judgement:
vil Appeal No. 3 165 of 1991.
From the Judgment and Order dated 9.8.90 of the Rajas than High Court in W.P. No. 2009/90.
V.A. Bobde, and Mrs. Rani Chhabra for the Appellant.
504 Satish Kr.
Jain and Mrs. Pratibha Jain for the Respondents.
The Judgment of the Court was delivered by SINGH, J.
Special leave granted.
This appeal is directed against the judgment and order of the High Court of Rajasthan dated 9.8.
1990 dismissing the appellant 's writ petition made under Article 226 of the Constitution challenging the scheme for nationalisation of the route in dispute.
The appellant holds a Stage Carriage Permit for plying his vehicle on the Kota Khanpur route, which overlaps a portion of the KotaSangod route.
The Rajasthan State Road Transport Corporation, Jaipur issued a Notification on 11.10.
1979 proposing a scheme under Section 68 C of the (hereinafter referred to as the 'old Act ') for the exclusive operation of the vehicles of the State Road Transport Corporation on the Kota Sangod route.
The existing operators as well as the affected opera tors of the route filed their objections before the hearing authority appointed by the State Government of Rajasthan.
The hearing authority after considering those objections approved the scheme under Section 68 D (2) of the old Act by its order dated 30.11.
1984 and submitted the papers to the State Government for the issue of Notification under Section 68 D (3).
Before the State Government could issue Notifica tion under Section 68 1) (3) of the old Act, the appellant and other affected operators made representation to the Minister for Transport for affording them a fresh opportuni ty of hearing.
As a result of which no final Notification under Section 68 D (3) could be issued.
Meanwhile, the (hereinafter referred to as the new Act) was enforced with effect from 1.7. 1989 and the old Act was repealed.
The appellant thereupon filed a writ petition before the High Court under Article 226 of the Constitution for the issue of Mandamus restraining the State Government from issuing the final Notification, mainly on the ground that on the enforcement of the new Act, the Notification dated 11.
1979 issued under Section 68 C of the old Act had lapsed on account of delay in finalisation of the same.
A similar writ petition had been filed earlier in respect of Kishangarh Sarwad route by one Sardar Mohd. on similar grounds.
A learned single Judge of the High Court dismissed that writ petition holding that the draft scheme under the old Act was saved by the new Act and the same could legally be finalised under the provisions of the new Act.
Sardar Mohd. filed a Letters Patent Appeal against the judgment of the learned single Judge.
A 505 Division Bench of the High Court disposed of the Letters Patent Appeal of Sardar Mohd. as well as the various writ petitions including that of the appellant by a common order dated 9.8.
1990 impugned in the present appeal.
After the impugned judgment of the High Court, the State Government approved the Scheme as proposed under 68 C of the old Act.
Final notification approving this Scheme was pub lished in the Official Gazette on 29.8.1990 u/s 100(3) of the new Act, as a result of which the Kota Sangod route has become a notified route, consequently the appellant has no right to ply his vehicle on the overlapping portion of that route.
Learned counsel for the appellant urged that since there was undue delay of 11 years in issuing the final Notifica tion, the scheme as proposed under Section 68 C of the old Act should be deemed to have lapsed and the State Government had no authority or jurisdiction to finalise the same or to issue Notification under Section 100(3) of the new Act.
He placed reliance on a number of decisions of this Court in support of his contention that unreasonable delay in fina lising a scheme proposed under Section 68 C of the old Act rendered the same illegal.
He referred to the decisions of this Court in Yogeshwar Jaiswal etc.
vs State Transport Appellate Tribunal & Ors., AIR 1985 SC 5 16; Onkar Singh & Ors.
vs Regional Transport Authority, Agra & Ors., ; ; Devki Nandan vs State of Rajasthan & Ors., and Srichand vs Government of U.P., [1985] 4 SCC 169.
No doubt in these decisions the Court quashed the schemes proposed under Section 68 C of the old Act on the ground of inordinate delay for which there was no valid explanation.
In the instant case, the proposed scheme had been approved by the hearing authority under Section 68 D (2) of the old Act in 1984 within five years of the proposal of the scheme but when the matter was placed before the State Government for issue of final Notification Under Section 68 D (3) of the old Act, the appellant and other affected operators approached the Minister for Transport and stalled the issue of final Notification as a result of which delay was caused.
The appellant was himself responsible for the delay therefore he is not entitled to complain of the delay.
Moreover this Court has not ruled in the aforesaid decisions, or in any other decision that delay would auto matically render the scheme illegal.
Since under the old Act no time frame was prescribed for finalising a scheme penal consequences could not ensue.
Under the old Act a scheme proposed u/s 68 could continue to remain in force till it was quashed.
Since the scheme proposed on 11.10.1979 had not been 506 quashed by any Court, the same continued to be in force on the date of commencement of the new Act.
In the absence of any provision in the old Act rendering the scheme ineffec tive on the ground of delay, the scheme proposed u/s 68 C of the old Act could not lapse ipso facto.
Moreover, now the State Government has already issued final Notification under Section 100(3) of the new Act on 29.8.
1990, as a result of which the route has been notified.
In this view ratio of the aforesaid decisions of the Court are not applicable to the instant case at this stage.
Learned counsel for the appellant urged that under Section 100(4) of the new Act, if a draft scheme is not finalised and the final notification is not issued within one year from the date of the publication of the proposed scheme, the same would lapse.
Since in the instant case the draft scheme dated 11.10.1979 was not finalised under Sec tion 100(3) of the new Act the same had lapsed after one year from the date of the notification issued u/s 68 C of the old Act.
In order to appreciate this contention it is necessary to consider the relevant provisions of the new Act.
Chapter VI of the new Act contains special provisions relating to State Transport Undertakings.
Section 99 confers power on the State Government to propose a scheme for oper ating the vehicles of the State Transport Undertakings to the exclusion of other persons.
The proposed scheme is published in the Gazette.
Section 100 which provides for filing of the objections before the State Government and the issue of final notification, is as under: "100.
Objection to the proposal (1) on the publication of any proposal regard ing a scheme in the Official Gazette and in not less than one newspaper in the regional language circulating in the area or route which is to be covered by such proposal any person may, within thirty days from the date of its publication in the Official Gazette, file objections to it before the State Govern ment.
(2) The State Government may, after consider ing the objections and after giving an oppor tunity to the objector or his representatives and the representatives of the State Transport Undertaking to be heard in the matter, if they so desire, approve or modify such proposal.
(3) The scheme relating to the proposal as approved or 507 modified under sub section (2) shall be pub lished in the Official Gazette by the State Government making such scheme and in not less than one newspaper in the regional language circulating in the area or route covered by such scheme and the same shall thereupon become final on the date of its publication in the Official Gazette and shall be called the approved scheme and the area or route to which it relates shall be called the notified area or notified route: Provided that no such scheme which relates to any interState route shall be deemed to be an approved scheme unless it has the previous approval of the Central Government.
(4) Notwithstanding anything contained in this section, where a scheme is not published as an approved scheme under sub section (3) in the Official Gazette within a period of one year from the date of publication of the proposal regarding the scheme in the Official Gazette under sub section (1), the proposal shall be deemed to have lapsed.
Section 100 provides for filing of objections before the State Government within 30 days from the date of the publi cation of the proposed scheme in the Official Gazette.
Under sub section (2) the State Government may approve or modify the proposed scheme after considering the objections and hearing the objectors.
Under sub section (3) the State Government is required to publish the approved scheme in the Official Gazette and also in one newspaper.
On the publica tion of the approved scheme in the Official Gazette, the area or route to which it relates shall be called the noti fied area or notified route.
Sub section (4) lays down that if a scheme is not published as an approved scheme in the Gazette within one year from the date of publication of the proposed scheme in the Official Gazette, the proposed scheme shall be deemed to have lapsed.
Sub section (4) in our opinion prescribes a period of limitation during which the State Government should hear and consider the objections of the objectors and finalise the scheme and publish the same in the Official Gazette and on its failure to do so with in that period, penal consequences would ensue as a result of which the scheme itself shall stand lapsed.
The object and purpose of Section 100(4) is to avoid delay in finalising a scheme.
The Parliament was aware that under the old Act schemes were not 508 finalised for long years as a result of which public inter est suffered, therefore, it prescribed a time frame for the approval and publication of schemes.
The provisions of Section 100 are applicable to the schemes proposed under the new Act.
The question is whether it would apply to a scheme proposed under Section 68 C of the old Act.
The Legislature was conscious that a number of schemes proposed under the old Act were pending approval on the date of the commencement of the Act, it therefore made a provision for saving those schemes by enacting Section 2 17 of the Act, which is as under: "217.
Repeal and savings (1) The Motor Vehi cles Act, 1939 (4 of 1939) and any law corre sponding to that Act in force in any State immediately before the commencement of this Act in that State (hereinafter in this Section referred to as the repealed enactments) are hereby repealed.
(2) Notwithstanding the repeal by sub section (1) of the repealed enactments (a) any notification, rule, regula tion, order or notice issued, or any appoint ment or declaration made or exemption granted, or any confiscation made, or any penalty or fine imposed, any forfeiture cancellation or any other thing done, or any other action taken under the repealed enactments, and in force immediately before such commencement shall, so far as it is not inconsistent with the provisions of this Act, be deemed to have been issued, made, granted, done or taken under the corresponding provision of this Act; . . . . . . . . . . . . . (e) any scheme made under section 68 C of the (4 of 1939) or under the corresponding law, if any, in force in any State and pending immediately before the commencement of this Act shall be disposed of in accordance with the provisions of section 100 of this Act; (f) the permits issued under sub section (I A) of section 68 F of the (4 of 1939), or under 509 the corresponding provisions, if any, in force in any State immediately before the commence ment of this Act shall continue to remain in force until the approved scheme under Chapter VI of this Act is published. . . . . .
Under sub section (1) the old Act has been repealed but under subsection (2) inspite of repeal the Parliament has made provisions for saving the schemes proposed under Sec tion 68 C of the old Act.
Clause (e) of Section 217 (2) of the new Act provides that notwithstanding the repeal of the old Act a scheme proposed under Section 68 C of the old Act, if pending immediately before the commencement of the Act shall be finalised in accordance with the provisions of Section 100 of the new Act.
The Legislative intent is clear that the.
schemes proposed under Section 68 C. of the old Act pending on the date of the commencement of the new Act should not lapse instead those schemes should be finalised in accordance with the provisions of Section 100 of the new Act.
The pending schemes were therefore saved and the same were to be finalised within one year as contemplated by Section 100 (4) of the new Act.
Section 100 (4) lays down that if the proposed scheme is not finalised within one year from the date of its publication in the Official Gazette, it shall be deemed to have lapsed but that applies to a scheme proposed under the new Act and not to a scheme proposed under Section 68 C of the old Act.
If the period of one year from the date of the publication of the proposed scheme is applied to the pending schemes under Section 68 C of the old Act, the purpose and object of saving the old schemes under Clause (e) of Section 2 17 (2) of the new Act would be frustrated.
Learned counsel for the appellant urged that since Section 17(2)(e) provides for the finalisation of a pending scheme published under the old Act in accordance with the provi sions of Section 100 of the new Act, the period of limita tion of one year prescribed under sub section (4) of that section would also apply.
He further urged that since period of one year had already expired from the date of the publi cation of the scheme under Section 68 C of old Act, the scheme automatically lapsed and the same could not be final ly published under Section 100 of the Act.
If the appellant 's contention is accepted the schemes published under Section 68 C of the old Act would lapse after the expiry of the period of one year from the date of the publication of the scheme in 510 the Official Gazette in accordance with the provisions of the old Act.
On the other hand we find that Section 2 17(2)(e) permits finalisation of a scheme published under Section 68 C of the old Act if the same was pending on the date of the commencement of the new Act.
The old Act did.
not provide any period of limitation consequently a number of schemes published under Section 68 C of the old Act were pending on the date of commencement of the new Act although a period of one year had already expired.
If the Parliament intended to apply the limitation of period of one year to the pending schemes published under Section 68 C of the old Act, the new Act could have made provisions to that effect.
On the contrary Section 217(2)(e) has been enacted to save the schemes published under Section 68 C of the old Act which were pending on the date of the commencement of the Act with a further direction that the same shall be fina lised in accordance with Section 100 of the Act.
Sub section (4) of Section 100 provides that where a scheme is not published as approved under sub section (3) within period of one year from the date of publication of the proposal in the Official Gazette under sub section (1), the proposal shall be deemed to have lapsed.
A scheme published under Section 68 C of the old Act pending on the date of commencement of the Act could not be a scheme proposed under sub section (1) of Section 100, therefore, the rigour of period of one year as applicable to a scheme proposed under sub section (1) of Section 100 could not apply to a scheme under Section 68 C pending on the date of commencement of the Act.
It was not meant that a scheme u/s 68 C of the old Act pending on the date of commencement of the new Act may be approved or finalised with leisure without any time limit.
There appears to be some apparent conflict between Section 100(4) and Section 217(2)(e) of the Act.
While Section 217(2)(e) permits finalisation of a scheme in ac cordance with Section 100 of the new Act sub section (4) of Section 100 lays down that a scheme if not finalised within a period of one year shall be deemed to have lapsed.
If the appellant 's contention is accepted then Section 217(2)(e) will become nugatory and no scheme published under Section 68 C of the old Act could be finalised under the new Act.
On the other hand if the period of one year as prescribed under Section 100(4) is not computed from the date of publication of the scheme under Section 68 C of the old Act and instead the period of one year is computed from the date of com mencement of the Act both the provisions could be given full effect.
It is settled principle of interpretation that where there appears 511 to be inconsistency in two sections of the same Act, the principle of harmonious construction should be followed in avoiding a head on clash.
It should not be lightly assumed that what the Parliament has given with one hand, it took away with the other.
The provisions of one section of stat ute cannot be used to defeat those of another unless it is impossible to reconcile the same.
In Venkataramana Devaru vs State of Mysore, AIR 1958 SC 225 at p. 268, this Court observed: "The rule of construction is well settled that when there are in an enactment two provisions which cannot be reconciled with each other, they should be so interpreted that, if possi ble, effect should be given to both.
This is what.
is known as the rule of harmonious construction.
" The essence of harmonious construction is to give effect to both the provisions.
Bearing these principles in mind it is legitimate.
to hold that Section 100(4) prescribed period of limitation of one year in respect the scheme proposed under the provisions of the new Act, while in they case of a scheme under Section 68 C of the old Act, pending on the date of enforcement of the new Act, namely, 1.7. 1989, the period one year as prescribed under Section 100(4) should be computed from the date of commencement of the new Act.
This interpretation would give full effect to both the Sections Section 100(4) and Section 2 17(2)(e) of the new Act.
Learned counsel for the appellant placed reliance on a Division Bench decision of the Allahabad High Court in Santosh Kumar & Ors.
vs Regional Transport Authority, CMWP No. 2 1773/89, decided on 16th March, 1990.
In that case a Division Bench of Allahabad High Court held that a draft scheme under Section 68 C of the old Act published in 1986 shall be deemed to have lapsed on the date of the enforce ment of the new Act in view of the absolute prohibition contained in Section 100(43 of the new Act against the continuance of any scheme after one year.
We have gone through the judgment of the Division Bench carefully but in our opinion the view taken by the High Court of Allahabad is unsustainable in law.
The learned Judges constituting the Bench failed to notice the legislative intendment under Section 217(4)(e) of the new Act which kept alive the scheme published under Section 68 C of the old Act for the purposes of being finalised under the new Act.
We are therefore clearly of the opinion that the view taken by the Allahabad High Court is incorrect.
In the instant ease, the appellant had filed a writ petition in May, 512 1990 and obtained an interim order from the High Court restraining the State Government from publishing the final Notification under Section 100(3) of the new Act.
The State Government published the final notification under Section 100(3) of the new Act on 29.8.
1990 after the dismissal of the writ petition by the Division Bench of the High Court.
The period of one year with regard to the pending scheme expired on 1.7.1990 but since the appellant had obtained stay order from the High Court, the State Government could not publish final notification.
Explanation to Section 100(4) of the new Act lays down that in computing the period of one year any period during which the publication of the approved scheme under Section 100 is held up on account of any stay or order of any court, shall be excluded.
On the application of the Explanation the period during which the appellant had obtained stay order against the State Govern ment is liable to be excluded in computing the period of one year.
Admittedly in the instant case stay order passed by the High Court remained in force from May to 9th August, 1990.
On the exclusion of that period the final notification issued by the State Government under Section 100(3) of the new Act on 29.8.1990 was well within the prescribed period.
In view of the above discussion, we are of the opinion that the High Court rightly dismissed the appellant 's writ petition.
The appeal fails and is accordingly dismissed with costs.
V.P.R. Appeal dismissed.

dataset_name: IN-Abs

summary/full:
The appellant held a Stage Carriage Permit for plying his vehicle on the Kota Khanpur route, which overlaps a portion of the KotaSangod route.
The State Road Transport Corporation vide Notification dated 11.10.1979 proposed a scheme under Section 68 C of the for the exclusive operation of its vehicles on the Kota Sangod route.
The affected operators of the route, including the appellant, filed their objections against the scheme before the authority appointed by the State Government which ap proved the scheme.
Before the State Government could issue the final Noti fication under Section 68 D(3) of the old Act, the appellant and other affected operators made representation to the Minister for Transport for affording them a fresh opportuni ty of hearing.
501 Meanwhile, the was enforced with effect from 1.7.1989 repealing the old Act.
The appellant, thereupon, filed a writ petition before the High Court for restraining the State Government from issuing the final Notification on the ground that on the enforcement of the new Act, the Notification dated 11.10.1979 issued under Section 68 C of the old Act had lapsed on account of delay in finalisation of the same.
A similar writ petition had been filed earlier in re spect of Kishangarh Sarwad route by one affected party, on similar grounds.
A learned Single Judge of the High Court dismissed that writ petition holding that the draft scheme under the old Act was saved by the new Act and the same could legally be finalised under the provisions of the new Act.
When he filed a Letters Patent Appeal, the Division Bench dismissed the Appeal as well as the various writ petitions including that of the appellant by a common order, against which the present appeal was made.
After the judgment of the High Court, the final notifi cation was published in the Official Gazette on 29.8.1990 section 100(3) of the new Act.
The appellant, contended before the Court that since there was undue delay of 11 years in issuing the final Notification, the scheme as proposed under Section 68 C of the old Act should be deemed to have lapsed and the State Government had no authority or jurisdiction to finalise the same or to issue Notification under Section 100(3) of the new Act; that since the draft scheme dated 11.10.1979 was not finalised under Section 100(3) of the new Act, the same had lapsed after one year from the date of the notification issued section 68 C of the old Act; and that since period of one year had already expired from the date of the publica tion of the scheme under Section 68 C of old Act, the scheme automatically lapsed and the same could not be finally published under Section 100 of the new Act.
Dismissing the appeal this Court, HELD: 1.1.
The object and purpose of Section 100(4) is to avoid delay in finalising a scheme.
The Parliament was aware that under the old Act schemes were not finalised for long years as a result of which public interest suffered, therefore, it prescribed a time frame for the approval and publication of schemes.
Sub section (4) prescribes a period of limitation during which the State Government should hear 502 and consider the objections of the objectors and finalise the scheme and publish the same in the Official Gazette and on its failure to do so within that period, penal conse quences would ensue as a result of which the scheme itself shall stand lapsed.
[507H 508A, 507F G] 1.2.
The Legislative intent is clear that the schemes proposed under Section 68 C of the old Act pending on the date of the commencement of the new Act should not lapse instead those schemes should be finalised in accordance with the provisions of Section 100 of the new Act.
The pending schemes were therefore saved and the same were to be fina lised within one year as contemplated by Section 100(4) of the new Act.
[509C D] 1.3.
Section 217(2)(e) has been enacted to save the schemes published under Section 68 C of the old Act which were pending on the date of the commencement of the Act with a further direction that the same shall be finalised in accordance with Section 100 of the Act.
[510C ] 1.4.
If the period of one year from the date of the publication of proposed scheme is applied to the pending schemes under Section 68 C of the old Act, the purpose and object of saving the old schemes under Clause (e) of Section 217(2) of the new Act would be frustrated.
[509E F] 2.1.
While Section 217(2)(e) permits finalisation of a scheme in accordance with Section 100 of the new Act, sub section (4) of Section 100 lays down that a scheme if not finalised within a period of one year shall be deemed to have lapsed.
If the period of one year as prescribed under Section 100(4) is not computed from the date of publication of the scheme under Section 68 C of the old Act and instead the period of one year is computed from the date of com mencement of the Act, both the provisions could be given full effect.
[510F H] 2.2.
While in the case of a scheme under Section 68 C of the old Act, pending on the date of enforcement of the new Act, namely, 1.7.1989, the period of one year as prescribed under Section 100(4) should be computed from the date of commencement of the new Act.
[511D E] 2.3.
The appellant was himself responsible for the delay therefore he is not entitled to complain for the delay.
Delay would not automatically render the scheme illegal.
[500G] 2.4.
Since under the old Act no time frame was pre scribed for finalising a scheme penal consequences could not ensue.
Under the old 503 Act a scheme proposed section 68 could continue to remain in force till it was quashed.
[505G H] 2.5.
Since the scheme proposed on 11.10.1979 had not been quashed by any Court, the same continued to be in force on the date of commencement of the new Act.
In the absence of any provision in the old Act rendering the scheme inef fective on the ground of delay, the scheme proposed section 68 C of the old Act could not lapse ipso facto.
[505H 506A] 2.6.
In the instant case stay order passed by the High Court remained in force from May to 9th August, 1990.
On the exclusion of that period the final Notification issued by the State Government under Section 100(3) of the new Act on 29.8.1990 was well within the prescribed period.
[512C D] Yogeshwar Jaiswal etc.
vs State Transport Appellate Tribunal & Ors., AIR 1985 SC 516; Onkar Singh & Ors.
vs Regional Transport Authority, Agra & Ors., ; ; Devki Nandan vs State of Rajasthan & Ors., and Srichand vs Government of U.P., [1985] 4 SCC 169, distinguished.
Santosh Kumar & Ors.
vs Regional Transport Authority, CMWP No. 21773/89, decided on 16th March, 1990, over ruled.
Where there appears to be inconsistency in two sec tions of the same Act, the principle of harmonious construc tion should be followed in avoiding a head on clash.
It should not be lightly assumed that what the Parliament has given with one hand, it took away with the other.
The provi sions of one section of statute cannot be used to defeat those of another unless it is impossible to reconcile the same.
The essence of harmonious construction is to give effect to both the provisions.
Venkataramana Devaru vs State of Mysore, AIR 1958 'SC 225 at p. 268. Followed.


judgement:
ivil Appeal No. 5483 of 1983.
From the Judgment and Order dated 7.10.
1982 of the Madhya Pradesh High Court in M.P. No. 169 of 1982.
R.F. Nariman and P.H. Parekh for the Appellants.
V.N. Ganpule, V.M. Tarkunde, S.K. Agnihotri, S.K. Sinha, Rajinder Narain, R.S. Singh, and Rameshwar Nath for the Respondents.
The appellant, a partnership firm filed the writ petition seeking writ of mandamus and other direction to remove Rajdhani Distilleries Corporation, the 7th respondent in the writ petition in the High Court and 6th respondent in this appeal for short 'respondent ' or his 'servants ' or 'agents ' and to deliver vacant and peace ful possession of U j jain Distillery and warehouses at tached to it and the plant and machinery mentioned in the schedule Annexure P 3 to the writ petition.
It also sought for mandamus or other order to have the valuation of the plant and machinery in Annexure P 3 assessed or direction to return the goods or things described in Annexure P 7 or on its failure to pay a sum of Rs.8,48,179.28 and a mandamus directing the State Govt.
to terminate the licence granted on August 25, 1981 to the respondent and to issue licence to the appellant under section 13 of the M.P. Excise Act, 19 15, for short 'the Act ', etc.
Thus this appeal.
The material facts, to dispose of the point arose in this appeal, lie 482 in a short compass as stated hereunder: In the State of Madhya Pradesh nine distilleries for the manufacture of spirit were established and one of which was situated at Ujjain.
The appellant and its predecessors continuously had licence under sections 13 and 14 of the Act in form D 2 to distil rectified spirit or denatured spirit or liquor and D I licence for wholesale supply of country made liquor in the distillery to retail vendors in the area attached to the distillery.
The licence was for a period of 5 years.
The last licence of which was for the period from April 1, 1977 to March 31.
The normal procedure in vogue was to call for tenders and the lowest was being accepted, though sometimes highest was also preferred.
Next licensing period commenced from April 1, 198 1 to March 31, 1986 and the respondent became the successful tenderer which the appellant impugned in Misc.
Petition No. 701/81 and obtained stay of dispossession from the distillery and the attached warehouses, The interim stay was later vacated and the petition was dismissed on August 20, 198 1.
We may also mention here that the writ petition was also dismissed and the special leave petition was dismissed by this court.
Thus grant of licence to the respondent under D 1 and D 2 li cences became final.
On August 21, 1981 the Officer in Charge of the distillery wrote a letter to the appellant calling upon them to be present on August 22, 1981 to deliv er the distillery, plant, machinery, etc.
to the respondent.
The appellant neither received it nor cooperated to deliver possession of the distillery, etc.
to the respondent.
In stead it locked the distillery and went away.
In the mean while the Excise Department also put their locks on the distillery etc.
On August 27.
1981 the District Excise Officer again called upon the appellant to be present on August 28, 1981 to deliver possession of the distillery, etc.
to the respondent.
But the appellant remained absent.
Consequently possession was taken of the distillery and warehouses, after taking inventory of stock in hand in the presence of the witnesses and the same were handed over to the respondent on August 28, 1981.
The appellant sent a letter on February 23, 1982 valuing the goods taken posses sion of at Rs.8,36,988.61.
On August 8, 1982 the appellant demanded redelivery of the distillery, plant and machinery and warehouses and the value of the stock in trade or pay the amount.
On March 16, 1982 the appellant filed the writ petition in the High Court but was dismissed.
The appellant contended in the High Court that it had been in exclusive possession of the distillery, plant and machinery at Ujjain and the attached warehouses and dispossession was unlawful and that, 483 therefore, the appellant was entitled to restitution of the plant and machinery and also to the grant of licence after cancellation of the licence granted to the respondent.
The High Court found that the appellant had no exclusive posses sion which always remained with the Excise Department.
The appellant worked out the contract of manufacturing rectified spirit or spirit (country made liquor) in the distillery and wholesale supply to the retail vendors within the area attached to the distillery.
Due to non cooperation of the appellant possession was taken and delivered to the incoming licensee, the respondent, as per rules and the appellant was not entitled to restitution.
The other findings are not necessary as they are not pressed before this court.
The appellant had given up the reliefs of valuation of the plant and machinery and stock in trade.
During the pendency of the appeal on an application made by the appellant this court directed the state to make over payment of a sum of Rs. 10 lacs deposited by the respondent with the State Govt.
and also further directed the respondent to deposited sum of Rs.5 lacs in the Registry of this court and directed the Registry to keep that amount in fixed deposit to earn inter est thereon subject to adjustment at the final hearing.
Despite issuance of several notices by the department, the appellant did not cooperate in the estimate of the value of the plant and machinery of the distillery and warehouses.
the Committee appointed in terms of the conditions of the licence, fixed a sum of Rs. 10,53,016.45 as total value payable to the appellant.
Since a sum of Rs. 10 lacs had already been paid, the appellant is still entitled to the balance amount of Rs.53,016.45.
R.F. Nariman, learned counsel for the appellant, in his thorough and analytical arguments based on record made a shift in the stand and now contended that on a read ing of several clauses in the licence exhibit P 2, in particu lar, clause 50 enjoins the state to fix the valuation of all materials like buildings, still, machinery, etc.
belonging to the appellant as an outgoing licensee; should be pur chased by the respondent before the expiry of the contract and commencement of the succeeding contract of the respond ent; the Committee appointed by the Excise Department in this behalf should estimate fair valuation and payment thereto be made to the appellant before taking over posses sion and handing over the plant and machinery of the dis tillery and the attached warehouses to the respondents as a condition precedent to dispossess the appellant and start the operation of the contract by the respondent which admit tedly were not done.
This is in contravention of the manda tory conditions of the licence and the rules.
The 484 appellant, therefore, is entitled to restitution of the plant and machinery of the distillery and the attached warehouses illegally taken possession of by the respondent and the state.
In support thereof he placed strong reliance in Godhra Electricity Co. Ltd. & Anr.
vs State of Gujarat & Ors.
, ; He also referred to us in support of his contention various documents.
In our view it is not necessary to dwelve deep into them.
Sri Ganpule and Sri Tarkunde, the learned senior counsel for the State and the respondent.
contended that the appellant was requested twice to be present for delivery of the plant and machinery in the distillery and warehouses to the respondent and due to its non cooperation possession was taken.
Even for the assess ment of the valuation, before the expiry of the contract.
the appellant was given several notices requesting it to furnish the evidence of the value of the plant and machinery stock in trade, etc., and due to its non cooperation.
the valuation could not be made.
Prior valuation and payment are not condition precedent to work out the licence.
The appel lant has no right to the restitution after the expiry of the licence.
Sri Tarkunde, in particular, emphasised that the restitution prayed for became infructuous on account of the subsequent events, namely, pursuant to December 1984 Govt.
policy the respondents established their distillery at U j jain at their own expenses.
The second period of licence also expired in 1991.
There was further change in the policy of the Govt.
, namely each District was made a supply area under a separate licence for two years.
Under these circumstances the appellant is not entitled to any reliefs.
It is also further contended that the conditions in the licence in exhibit P 2 marked in the High Court should be read harmoniously.
It is clear that prior fixation of the valuation and the payment of the price is not a condition precedent.
The ratio in Godhra Electricity Co. Ltd. case is inapplicable to the facts of this case.
The sole question is whether fixation of the price of the plants and machinery at Ujjain and the attached ware houses and stock in trade and payment thereof to the appel lant is a condition precedent to take possession and deliv ery thereof to the respondent on August 28, 1981.
At the outset we may make it clear that, though Sri Nariman con tended that the grant of licence to the respondent was in gross violation of the conditions of the tender as the respondent did not comply with any of the mandatory condi tions stipulated therein and the delivery of the possession of the distillery in pursuance of the illegal contract is without jurisdiction, we decline to go into this question, though prima facie may be plausible to be countenanced, for the 485 reasons that the grant of licence for the period of 1981 to 1986 to the respondent became final and expired by efflux of time.
It was also contended by Sri Nariman that the valua tion made at Rs. 10,53,0 16.45 was not proper and contrary to the tender 's conditions which stipulated deposit of a minimum of Rs. 19 lacs by the respondent as a condition to grant licence, and that, therefore, the appellant is enti tled to valuation of at least Rs. 19 lacs.
We decline to go into that question also since the relief of valuation was given up in the High Court.
It is also clear from the record that the appellant had not cooperated in estimating the value and the Committee of designated officers, namely the Addl.
Collector, the District Excise Officer, Astt.
Commis sioner of Excise and Accounts Officers was compelled to go into the question and made an assessment of the value on January 5, 1984.
That valuation was also not questioned in the writ petition.
To find whether it is a condition precedent to fix the valuation of the plants and machinery of the distillery and the warehouses and the stock in trade and payment thereof before taking over possession and handing over the same to the incoming licencee, the material clause 50 to be looked into reads thus: "All the materials like buildings, still, machinery, drums, wood fuel, coal, mahua, bottling, machinery, bottles, spices, red sealing wax, coaltar, pilfer proof seals, crown corks, alongwith alu capsules, etc.
belonging to the outgoing licensee purchased for the use of distillery and warehouses attached thereto, shall be valued before the expiry of the old contract and the commence ment of the new one by a committee appointed by the Excise Department in this behalf.
The committee aforesaid shall be appointed by the Excise Commissioner under the previous sanc tion of the Government (Separate Revenue Department) and it shall consist of five members, namely (1) Collector or Additional Collector convenor, (2) Assistant Commissioner of Excise of the Division concerned member (3) Executive Engineer Technical member, (4) Accounts Officer of the Excise Department Member, and (5) Representative of the licensee Member.
If the representative of the licensee remains absent in the committee at the appointed time, the remaining four members shall begin their work in his absence and no objection of the licensee in this respect shall be heard.
The valuation made and agreed upon by the Committee shall be sanc tioned by the Excise Commis 486 sioner with such necessary changes as he deems fit and in case of difference of opinion amongst the members, the Excise Commissioner shall pass orders relating to disputed valua tion.
The orders of Excise Commissioner shall be final and binding upon the licensee.
Note: The valuation of sanctioned plant at the warehouses may be done by a committee consisting of some of the members of the above referred committee, subject to the orders of the Excise Commissioner, which shall be final and binding on the licensee.
Prima facie, if the clause by itself is read in isola tion, it would indicate that prior fixation of the value and payment is a condition precedent.
But in our view all the conditions of the licence, policy of the Act and Rule of the possession, manufacture, supply, sale and distribution of the rectified spirit or denatured spirit or liquor from the stage of manufacture in Distillery till retail sale to the consumer be viewed as an integrated whole and the human behaviour of the outgoing licensee also has to be kept in view.
Any other view would disrupt smooth transition from the outgoing to the incoming licensee; hampers the continui ty of supply and sale of intoxicants and cause collosal loss of public revenue.
So let us consider the relevant proposi tions from this background.
Section 13 of the Act requires a licensee to manufacture intoxicants: (a) Licence is required for manufacture, etc.
of intoxicants; (b) No intoxicant shall be manufactured or collected . . . (f) No person shall induce, keep in his possession any material. . for the purpose of manufacture of intoxicants, other than tari, except under the authority and subject to the terms and conditions of the licence granted in that behalf.
Section 14 provides that: (a) establish a distillery in which spirit may be manufactured under licence granted under section 13 on such conditions as the Govt.
may impose. 487 (C) license on such conditions as the State Govt.
may impose the construction and working of the distillery and brewery; (c) establish or licence warehouses wherein any intoxicant may be deposited and kept without payment of duty, subject to payment of such fee as the State Govt.
may direct. .
Section 17 provides inter alia that no intoxicant shall be sold except under the authority and subject to the terms and conditions of licence granted in that behalf.
Thus it is clear that establishment of a distillery or a warehouse; manufacture of intoxicants, spirit (country made liquor), the possession and distribution and sale thereof are regulated under the Act.
The Govt.
in exercise of its power under section 62 of the Act made rules regulating the control of distilleries and warehouses by Officers of the Excise Department, especially appointed by the Excise Commissioner for that purpose.
Therefore, any licensee, under the Act and the Rules, be it incoming or outgoing, should have D 2 and D I licences for establishment of distillery and warehouses, possession of raw materials, manufacture of liquor or rectified spirit or denatured spirit and supply to the retail vendors of the area attached to the distillery.
Any infraction is an of fence.
It is settled law by several decisions of this court that there is no fundamental right to a citizen to carry on trade or business in liquor.
The state under its regulatory power, has power to prohibit absolutely any form of activity in relation to an intoxicant, its manufacture, possession, import and export.
No one can claim, as against the state, the right to carry on trade or business in any intoxicants, nor the state be compelled to part with its exclusive right or privilege of manufacture, sale, storage of liquor.
Fur ther when the state has decided to part with such right or privilege to the others, then state can regulate consistent with the principles of equality enshrined under article 14 and any infraction in this behalf at its pleasure are arbitrary violating Article 14.
Therefore, the exclusive right or privilege of manufacture, storage, sale, import and export of the liquor through any agency other than the state would be subject to rigour of Article 14.
Vide Har Shankar & Ors.
vs Dy.
Excise & Taxation Commissioner & Ors., and State of M. P.v.
Nandial Jaiswal.
; , 488 When the state was dealing with the grant of the privi lege of establishing or manufacturing intoxicants, rectified spirit or denatured spirit, spirit (country made liquor) in a distillery owned or regulated by it, and invites tenders in this regard it should conform to the rigour of article 14 of the Constitution.
Admittedly, the licence of the appellant expired on March 31, 1981 and thereafter it had no right to manufacture and store at distillery in Ujjain and distribu tion as wholesaler of the country made liquor from the attached warehouses to the retail vendors within that area granted to the respondent.
But for the stay granted by the High Court the operation of the respondent 's licence was to begin on April 1,198 1.
The outgoing licensee, the appel lant, had to hand it over to the respondent on that date.
The conditions in the licence P 2 postulate of mutual rights and obligations between the outgoing licensee to sell and the incoming licensee to purchase the plant and machinery of the distillery, stock in trade and also the machinery in the warehouse including the apparatus, etc.
enumerated in the conditions either at the price fixed or agreed directly between the parties or fixed by the committee of the desig nated officers.
In case of any difference in the valuation between the members, the Commissioner of the Excise or the State Govt.
would fix the valuation, which was made final.
The Committee designated was to be constituted with prior approval of the Govt.
as per condition 50 to evaluate the plant and machinery of the distillery and some of them of the warehouses.
Outgoing licensee also is entitled to repre sent in the Committee.
On his non cooperation the rest of the four members of the Committee are empowered to determine the value.
Clause 23(iii) provides that any dispute relating to valuation of the sanctioned plant shall be referred to the State Government and the decision of the State Govt.
shall be final and binding on the parties to the dispute.
Clause 2 thereof refers that the licensee shall made over the said distillery and warehouses buildings on the termination of the licence in as good condition as they were at the com mencement hereof excluding reasonable wear and tear.
Clause 36(4) provides that any dispute relating to the sale of spirit or plant by the licensee or the valuation of the plant shall be referred to the State Govt.
and the decision of the State Govt.
shall be final and binding.
Clause 39(1) in particular, mentions that at the commencement of the term of this licence, the licensee shall buy all sanctioned plant at the U j jain distillery including spare parts, furniture, motor trucks and fittings at a price to be fixed by the State Government.
Licensee shall pay the price thereof within 30 days of the communication.
Similarly, clause 41, 42(1) and clause 44 provide that the incoming licensee shall take on lease all 489 other buildings structures attached to the distillery at Ujjain on such conditions and terms as per Public Works Department Manual Vol.
II within a period of one month of the intimation of the acceptance of the tender.
Then comes clause 50 quoted hereinabove.
The incoming licensee shall make payment within 30 days from the date of communication of the value.
Therefore, the courts should adopt realism, pragmatism, practicality and the purpose envisaged under the Act and the rules in construing the relevant clauses in the licence.
The purpose of the Act the rules made therein is to regulate the manufacture, distribution sale of the intoxicants, rectified spirit or denatured spirit, liquor, sale to consumers within the state of Madhya Pradesh.
It is an on going process conducted through the licensing system, an exclusive privi lege of the state through the licences granted under form D 1 and D 2 in this behalf.
The duration of the licence is fixed one.
On expiry of the licence the outgoing licensee shall be bound to handover the distillery plant and machin ery therein, and warehouses attached thereto, the stock in trade and other apparatus and goods used for the manufac ture, storage and distribution.
The outgoing contractor is entitled continue his business activity till the last date of the licence, namely March 31, of the ending year.
The succeeding licensee would take over the business from the outgoing licensee on April 1 of the year of licence.
Thus there should be no hiatus between taking over and handing over the manufacture, possession.
storage of the wholesale business of the spirit (country made liquor) or rectified spirit or denatured spirit.
Under these circumstances it will well nigh be impossible to assess the valuation of the entire stock in trade or plant and machinery in the distill ery or the warehouses till the last date.
In addition the cooperation of the outgoing licensee is also necessary and expected as he would be in possesssion of the records of the previous purchases of the materials, or plant or machinery if any new additions are made etc.
Unless they are made available, it is not possible to assess the value after giving due rebate or depreciation, etc.
to the incoming licensee.
The human nature and conduct would be such that the outgoing licensee, being the unsuccessful tenderer, would not cooperate in handing over possession of the dis tillery and stock in trade and would approach the High Court under article 226 of the Constitution as was done in this case.
The incoming licensee has time of thirty days in case of stock in trade or three months in the case of plant and machinery from the date of communication to him to pay the value to the outgoing licensee.
Keeping those circumstances at the back of our mind we decline to adopt lexographic strict construction of clause 50 which 490 would thwart continuity; create hiatus in smooth operation of manufacture, storage, distribution and sales of the intoxicants.
Moreover, after the assessment is made and in case of any difference of opinion in the valuation or the outgoing licensee claims higher value the final arbiter would be in some cases like stock in trade, the Commissioner of Excise and in case of plant and machinery or warehouses the State Govt.
After the decision of the Commissioner or the State Government, it shall be communicated to the suc ceeding licensee, who has been given maximum period of three months to make payment to the outgoing licensee.
In the light of the scheme of valuation of the plant and machinery of the distillery, or the apparatus in the warehouses and the stock in trade, we hold that strict construction would lead to innumerable complications and loss of public reve nue.
We are inclined to hold that before the expiry of the licence, if the outgoing licensee cooperates, the value can be fixed with consensus, payment should also be made within the time stipulated.
In all other cases it could be done even after the expiry of the stipulated period.
In that perspective we have no hesitation to hold that prior valua tion of plant and machinery in the distillery, stock in trade therein or the value of the machinery in the ware houses and stock of the liquor stored therein and payment thereof before taking possession and handing them over to the incoming licensee is not a mandatory, nor a condition precedent.
Therefore, taking over possession from the appel lant on August 28, 1981 and handing over the plant and machinery, etc.
to the respondent is not illegal.
Undoubtedly this court, in Godhra Electricity case held that it is mandatory that a person who is deprived of his property, before its taking over, the value should be esti mated and the payment made or else it is illegal.
But the ratio would be considered in the light of the setting there in.
The licence granted under section 6 of the as amended in 1959 to produce electrical energy was acquired by the Electricity Board.
Section 6(6) provides that where a notice exercising the option of purchasing the undertaking has been served upon the licence, the licensee shall deliver the undertaking to the State Electricity Board on expiry of the relevant period referred to in section 6(1).
In that case the constitutional validity of section 6(6) was ques tioned which did not provide for payment before taking over of the undertaking as offending Article 19(1)(f) and (g) and article 14 of the constitution.
While considering the constitu tional validity of section 6(6) this court held that valuation and payment is a condition precedent since the Act did not envisage any payment of interest subsequent thereto.
Accord ingly this court directed redelivery of the undertaking 491 to the licensee subject to follow the procedure as per law laid down therein.
In this case admittedly the conditions of licence are not questioned, but expressly given up in the High Court.
Even before us the validity of the valuation has not been questioned.
It cannot cut the branch on which the appellant sits to assail the constitutional validity of the conditions of the licence.
Accordingly we have no hesitation to hold that the appellant is not entitled to the restitu tion of the plant and machinery of the distillery at Ujjain and the attached warehouses.
The appellant though claimed that the value of the plant and machinery was too low, contrary 'to the specification in this behalf in tender condition and though we decline to go into the question, the appellant appeared to have smarted under apprehension that it had to face the plea of acquies cence, if it were to cooperate earlier.
So it is open to the appellant to make a representation to the Govt.
and any officer not below a Secretary preferably of the concerned Department would go into the matter and decide the value as per the material on record.
It is open to the appellant to place all its material.
It is also open to the respondent to place its material and the authority would consider after giving an opportunity of hearing through counsel, if asked for, and decide the value accordingly.
As regards deposit now made in the Registry of this Court, the Registry is directed to make payment of a sum of Rs.53,016.45 and inter est accrued thereon to the appellant and the balance amount and the interest accrued on the residual to the respondent and the respondent 's liability would be subject to the decision by the Secretary as indicated in the judgment.
The appeal is accordingly allowed to the above extent and since the appellant substantially failed there would be no order as to costs.
Y.L. Appeal partly allowed.

summary/full:
The appellants and its predecessors continuously held licences under Sections 13 and 14 of the Madhya Pradesh Excise Act to distil rectified spirit or denatured spirit or liquor.
The last of such licence which the appellant had related to the period from 1.4.1977 to 31.3.1981.
The next licensing period commenced from 1.4.1981 to 31.3.1986 and the respondent Rajdhani Distilleries Corporation became the successful tenderer in respect thereof which the appellant impugned by means of a writ petition before the High Court but failed both before the High Court as also in this Court in a special leave petition.
Thereupon the appellant was called upon twice to be present to deliver the possession of the distillery to the respondent but the appellant did not co operate.
Likewise the appellant did not co operate in fixing the value of the plant and machinery of the distill ery and warehouses as a result of which a committee was appointed in terms of the licence which fixed a sum of Rs.10,53,016.45 p. as the total value payable to the appel lant.
Due to the non cooperation of the appellant, the Excise Department took over the possession of the distillery after making inventory of stock in hand in the presence of the witnesses and the same was handed over to the respond ent.
The appellant thereafter demanded redelivery of the distillery and on his failure to get the same it filed a writ petition in the High Court praying for a writ of manda mus seeking inter alia restitution of the distillery and the warehouses etc., challenging the quantum of valuation fixed.
The High Court dismissed the writ petition.
The High Court found that the appellant had no exclusive possession which always remained with the excise Department; the appellant worked out the contract of manufacturing rectified spirit etc.
and that due to non cooperation of the appellant, possession was taken and delivered to the incoming licensee as per rules and the 479 480 appellant was not entitled to restitution.
Hence this appeal by special leave.
It is contended on behalf of the appellant that clause 50 enjoins the State to fix the valuation of all the materials belonging to the appellant and pay the same to it as an outgoing licensee, before taking over possession and handing over the distillery and the attached warehouses to the respondents.
According to it, it is a condition precedent under clause 50 to dispossess the appellant and start the operation of the contract by the respondent which admittedly were not done.
This is a contravention of the mandatory conditions of the licence and the rules.
The respondents on the other hand contend that the appellant is not entitled to restitution as it was due to its non cooper ation, possession was taken.
According to them prior valua tion and payment are not condition precedent to work out the licence.
Partly allowing the appeal, this Court, HELD: In the light of the scheme of valuation of the plant and machinery of the distillery, or the apparatus in the warehouses and the stock in trade, the Court held that strict construction (of clause 50) would lead to innumerable complications and loss of public revenue.
We are inclined to hold that before the expiry of the licence, if the outgoing licensee cooperates, the value can be fixed with consensus, payment should also be made within the time stipulated.
In all other cases it could be done even after the expiry of the stipulated period.
In that perspective the Court had no hesitation to hold that prior valuation of plant and machin ery in the distillery, stock in trade therein or the value of the machinery in the warehouses and stock of the liquor stored therein and payment thereof before taking possession and handing them over to the incoming licensee is not a mandatory, nor a condition precedent.
Therefore, taking over possession from the appellant on August 28, 1981 and handing over the plant and machinery, etc.
to the respondent is not illegal.
[490C E] In this case admittedly the conditions of licence are not questioned, but expressly given up in the High Court.
Even before us the validity of the valuation has not been questioned.
It cannot cut the branch on which appellant sits to assail the constitutional validity of the conditions of the licence.
Accordingly we have no hesitation to hold that the appellant is not entitled to the restitution of the plant and machinery of the distillery at Ujjain and the attached warehouses.
[491A B] It is open to the appellant to make a representation to Government and any officer not below a Secretary preferably of the concerned 481 Department would go into the matter and decide the value as per the material on record.
It is open to the appellant to place all its material.
It is also open to the respondent to place its material and the authority would consider after giving an opportunity of hearing through counsel, if asked for, and decide the value accordingly.
[491D] Godhra Electricity Co. Ltd. and Anr.
vs State of Gujarat and Ors.
, ; ; Hat Shankar & Ors.
vs Dy.
Excise of M. P.v.
Nandial Jaiswal; , , Referred to.


judgement:
vil Appeal Nos.
54 to 56 of 1975.
From the Judgment and Order dated 29.6.1973 of the Kerala High Court in A.S. Nos.
603,604 and 605 of 1969.
N. Sudhakaran for the Appellants.
K.V. Viswanathan, K.R. Nambiar and T.T. Kunhikannan for the Respondents.
The Judgment of the Court was delivered by K. RAMASWAMY, J.
These appeals by special leave are directed against the judgment and decrees of Kerala High Court in A.S. Nos.
603,604 and 605 of 1969 dated June 29, 1973 confirming the award and decrees of the Civil Court in L.A.O.P. No. 413 etc.
of 1964 and 370 and 405 of 1966 dated January 16, 1969.
The notification under section 4(1) of the Land Acquisition Act 1894 (for short 'the Act ') was pub lished in the gazette on October 25, 1960 acquiring an ancient Chalai Anicut together with embarkments sluices, culverts etc.
by six notifications.
This ancient Chalai Anicut originally belonged to Arumughom Pillai.
On his demise it devolved on his four sons Venkatachalam Pillai, Vishwanathan Pillai, Pasupathy Pillai and Subhapathy Pillai by intestate succession as coparceners.
By partition deed exhibit B 23 dated December 22, 1954, the four brothers parti tioned certain properties but kept in common acquired Chalai Anicut under the management of the eldest brother Venkata chalam Pillai.
Pursuant to the notice issued under section 9(3) and 10 of the Act, Venkatacha 468 lam filed his objections making reference therein to the partition deed No. 2437 of 1954 in the Registrar 's office, Palghat and that each of the brothers had 1/4 share in the Anicut and irrigation system.
After the award made by the Land Acquisition Officer compensation was made to all the brothers at 1/4th share each.
Venkatachalam sought six references under section 18 as he was dissatisfied with the awards made by the Land Acquisition Officer.
The Civil Court enhanced in all to a sum of Rs.52,009.40 p.
The State filed no appeal against the enhancement of the compensation.
The Civil Court granted an award of 1/4 share thereof to Venka tachalam Pillai with solatium at 15 per cent and interest thereon at 4 per cent and did not award the balance amount to the appellants in their respective shares on the ground that they did not jointly ask for reference but only one alone asked for.
The two brothers asked for reference for two awards only and the last one did not ask for reference of any award.
On appeals, the High Court confirmed the award and decrees of the Civil Court.
Thus these three appeals at their behest.
Common question of law arises in these appeals and hence they are disposed of by a common judgment.
The sole question for decision is whether in a reference Sought for by one of the co owners whether the other co owners who did not expressly seek reference, are entitled to enhanced compensation pro rata as per their shares.
It is not in dispute that under the partition deed, the four brothers as coparceners kept in common the acquired property and Venkatachalam was in management thereof and each are entitled to 1/4 share in the ancient Anicut and the irriga tion system.
It is also undisputed that total enhanced compensation is Rs.52,009.40 p.
Therein all the four broth ers including the appellant are entitled to 1/4 share each.
In the reference application made by the Venkatachalam indisputably he mentioned that the acquired property be longed to him and his other brothers and the compensation awarded by the Land Acquisition Officer was inadequate and very low.
It was also stated that they Should get an en hanced amount at the figure specified in the reference application.
Undoubted he stated therein that he is entitled to 1/4 share.
What he stated thereby was that of his enti tlement of 1/4 share of the total enhanced compensation and obviously, after the reference on par with his three broth ers, he is entitled to receive compensation at 1/4 share.
The Courts below disallowed the payment to the appellants on the ground that there is no mention in the 469 claim petition of the partition deed; that they are the co owners and that there is no averment that the Venkatachalam was seeking reference under section 18 on his behalf and on behalf of his other three brothers.
As regards the first two grounds are concerned they are palpably incorrect.
It is seen that an express averment was made in the objections filed pursuant to notice under section 9(3) and 10 and also in his reference application under section 18 of the Act, that there was prior partition and each of the brothers are entitled to 1/4th share and that they are dissatisfied with the award of the Collector.
Undoubtedly there is no express averment in the reference application under section 18 that he is seeking a reference on his behalf and on behalf of his three brothers.
It is contended by the counsel for the State that the pleadings are to be strictly construed and that as the reference was sought for only by Venkatachalam of all the six awards the other three brothers are not entitled to any share in the enhanced compensation.
In support thereof it is also further contended that Viswanathan and Pasupathy had only asked for reference in respect of two awards and Sabhapathy Pillai made no request for reference against any of the six awards made by the Collector.
It is true that Viswanathan and Pasupathy made such request in respect of two awards and Sabhapathy did not make any request for reference against any of the awards.
But what would be the consequence in law is the question.
It is surprising that the State having acquired the property of a citizen would take technical objections regarding the entitlement of the claim.
The State certainly is right and entitled to resist claim for enhancement and lead evidence in rebuttal to prove the prevailing price as on the date of notification and ask the court to determine the correct market value of the lands acquired compulsorily under the Act.
But as regards the persons entitled to receive compensation are concerned it has no role to play.
It is for the claimants inter se to lay the claim for compensation and the court would examine and award the compensation to the rightful person.
As seen in the objections pursuant to the notice under section 9(3) and 10, Venkatchalam made necessary averments that himself and his brothers had 1/4 share in the Anicut and irrigation system pursuant to the partition deed referred to therein.
In his reference application under section 18 also he 470 reiterated the same and stated that the amount awarded by the Collector was in adequate and that they were dissatis fied with it and that they are entitled to more.
It is settled law that one of the co owners can file a suit and recover the property against strangers and the decree would enure to all the co owners.
It is equally settled law that no co owner has a definite right, title and interest in any particular item or a portion thereof.
On the other hand he has right, title and interest in every part and parcel of the joint property or coparcenery under Hindu Law by all the coparceners.
In Kanta Goel vs
B.P. Pathak & Ors,.
12, this Court upheld an application by one of the co owners for eviction of a tenant for personal occupation of the co owners as being maintainable The same view was reiterated in Sri Ram Pasricha vs Jagannath & Ors., [1977]1 S.C.R. 395 and Pal Singh vs Sunder Singh (dead) by Lrs. & Ors.
, ; A co owner is as much an owner of the entire property as a sole owner of the property.
It is not correct to say that a co owner 's property was not its own.
He owns several parts of the composite property along with others and it cannot be said that he is only a part owner or a fractional owner in the property.
That position will undergo a change only when partition takes place and division was effected by metes and bounds.
Therefore, a co owner of the property is an owner of the property acquired but 'entitled to receive compensation pro rata.
The State would plead no waiver nor omission by other co owners to seek reference nor disentitle them to an award to the extent of their legal entitlement when in law they are entitled to.
Since the acquired property being the ancestral coparcenary and continued to be kept in common among the brothers and the income derived therein was being shared in proportion of their shares by all the brothers it remained as joint property.
As co owners everyone is entitled to 1/4 share therein.
It was also laid by this Court in a recent judgment in Ram Kumar & Ors.
vs Union of India & Ors.
, ; that it is the duty of the Collector to send full infor mation of the survey numbers under acquisition to the court and make reference under section 18 and failure thereof is illegal.
The same ratio would apply to the facts in this case as well.
When one of.
the co owner or coparceners made a statement in his reference application that himself and his brothers 471 are dissatisfied with the award made by the Collector and that they are entitled to higher compensation, it would be clear that he was making a request, though not expressly stated so but by necessary implication that he was acting on his behalf and on behalf of his other co owners or coparcen ers and was seeking a reference on behalf of other co owners as well.
What was acquired was their totality of right, title and interest in the acquired property and when the reference was made in respect thereof under section 18 they are equally entitled to receive compensation pro rata as per their shares.
The courts below committed manifest error in refusing to pass an award and payment thereof to the appel lants merely on the ground that there was no mention in this regard in the reference application or two of them sought reference in respect of two awards and the last one made no attempt in their behalf.
The claimants are entitled to payment of the enhanced award by the Civil Court pro rata of their 1/4 share each with 15 per cent solatium and 4 per cent interest as awarded by the Civil Court.
The appeals are accordingly allowed with costs of this Court.
R.P. Appeals allowed.

summary/full:
The three appellants and their eldest brother, under a family partition, which took place in 1954, kept in common certain ancestral properties under the management of the latter.
These properties were acquired in pursuance of a notification dated 15.1.1967 under section 4(1) of the Land Acquisition Act, 1894.
The eldest brother filed objections referring to the partition deed of 1954 and stated that each of the four brothers had 1/4 share in the properties in question.
Ultimately the compensation was made to all the brothers at 1/4th share each.
The eldest brother sought six references under section 18 being dissatisfied with the awards.
The Civil Court enhanced the compensation and granted an award of 1/4th share thereof to the eldest brother with solatium and interest, but did not award the balance amount to the appellants in their respective shares on the ground that they did not jointly ask for the reference.
Out of the remaining three brothers two asked for reference for two awards only and the last one did not ask for reference of any award.
On appeal, the High Court confirmed the award and decrees of the civil court.
Aggrieved, the appellants preferred appeals by special leave to this Court.
On the question: whether in a reference under section 18 of the Land Acquisition Act sought for by one of the co owners, the other co owners, who did not expressly seek reference are entitled to enhanced compensation pro rata as per their shares? Allowing the appeals, this Court, 466 HELD: 1.1 The Courts below committed a manifest error in refusing to pass an award and payment thereof to the appel lants.
The coparceners claimants appellants in the instant case were entitled to payment of the enhanced award by the Civil Court pro rate of their 1/4th share each with 15 per cent solatium and 4 per cent interest as awarded by the Civil Court.
[471C D] 1.2 It was not in dispute that under the partition deed, the four brothers as coparceners kept in common the acquired property under the management of the eldest brother.
The income derived therein was being shared in proportion to their shares by all the brothers.
Therefore, it remained as joint property.
As co owners everyone was entitled to 1/4th share therein.
[468E; 470F] 1.3 When one of the co owners or coparceners made a statement in the reference application that the acquired property belonged to him and his brothers, that he himself and his brothers were dissatisfied with the award made by the Collector and that they were entitled to higher compen sation, it would be clear that he was making a request, though not expressly stated so but by necessary implication that he was acting on his behalf and on behalf of his other co owners or coparceners and was seeking a reference on their behalf as well.
What was acquired was their totality of right, title and interest in the acquired property and when the reference was made in respect thereof under section 18, they were equally entitled to receive compensation pro rata as per their shares.
[468F; 471A B] 2.1 One of the co owners can file a suit and recover the property against strangers and the decree would ensure to all the co owners.
A co owner is an owner of the property acquired but entitled to receive compensation pro rata.
[470A & E] 2.2 A co owner is as much an owner of the entire property as a sole owner.
It is not correct to say that a co owner 's property was not his own.
He owns several parts of the composite property along with others and it cannot be said that he is only a part owner or a fractional owner in the property.
[470C D] 2.3 No co owner has a definite right, title and inter est in any particular item or a portion thereof.
On the other hand he has right, title and interest in every part and parcel of the joint property or coparcenary under Hindu Law by all the coparceners.
[470A B] Kanta Goel vs
B.P. Pathak & Ors., ; ; Sri Ram 467 Pasricha vs Jagannath & Ors., and Pal Singh vs SunderSingh (dead) by Lrs.
& Ors., [1989] 1 S.C.R. 67, relied on.
It is surprising that the State having acquired the property of a citizen would take technical objections re garding the entitlement of the claim.
The State certainly is right and is entitled to resist claim for enhancement and lead evidence in rebuttal to prove the prevailing price as on the date of notification and ask the court to determine the correct market value of the lands acquired compulsorily under the Act.
But so far as the persons entitled to receive compensation are concerned, it has no role to play.
It is for the claimants inter se to lay the claim for compensation and the Court would examine and award the compensation to the rightful person.
[469E F]


judgement:
il Appeal No. 3 107 of 1991.
From the Judgment and Order dated 14.8.
1990 of the Gauhati High Court in Civil Rule No. 407 of 1985.
H.N. Salve.
K.S. Parihar and H.S. Parihar for the Appellant.
P.K. Goswami, Kailash Vasdev and M.J. Paul for the Respondents.
The Judgment of the Court was delivered by KANIA, J.
Special Ieave granted.
Counsel heard.
462 This is an appeal filed by the Reserve Bank of India, by special leave.
The contesting respondent, being respondent No. 1, is an association of its officers at its Gauhati unit.
The respondent association (referred to hereinafter as "the respondent") represents the interests of 45 officers belonging to Grades A to C employed in the appellant bank at its unit at Gauhati.
It appears from the affidavit filed on behalf of the appellant that there was difficulty in per suading officers of the appellant posted outside the North Eastern region to accept transfers to the unit of the appel lant in the North Eastern part of the country which unit was located at Gauhati in Assam.
It also emerges from the record that the Gauhati station was regarded as a hardship station by the officers who were transferred to the Gauhati unit from other regions of the country.
The Government of India found a similar difficulty in persuading its officers to accept postings in the NorthEastern region and they were given substantial incentives to accept transfers to the North Eastern region.
We are not here concerned directly with the actual benefits granted by the Government of India but what is material is that such benefits had to be given by the Government of India.
By a letter dated December 9, 1983, certain incentives and allowances were provided by the appellant to its officers posted at Gauhati who were not from the North Eastern regions.
Those allowances were gener ally known as special duty allowances.
We are not much concerned with the details as to how the special duty allow ances were calculated but the main special duty allowance basically comprised 25% of basic pay, subject to a maximum of Rs.400 per month.
These allowances were also known as special compensatory allowances or remote locality allow ances.
By a Memorandum issued by the appellant on April 11, 1985, an adhoc increase in salary was effected for non local officers and an option was given to them either to choose the adhoc increase or the special duty allowances for the period during which they were posted at Gauhati.
The re spondent demanded the extension of the said benefit to the local officers by its letter dated May 10, 1985.
We may mention here that the local officers who were posted at the Gauhati did get an extra allowance in addition to their salaries but it was considerably smaller than the main compensatory allowance paid to the officers from outside the NorthEastern region who were transferred to Gauhati.
Certain other benefits were also allowed to non local officers transferred to Gauhati but there is no need to refer to them in detail.
The appellant declined to allow the same allow ances to local officers posted at Gauhati as were given to the officers from other regions transferred to Gauhati as stated earlier.
It is this decision which gave rise to the writ petition from the decision in which this appeal arises.
463 It was the contention of the respondent before the Gauhati High Court that all the officers of the appellant bank posted at Gauhati, whether they were from the North Eastern region or outside had to live in the same conditions and suffer from the same hardships, and hence, if any allow ance was given to the officers transferred from outside to the Gauhati office, the very same allowance should also be given to the local officers posted at Gauhati.
In the coun ter filed in the High Court by the appellant bank, the Deputy Chief Officer of the appellant bank averted that the hardships faced by the non local officers are greater than those faced by the local officers.
The scheme of adhoc incentives was introduced to tide 'over the problem of adequately staffing the Gauhati office.
Non local officers experienced difficulties in getting accommodation, getting familiar with the language and so on, and some incentives had to be given to them to mitigate the hardships experi enced by them on transfer to Gauhati.
It was clarified that the said incentives were temporary and because of the pecu lier circumstances prevailing at the moment in the North Eastern region which was regarded as a difficult region.
It was accepted that considerable difficulties would have to be suffered by the officers posted there who hailed from places outside the NorthEastern region.
The contention of the appellant bank failed to find favour with the High Court which took the view that all officers at Gauhati suffered from substantially the same hardship and it pointed out that, for example, even officers from outside from Tripura who were posted at Gauhati would suffer almost the same degree of hardship as officers transferred to Gauhati from regions other than the North Eastern regions although Tripu ra was in the North Eastern region.
The High Court took the view that the local officers of the appellant bank, Gauhati were discriminated against and directed that they must be given the same benefits as the non local officers trans ferred to Gauhati.
It is the correctness of the view taken by the High Court which is sought to be impugned before us in this appeal.
We are of the opinion that the High Court was, with respect, in error in taking the view that officers from the North Eastern region who were posted at Gauhati.
either on transfer or otherwise, sufferred the same hardships as officers from other regions transferred to Gauhati.
The hardship and inconvenience sufferred by an officer of the appellant bank who was transferred to Gauhati from regions other than the North Eastern region, would certainly be more acute than those suffered by local officers posted at Gau hati.
His mother tongue might completely be different in speech and, even as far as the script is concerned, from the 464 language used by the local people at Gauhati.
He and his family members would, therefore.
find it very difficult to communicate freely with the local people.
His children might find it difficult to get admission to a school and pursue their education at Gauhati.
They would be unfamiliar with the surroundings and the customs of the people.
The hard ships faced by an officer say from the Western or Southern regions of India or North India posted at Gauhati would be qualitatively as well as quantitatively greater than the hardships faced by the local officers posted at Gauhati.
It may be that some of the officers coming from the North Eastern region may also face considerable hardships when posted at Gauhati but the fact that there might be a few such officers would not render the payment of special allow ance, exclusively to officers transferred from distant regions discriminatory and bad in law.
The High Court was, therefore, not justified in coming to the conclusion that all the officers of the appellant bank posted at Gauhati sufferred from the same degree of hardship.
A person trans ferred from outside the North Eastern region to Gauhati would normally have to face more severe difficulties than an officer from the North Eastern region posted in Gauhati or, at the least, the appellant bank could reasonably take that view.
Moreover, as pointed out by the appellant bank in the counter that they were finding it difficult to persuade their officers from outside to accept transfers to Gauhati and it is common knowledge that an office of a large bank cannot be run efficiently by officers a large number of whom have been posted there by transfers against their will and under the threat of disciplinary action.
The work done by them could hardly be expected to be satisfactory.
After all, the appellant, the Reserve Bank of India, is a banking institution and if in the interest of efficiency and proper working it bona fide took the decision, in the circumstances set out earlier, to grant some extra benefits to the non local officers transferred to Gauhati with a view to main tain efficient working of its unit at Gauhati, in our opin ion, they cannot be treated as being guilty of any unlawful discrimination.
In the result, we allow the appeal and set aside the order of the High Court.
The writ petition filed by respond ent No. 1 is dismissed.
There will be no order as to costs throughout.
V.P.R. Appeal allowed.

summary/full:
By a letter dated December 9, 1983 certain incentives and allowances were provided by the appellant to its offi cers posted at Gauhati who were not from the North Eastern region.
Those allowances were generally known as special duty allowances and the main special duty allowance com prised 25% of basic pay, subject to a maximum of Rs.400 per month.
By a Memorandum issued by the appellant on April 11, 1985, an ad hoc increase in salary was effected for non local officers and an option was given to them either to choose the ad hoc increase or the special duty allowances for the period during which they were posted at Gauhati.
The respondent demanded the extension of the said bene fits to the local officers by their letter dated May 10, 1985.
When the appellant bank declined to allow the benefits to the local officers, the respondent association challenged the Memorandum dated April 11, 1985 in a writ petition in the High Court, contending that all the officers of the appellant bank posted at Gauhati, whether they were from the North Eastern region or outside had to live in the same conditions and suffer from the same hardships, and hence, if any allowance was given to the officers transferred from outside to the Gauhati Office, the very same allowance should also be given to the local officers posted at Gau hati.
The appellant bank averred in its counter that the scheme of ad hoc incentives was introduced to tide over the problem of adequately staffing the Gauhati office; that the non local officers experienced difficulties in getting accommodation, getting familiar with the language and so on, and some incentives had to be given to them to mitigate the hardships experienced by them on transfer to Gauhati; that the said incentives were temporary and because of the pecul iar circumstances 461 prevailing at the moment in.
the North Eastern region, which was regarded as a difficult region.
The High Court allowed the petition, holding that all officers at Gauhati suffered from substantially the same hardship and that the local officers of the appellant bank at Gauhati were discriminated against and directed that they must be given the same benefits as the non local officers transferred to Gauhati.
Allowing the appeal by special leave filed by the.bank, this Court, HELD: 1.01.
The hardship and inconveniences suffered by an officer of the appellant bank who was transferred to Gauhati from regions other than the North Eastern region would certainly be more acute than those suffered by local officers posted at Gauhati.
[463G H] 1.02.
Some of the officers coming from the North Eastern region may also face considerable hardship when posted at Gauhati but the fact that there might be a few such officers would not render the payment of special allowance, exclu sively to officers transferred from distant regions discrim inatory and bad in law.
[464B C] 1.03.
The Reserve Bank of India, is a banking institu tion and if in the interest of efficiency and proper work ing, it bona fide took the decision to grant some extra benefits to the non local officers transferred to Gauhati with a view to maintain efficient working of its unit at Gauhati, they cannot be treated as being guilty of any unlawful discrimination.
[464E F]


judgement:
ivil Appeal Nos.
1694 1709 of 1991.
From the Judgment and Order ' dated 23.1.1990 of the A.P. Administrative Tribunal, Andhra Pradesh in R.P. Nos.
13986/89, 24045 50/89, 25091/89, 1027 & 2111/.89, 28925 26/89, 28929 to 31/89 and O.A. No. 1918 of 1990.
K. Madhava Reddy and G. Prabhakar for the Appellants.
M.K. Ramamurthi, section Markandeya and Ms. C. Markandeya for the Respondents.
The following Order of the Court was delivered: This is an appeal by the State Government of Andhra Pradesh by special leave: Challenge is to the order of the State Administrative Tribunal directing the benefit of the Government Order of 18.11.1981 to be extended to selection of the Sub Inspectors of Police which is done through the State level Recruitment Board.
The Government Order which has been extracted in the Order of the Tribunal reads thus: "Notwithstanding anything in the Andhra Pra desh State and Subordinate Service Rules or the Special Rules, candidates seeking appoint ment of all the non gazetted posts of all services, and seeking eligibility in general educational test who have obtained the basic educational qualifications prescribed for direct recruitment eligibility for promotion in the special rules governing such posts, through Telugu medium, shall be given weight age in the matter of selection to such posts by awarding them 5% of the total aggregate maximum marks of the relevant competitive examination held by the Andhra Pradesh Public Service Commission for recruitment acquiring eligibility to such posts.
566 "Having regard to the avowed policy of the Government to introduce Telugu progressively in the State in the coming years and as Telugu has been 'introduced as official language at Directorage level and also in the lower courts in certain Districts of the State and so as to give preference to candidates who have ob tained the basic educational qualification through the medium of Telugu, Government have after careful examination decided in consulta tion with the Andhra Pradesh Public Service Commission that such candidates to give weightage of 5% of the total aggregate maximum marks of all the competitive examinations of the Andhra Pradesh Public Service Commission for recruitment to all the non gazetted poStS of all services.
There is no dispute that the Order in its own terms applies to selection carried on through the State Public Service Commission; nor is there any dispute that the selection of Sub Inspectors, for the relevant period was being carried on by a body other than the State Public Service Commission.
The Tribunal observed as follows: "We cannot the rule too literally and defeat the object and purpose with which it has been made.
If the object and purpose are kept in view, then ' we have no hesitation m holding that it applies to all selections irrespective of the body that makes selections in the State.
We see no merit in the literal con struction suggested by Sri Sagar.
" We are told that the validity of the Government Notifi cation under challenge on the ground that the Government have no authority to make such a direction and that chal lenge is in an independent petition pending disposal before this Court.
Since this petition is not one challenging the Notification but seeking its extension to areas not covered by the Notification in terms, disposal of this petition has no bearing on the petition which challenges the Notifica tion.
The State Government is the authority to take a policy decision.
Whether the decision is tenable or not in law, as we have just pointed out, is not to be decided here.
But since Government in their wisdom have specifically confined the application of the Notification to recruitment through the State Public Service Commission, we have not been 567 able to appreciate the decision of the Tribunal that it was also available to be extended to selection through bodies other than the State Public Service Commission.
Mr. Ramamurti appearing in.
support of the respondents ' cause has pointed out that if the Government Notification is confined to selection through the State Public Service CommissiOn, the Government Notification would be hit by Article 14 of the Constitution.
Therefore, according to Mr. Ramamurti, it was open to the Tribunal to read down the requirement by saying that the benefit of the Notification would be applicable to all categories of selection.
We have not been able to agree with Mr. Ramamurti that when the Notification is specific and is intended to apply to a specified group of cases for selection, it would be open to the Tribunal to extend its application beyond what has been clearly.
Specified.
It is one matter to say that the Notification applied in a limited way may be hit by law; it is another to say that contrary to the restriction im posed, the Tribunal would allow the Notification to have general application.
We are inclined to agree with Mr. Madhava Reddy for the State that the Tribunal exceeded its jurisdiction in lifting the restriction imposed.
by the, Government in the matter of benefit of 5% of total aggregate marks to those candidates who wrote their papers in Telugu language.
The appeal is allowed and the order of the Tribu nal stands vacated.
No costs. ' T.N.A. Appeal al lowed.

summary/full:
The Government of Andhra Pradesh issued an order dated 18.11.81 which provided that in respect of appointments to NonGazetted posts of all services, candidates who have obtained their basic educational qualification through the medium of Telugu shall be given weightage of 5% marks.
But the benefit of the order was confined to selection made through the State Public Service Commission.
The State Administrative Tribunal held that the order applies to ' all selections irrespective of the body that makes selection in the State and extended the benefit of the order to the selection of the Sub Inspectors of Police made through the State level Recruitment Board.
Against the order of the Tribunal, the State of Andhra Pradesh filed an appeal to this Court.
Allowing the appeal, this Court, HELD: 1.
The Tribunal exceeded its jurisdiction in lifting the restriction imposed by the Government in the matter of benefit of 5% marks.
The order of the Tribunal is vacated.
[567D E] 2.
The State Government is the authority to take a policy decision.
Whether the decision is tenable or not in law, is not to be decided by the Court.
Since Government in their wisdom have specifically confined the application of the Notification to recruitment through the State Public Service Commission, the decision of the Tribunal that it was also available to be extended to selection through bodies other than the State Public Service Commission, cannot be appreciated.
[566H, 567A] 565 3.
When the Notification is specific and is intended to apply to a specified group of cases for selection, it would not be open to the Tribunal to extend its application beyond what has been clearly specified.
It is one matter to say that the Notification applied in a limited way may he hit by law; it is another to say that contrary to the restriction imposed, the Tribunal would allow the Notification to have general application.
[S67C]