.
We also note that there are no words in Section 484(2) (b) limiting its application to orders made and sentences passed which are not inconsistent with the provisions of the new Code.
There are no such limiting words as may be found as for example in Section 24 of the General Clauses Act which limits its application to an order, rule, etc. "so far as it is not inconsistent with the provisions re enacted".
This does not mean that statutory instruments made under the old Code and which are inconsistent with the provisions of the new Code continue to be effective.
All that Section 484(2) (b) says is that such statutory instruments shall be deemed to be made under the corresponding provisions of the new Code.
Their validity will have to be tested like any other statutory instruments made under the provisions of the new Code and they will have to answer the test whether they are consistent with the provisions of the new Code.
But, in the case of Judicial orders made and sentences passed such orders and sentences which have attained finality and which have created rights in parties do not have to answer the test of being consistent with the provisions of the new Code.
We, therefore, hold that the order for maintenance made in favour of the respondent must be deemed to be an order made under Section 125 of the new Code and that it does not automatically cease to be effective on the coming into force of the new Code.
The High Court arrived at this conclusion and thought that it was sufficient to hold in favour of the respondent and to allow the Revision Application.
We do not think that the High Court was right in stopping there.
The High Court should have further considered the question whether the order for maintenance which was deemed to be an order under Section 125 of the new Code could not be cancelled under the provisions of Section 127 of the new Code.
Once the, order under Section 488 is deemed to be an order under Section 125 of the new Code, it must be so deemed for all purposes including the application of Section 127 of the new Code.
Section 127 provides for consequential orders upon proof of a change in the circumstance of any person (1) (1878) L.R. 4 l. 543.
291 receiving, under Section 125, a monthly allowance, or ordered under the A same Section to pay a monthly allowance to his wife, child, father or mother, as the case may be.
The admitted attainment of majority of the respondent and the change of the law were surely circumstances which entitled the appellant to have the order in favour of the respondent cancelled.
We accordingly allow the appeal and set aside the judgment of the High Court.
B M.R. Appeal allowed.

dataset_name: IN-Abs

summary/full:
Ranbir Singh is Jagir Singh 's son from his separated first wife.
Ill 1971 he and his mother applied for maintenance under section 488 of Cr.P.C., 1898.
Although Ranbir Singh was a major, maintenance was awarded to him on the ground that he was a student unable to maintain himself.
In April 1974, the new Cr.
P.C. came into force, and under section 127 jagir Singh applied for cancellation of the maintenance order, on the ground that the major son WAS not prevented from maintaining himself through any infirmity or abnormality, and is not entitled to maintenance under the new code.
The respondent contended that the maintenance order had been validly passed under the old Code, and continued to remain in force notwithstanding the enactment of the new Code but the Magistrate cancelled the maintenance order, Ranbir Singh 's Revision Application was dismissed by the Sessions Court, on the ground that the order made under section 488 of the Cr.P.C., 1898 would not survive under section 484(2) of the Cr.
P.C. 1974 due to the absence of a corresponding provision under the new Code, enabling his maintenance.
He then applied to the High Court for a Revision.
The High Court allowed the Revision holding that 9. 125 of the Cr.
P.C., 1974 did correspond with section 488 of the Cr.
P.C. 1898.
The appellant contended that Ranbir Singh 's Revision application to the High Court was barred by section 397(3), Cr.P.C., 1974, and was incompetent, and that his right to invoke revisional jurisdiction of a superior court became exhausted when he moved the Sessions Court in Revision.
He further contended that the maintenance order was not saved either by section 484(2), Cr.
P.G 1974 or section 6 and 24 of the General Clauses Act.
The respondent submitted that his Revision application before the High Court could be treated and maintained, as, one directed against the Sessions Judge 's order rejecting his Revision application, or It could be treated as one under article 227 of the Constitution.
Allowing the appeal, the Court.
^ HELD: (1) The power under Act.
227 is discretionary.
The power of judicial superintendence under it could only be exercised sparingly to keep subordinate courts and Tribunals within the bounds of their authority, and not to collect mere errors.
Where the statute banned the exercise of revisional 283 powers by the High Court, it would require very exceptional circumstances to A warrant interference under article 227, since the power of superintendence was not meant to circumvent statutory law.
By the 42nd.
Amendment Act, clause (5) was added in article 227, which is a verbatim reproduction of section 224(2) of the Government of India Act, 1935, conferring powers of administrative superintendence only, and not the power of judicial superintendence.
[287F H, 288A] (2) In the Cr.
Of 1974 the District Magistrate is divested of his revisional jurisdiction over inferior criminal courts.
In addition, there are two important changes apparently designed to avoid delay and to secure prompt justice.
The first change is introduced by section 397(2) which bars the exercise of revisional power in relation to any interlocutory order passed in any appeal, enquiry, trial or other proceeding.
The second change is introduced by section 397 (3) under which any person aggrieved by an order of an inferior criminal court, is given the option to approach either the Sessions Judge or the High Court, and once he exercises the option, he is precluded from invoking the revisional jurisdiction of the other authority.
The object is, to prevent a multiple exercise of revisional powers and to secure early finality to orders.
[286C F] For vs Bishop of Chestor, ; ; Maxwell (11th Edn. page 109); applied.
(3) Whenever an Act is repealed and re enacted, there are bound to be changes and modifications.
To say that a modified provision dealing with the same subject matter in substantially the same manner as the original provision is not a "corresponding provision", would be to practically nullify the effect of a "Repeal and Savings" provision like section 484 (2) (b) of the new Code.
"To correspond" does not usually, or properly, mean to be identical with but to harmonise with, or to be suitable to.
There are no words in section 484 (2) (b) limiting its application to orders made, and sentences passed, which are not inconsistent with the provisions of the new Code.
All that section 484(2)(b) says is that such statutory instruments shall be deemed to be made under the corresponding provisions of the new Code.
Their validity will have to be tested like any other statutory instrument made under the provisions of the new Code.
There validity will have to be tested like any other statutory made under the provisions of the with the provisions of the new Code.
and they will have to answer the test whether they are inconsistent with the provisions of the new Code.
But in ease of judicial orders made, and sentences passed, such orders and sentences which have attained finality and which have created rights in parties, do not have to answer the test of being consistent with the provisions of the new Code.
[289F H, 290B E] Butterworth 's (Words and Phrases legally defined)(2nd Edn Vol.
I), Shorter oxford English Dictionary (3rd Edn.
I); Sackville West vs Holmsdale (Viscount), [1870] LR. ; applied.
(4) Section 125 of the new Code corresponds to section 488 of the Cr.P.C., 1898 notwithstanding the fact that under the Cr.P.C. Of 1974, a child who has attained majority, and who does not suffer from any infirmity, is not entitled to be maintained b`y the father.
Once an order under section , is deemed to be an order under section 125 of the Cr.
P.C. 1974, it must be to deemed for all purposes, including the application of section 127 of the new Code.
[290B, G] 20 817 SCI/78 284 Nanak Chand vs Chandra Kishore Aggarwal & Ors., ; ; referred to.


judgement:
N: Criminal Appeal No. 124 of 1972 350 Appeal by Special Leave from the Judgment and order dated 24 11 1971 of the Delhi High Court in Criminal Appeal No.54 of 1971.C. P. Lal for the Appellant.
H. R. Khanna and M. N. Shroff for the Respondent.
The Judgment of the Court was delivered by DESAI, J.
The; appellant in this appeal by special leave limited to the determination of the question: whether the sanction is valid in law or not, has been convicted for offences under section 5(2) read with section S(1) (d) of the Prevention of Corruption Act, 1947 ( 'Act ' for short), and section 161 of the Indian Penal Code, and was sentenced to suffer rigorous imprisonment for 18 months on each could and a fine of Rs. 2000/ , in default to suffer further rigorous imprisonment for a period of two months, for an offence under section 5(2) of the Act.
His appeal being Criminal Appeal No. 54 of 1971 was dismissed by the High Court of Delhi and the conviction and sentence were confirmed.
As the leave is limited to the question of the validity of sanction ac corded under section 6 of the Act, it is not necessary to set out in detail the prosecution case.
Briefly stated, the prosecution case is that the appellant who was employed at the relevant time as Investigator in the office of the Chief Controller of Imports & Exports (C.C.I.E. for short), accepted from one P.T. Toprani an amount of Rs. 250/ by way.
of illegal gratification which was not his legal remuneration in presence of witnesses on 18th June 1969 at about 5.30 p.m. near Gujarati Samaj; Sabha, Delhi.
D. section P. Badri Sharma appeared as soon as the trap arranged by him materialised and recovered the amount of Rs. 2501/ from the appellant.
After completing the investigation the appellant was charge sheeted for the offences hereinabove mentioned.
Section 6 of the, Act forbids the Court from taking cognizance, inter alia, of offences punishable under section 161, IPC and under sub section
(2) of s 5 of the Act except with the previous sanction of the authority therein set out.
Necessary sanction was accorded by the Jt.
C.C.I.E.
On 26th November 1969.
The relevant portion of the sanction reads as under: "Now, therefore, I, section P. Chablani, being the authority competent to remove the said Shri L. section Srivastava, from office do hereby accord sanction under section 6(1) (c) of the prevention of Corruption Act, 1947 for the prosecution of the said Shri L. section Srivastava, for the said offences under section 161, I.P.C. and 5(2) read with 5(1)(d) of Act II of 1947 and in 351 any other offence punishable under the provisions of law, in respect of the facts aforesaid and for the taking of cognizance of the said offences by a court of competent jurisdiction".
Mr. H. R. Khanna, learned counsel who appeared for the respondent raised a preliminary objection.
It was urged that the appellant died during the pendency of this appeal and, therefore, the appeal abates and cannot be proceeded with.
Simultaneously it was urged that if the appeal were not to abate on the only ground that the appellant was also sentenced to pay a fine of Rs. 200/ and, therefore.
it may he said that right to property of the legal representatives may he adversely affected and, therefore, they would be entitled to continue the appeal, the respondent State is prepared to concede that the sentence of fine may be set aside.
Section 394 of the Criminal Procedure Code which provides for abatement of appeals reads as under: "394.
(1) Every appeal under section 377 or section 378, shall finally abate on the death of the accused.
(2) Every other appeal under this Chapter (except all appeal from a sentence of fine) shall finally abate on the death of the appellant: Provided that where the appeal is against a conviction and sentence of death or of imprisonment, and the appellant dies during the pendency of the appeal any of his near relatives may, within thirty days of the (death of the appellant, apply to the Appellate Court for leave to continue to the appeal; and if Leave is granted, the appeal shall not abate.
Explanation In this section, "near relative" means a parent, spouse, lineal descendant, brother or sister".
The appeal by the appellant is not one under section 377 or section 378 or the Cr.
P.C. and, therefore, sub section
(1) of section 394 will not be attracted The trial for an offence under section 161 IPC and section 5(2) of the Act would be governed by the provisions of Criminal Law Amendment Act, 1952.
lt envisages setting up of Court of special Judge.
Section 8(3) of the Criminal Law Amendment Act provides that the Court of Special Judge shall be deemed to be a Court of Sessions.
Section 9 confers power upon the High Court to exercise all powers of appellate Court as if the Court of Special Judge were a Court of Sessions trying cases within the local limits of the jurisdiction of the High Court.
352 The present case would, therefore, be governed by sub section (2) of s.394, Cr.
P.C. It becomes clear from the proviso to section 394(2), Cr.
P.C. that where the appeal is against the conviction and sentence of imprisonment and the appellant dies during the pendency of the appeal, any of his near relatives may, within the time prescribed therein, apply to the appellate court before which the appeal is pending for leave to continue the appeal and if the leave is granted the appeal shall not abate.
The appellant has preferred the appeal against his conviction and sentence of imprisonment as also sentence of fine.
After his death his near relations as contemplated in the Explanation to sub section
(2) of section 394, Cr.
P.C. applied by Criminal Miscellaneous Petition No. 559 of 1978 to continue the appeal and this Court granted substitution of such near relations by its order dated 28th March 1978 and thereby granted leave to continue the appeal.
Therefore, the near relations of the deceased can continue the appeal and even if the respondent State concedes that the sentence of fine be set aside yet the appeal would not abate because the appeal against conviction and sentence of imprisonment would not abate if leave is granted to the near relations of the deceased to continue the appeal.
Such Leaving having been granted, the appeal would not abate.
There is thus no merit in the preliminary objection and it must be negatived.
Section 6 of the Act which provides for necessity of previous sanction for prosecution for any of the offences under the Act reads as.
under: "6.
(1) No court shall take cognizance of an offence punishable under section 161 ( or section 164) or section 1165 of the Indian Penal Code, or under sub section (2) or Sub section (3A) of section 5 of this Act, alleged to have been committed by a public servant, except with the previous sanction, (a) in the case of a person who is employed` in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the State Government, of the Central Government.
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the Central Government, of the State Government.
(c) in the case of any other person, of the authority competent to remove him from his office.
(2) Where for any reason whatsoever any doubt arises whether the previous sanction as required under sub section 353 (1) should be given by the Central or State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed".
Mr. Lal for the appellant contended that as the appellant was an Investigator in the office of the C.C.I.E. which at best was a Department under the over all control of the Ministry of Foreign Trade and Supply.
Government of India, the sanction to prosecute him could only be given by the Government of India.
In the alternative it was contended that as the C.C.I.E. is head of the office, he alone could accord sanction for prosecution as contemplated by section 6 and, therefore.
the sanction accorded by Jt.
C.C.I.E., an officer subordinate to C.C.I.E .
was ab initio void and the Court could not have taken cognizance of the offence.
Mr. Khanna for the respondent on the other hand contended that this case would be governed by Central Civil Services (Classification, Control and Appeal Rules, 1965 ( '1965 Rules ' for short), and in view of S.R.O. 631 issued by the President in exercise of the powers D` conferred by sub rule (2) of rule 11, clause (b) of sub rule (2) of rule 14, and sub rule (2) of rule 23 of the Central Civil Services (Classification, Control and Appeal) Rules, 1957 ( '1957 Rules ' for short), which order was saved by rule 34 of the 1965 Rules and, therefore, the Jt.
C.C.I.E. was both the appointing and disciplinary authority including the authority competent to remove the appellant from service and was accordingly competent to accord sanction under section 6(1)(c) of the Act.
Rule 11(2) of 1957 Rules provides that all appointments to Central Civil Posts, classes II, III and IV, included in the General Central Service shall be made by the authorities specified in that behalf by a general or special order of the President, or, where no such order has been made, by the authorities specified in the Schedule appended to the Rules.
Similarly, rule 14(1) provides that the President may impose any of the penalties including one of removal or dismissal from service as envisaged by rule 13 on any Government servant.
Sub rule (2) of rule 14 provides that without prejudice to the provisions of sub rule (1), any of the penalties specified in rule 1 may be imposed under sub clause (b) in respect of person appointed to a Central Civil post included in the General Central Services by the authority specified in this behalf by a general or special order of the President or where no such order has been made by the appointing authority or the authority specified in the Schedule in this behalf.
The entry at p. 38 provides that the appointing and disciplinary authority in respect of posts in non Secretariat offices other than posts in respect of which specific provision has been made by a general or special order 354 of the President, the head of office would be both the appointing and the removing authority.
Now, undoubtedly in respect of the office of the C.C.I.E., the C.C.I.E. would be the head of office.
The office of the C.C.I.E. is a non Secretariat office.
May be, the administrative department in respect of this office would be the Ministry of Foreign Trade and Supply.
But C.C.I.E. is a separate office with its own establishment and undoubtedly head of office would be the C.C.I.E.
The President in exercise of the power conferred by sub rule (2) of rule 11 and clause (b) of sub Rule (2) of rule 14 of the 1957 Rules has made a special order as contemplated by rule 11(2) and rule 14(2)(b) as under: "S.R.O. 631 In exercise of the powers conferred by sub rule (2) of rule 11, clause (b) of sub rule (2) of rule 14 and sub rule (1) of rule 23 of the Central Civil Services Classification, Control and Appeal) Rules, 1957, The President hereby directs that (1) in respect of the posts in the General Central Service, Class II specified in column 1 of Part I of the Schedule to this order, the authority specified in column 2 shall be the Appointing Authority and the authority specified in column 3 shall be the Disciplinary Authority in regard to the penalties specified in column 4, (2) in respect of the posts in the General Central Service.
Class III and the General Central Service, Class II specified in column 1 of Parts II and III of the said Schedule, the authority specified in column 2 shall be the Appointing Authority ! and the authority specified in column 3 and 5 shall be the Disciplinary Authority and Appellate Authority respectively in regard to the penalties specified in column 4".
A comprehensive Schedule is annexed to this order. 'The relevant entry is as under: Description of Post Appointing Authority competent Appellate authority to impose penalties authority penalties which it may impose (with reference to item numbers in rule 13) Authority Penalties 1 2 3 4 5 Organisation of the Chief Controller of Imports and Exports All posts in Headquarters office Joint Chief Joint Chief All Chief Controller of Controller ofController of Imports & Imports & Imports & Exports Exports Exports 355 The entries in the Schedule appended to 1957 Rules will be effective and operative subject of course to any general or special order made by the President in this behalf.
It was, however, contended that by rule 34 of 1965 Rules, 1957 Rules were repealed and, therefore, the order issued by the President in exercise of the powers conferred by sub rule (2) of rule 11 and various other rules bearing on the point would stand repealed and the order of the President would not be effective unless a similar order is issued by the President under the corresponding rule 12 of 1965 Rules.
Rule 12(1) and (2) of 1965 Rules is in pari materia with rule 14 of 1957 Rules.
Rule 12 of 1965 Rules confers power on the President to impose any of the penalties specified in rule 11 on any Government servant.
Sub rule (2)(b) provides that any person appointed to a Central Civil Post included in the General Central Service by the authority specified in this behalf by a general or special order of the President or where no such order Has been issued, by the appointing authority specified in the Schedule in this behalf, may impose any of the penalties specified in rule 11 which includes the penalty or removal from service.
Therefore, the President has the power to issue any general or special order to confer power to impose penalties as specified in rule II on any authority other than the one specified in the Schedule in this behalf.
Now, if the order issued by the President, S.R.O. 631 under corresponding rule l l and the relevant rules bearing on the subject of 1957 Rules is not shown to be inconsistent with any of the Rules included in 1965 Rules.
obviously such order would be saved Tender rule 34.
No inconsistency was shown to us as contemplated by rule 34.
Therefore, indisputably the order issued by the President, S.R.O. 631 along with the Schedule would be saved.
Once S.R.O. 631 is saved, the relevant entry hereinabove quoted in respect of the organisation of C.C.I.E. would be saved.
Accordingly the entry in the order issued by the President would supplant the corresponding entry in 1965 Rules and would have to be substituted for the entries in the relevant item in the Schedule.
The necessary consequence would be that in the case of the organisation of the C.C.I.E. for all posts in Headquarters office, Jt.
C.C.I.E. would be both the appointing and the disciplinary authority having the power to remove from service such persons belonging to Class III services.
Now, the appellant was indisputably holding a post in Class III service in the Headquarters office of the organisation of C.C.I.E.
He was at the relevant time holding, the post of Investigator which was admittedly a Civil post in Class III service in the office of C.C.I.E.
Indisputably, therefore, Jt.
C.C.I.E. would be both the appointing and disciplinary authority with power to remove him from service.
Therefore, Jt.
C.C.I.E. would be competent to accord sanction as envisaged by section 6(1)(c) of the Act.
Sanction 356 in this case having been granted by the Jt.
C.C.I.E., it was valid.
There is thus no substance in the contention of Mr. Lal.
Mr. Lal in this connection drew our attention to a decision in R. J. Singh Ahluwalia vs The State of Delhi(1) The appellant in that case was at the relevant time working as Assistant in Co ordination III of D.G.T.D. at Udyog Bhavan, New Delhi.
His contention was that sanction accorded by Shri K. Rajaram, Deputy Secretary to Government of India in the Ministry of Industrial Development and Company Affairs (Department of Industrial Development) was not valid and that he could only have been prosecuted under a sanction that may be accorded by the Home Ministry.
In respect of this contention it was conceded on behalf of the State that in the absence of such sanction the prosecution must fail.
The judgment proceeds on concession and not on any analysis or examination of the relevant provisions.
Therefore it in no way helps the appellant in this case.
This being the only point that could be raised in this appeal by limited leave and such contention being without merit, the appeal fails.
and is dismissed.
As the appellant is dead there is no question of his surrendering to Bail.
S.R. Appeal dismissed.
(1) A.I.R. 1971 S.C. 1552.

summary/full:
The appellant who was working as an investigator in the office of the Chief Controller of Imports and Exports was charged, found guilty and convicted and sentenced to suffer rigorous imprisonment for 18 months on each count for an offence under Sections 5(1) (d) and 5(2) of the Prevention OF Corruption Act, 1947 and section 161 I.P.C. and a fine of Rs. 200/ or in default to undergo further rigorous imprisonment under section 5(2) of the Act.
His appeal to the High Court was dismissed and the conviction and sentence were confirmed.
Special leave was granted by the Supreme Court limited to the question.
Of validity of sanction accord under section 6 of the Prevention of Corruption Act, 1947.
The appellant died during the pendency of the appeal and his near relatives were granted permission to continue the appeal.
Dismissing the appeal, the.
Court ^ HELD 1.
The preliminary objection of the State as to the abatement of the appeal because of the death of the appellant taking into account preparedness to conclude that the sentence might he set aside must be negatived.
[352D] (a) As per the proviso to section 394(2) of the Criminal Procedure Code, 1973, where the appeal is against the conviction and sentence of imprisonment and the appellant dies during the pendency of the appeal, any of his near relatives may, within the time prescribed therein, apply to the appellate Court before which the appeal is pending for leave to continue the appeal and if the leave is granted the appeal shall not abate.
[352A B] (b) The appellant, in the, instant case, has preferred the appeal against his conviction and sentence of imprisonment and also sentence of fine.
After his death his near relatives as contemplated in the Explanation to sub section (2) of section 394 Crl.
P.C., applied to continue the appeal and were granted leave to continue the appeal.
Therefore, the near relations of the deceased can continue the appeal and even if the respondent State concedes that the sentence of fine be set aside yet the appeal would not abate if leave is granted o the near relation of the deceased to continue the appeal.
[352C D] 349 2. 'The sanction accorded, for prosecution of the appellant under section 6 of the Prevention of Corruption Act, 1947 by the Joint Chief Controller of Imports and Exports is valid in law: [355H, 356A] (a) The instant case is governed by Central Civil Services (Classification, Control & Appeal) Rules, 1965 and in view of S.R.O. 631 issued by the President, in exercise of the power conferred by sub rule (2) of rule 11, clause (b) of sub rule (2) of rule 14, and sub rule (2) of rules 23 of the Central Civil Services (Classification, Control & Appeal) Rules, 1957, which order was saved by rule 34 of the 1965 Rules.
[353C D] (b) Rule 12(1) and (2) of 1965 Rules is in pari materia with rule 14 of 1957 Rules.
Rule 2 of 1965 Rules confers power on the President to impose any of the penalties specified in rule 11 on any Government servant.
Sub rule (2) (b) provides that any person appointed to a Central Civil Post included in the General Central Service by the authority specified in this behalf by a general or special order of the President or where no such order has been issued, by the appointing authority specified in the Schedule in this behalf, may impose any of the penalties specified in rule 11 which includes the penalty of removal from service.
Therefore, the President has the power to issue any general or special order to confer power to impose penalties as specified in rule 11 on any authority other than the one specified in the Schedule in this behalf.
If the order issued by the President.
S.R.O. 631 under corresponding rule 11 and the relevant rules bearing on the subject of 1957 Rules is not shown to be inconsistent with any of the Rules included in 1965 Rules, obviously such order would be saved under rule 34.
There being no inconsistency as contemplated by Rule 34, indisputably the order issued by the President S.R.O. 631 along with the schedule would be saved.
Once S.R.O. 631 is saved, the relevant entry in the schedule in respect of the origination of C.C.I.E. would be saved.
Accordingly the entry in the order issued by the President would supplant the corresponding entry in 1965 Rules and would have to be substituted for the entries in the relevant item in the Schedule.
The necessary consequence would be that in the case of the organization of The C.C.I.E. for all posts in Headquarters office, lt. C.C.I.E. would be both the appointing and the disciplinary authority having tho power to remove from service such persons belonging to Class III services.
Now, the appellant was indisputably holding a post in Class III service in the Headquarters office of the organisation of C.C.I.E.
He was at the relevant time holding the post of Investigator which is admittedly a Civil Post in Class III service in the office of C.C.I.E.
Indisputably, therefore.
C.C.I.E. would be both the appointing and disciplinary authority with power to remove him from service.
Therefore, Jt.
C.C.I.E. would be competent to accord sanction as envisaged by section 6(1)(c) of the Act.
[355B H] The fact that the administrative department in respect of the office of C.C.I.E. is the Ministry of Foreign Trade & Supply does not make any difference because C.C.I.E. is a separate office with its own establishment.[1354A] R. J. Singh Ahluwalia vs State of Delhi, A.L.R. ; distinguished.