judgement:
ivil Appeals Nos.
1261 1264 of 1975.
(From the Judgment and Order dated 1/2.7.1975 of the Karnataka High Court in Writ Petition Nos.
1607, 1608 and 2739/74 respectively).
V.P. Raman, Addl.
(in CA.
1261/75) and B.R.G.K. Achar (In CAs.
1261 1264/75) for the Appellants.
D.V. Patel (In CA.
1261/75), S.S. Khanduja & S.K. Jain for Respondents 1 2 in CA.
1261/75 and Respondent No. 1 in CAs.
2263 1264/75.
V.P. Raman, Addl.
General and Girish Chandra for Intervener in CA 1261/75.
The Judgment of the Court was delivered by GUPTA, J.
These are four appeals brought on certifi cates of fitness granted by the High Court of Karnataka.
The question which according to the High Court needs to be decided by this Court was framed as follows: "whether in the personality test of candi dates for selection to public appointments, the selecting authority should allot separate marks for each of the seven qualities required to be judged in a candidate or whether it is permissible for the selecting authority to allot marks in a lump in each personality test.
" Considering the facts of these cases which we will presently state, the question seems to have been framed a little too broadly.
The Karnataka Public Service Commission (called the Commission hereinafter) by its notification dated Sep tember 7, 1972 called for applications for the combined competitive examinations under the Karnataka Recruitment of Gazetted Probationers (Class I and II Post appointment by Competitive Examinations) Rules, 1966.
In response to this notification, the respondents in these appeals along with others applied for selection.
The Commission held a written examination followed by a personality test as pro vided by rule 9 of the rules and sent a list of 30 candi dates whom they selected for appointment as class I gazetted probationers, and another list of 88 candidates for appoint ment as class II gazetted probationers.
The manner in which the personality test is to be held is laid down in Part IV of Schedule 11 to Rules, the relevant portion of which is as follows: "Personality test carrying a maximum marks of 200 for all Services.
The candidates will be interviewed by the Commission who will have before them their particulars such as qualification, experience, age etc.
They will be asked questions of general interest, the object of the viva voce is to assess the personal suitability of the candi dates for.
the service or services for which they have applied.
The 325 qualities to be judged at the time of viva voca are the mental alertness, critical powers of assimila tion, clear and logical exposition, balance of judgment, variety and depth of interest, ability for social cohesion and leadership and intellectual depth of the candidates.
" Five of the respondents in the four different appeals who were not selected, M. Farida, P.V. Mohan, B.R. Kulkarni, L.V. Dharmayat and M.R. Devappa had applied for the posts of gazetted probationers, class II, two of them, Farida and Mobart, were also applicants for the class I post.
They filed writ petitions in the Karnataka High Court, Farida and Mohan jointly, and each of the three others separately, challenging the selec tions made.
Their common grievance was that the personality test held by the Commission was invalid as the selection committee did not award separate marks for each of the seven qualities which were required to be judged in the candidates at the test.
Admittedly, the selection committee did not allot separate marks for each of the specified qualities, but awarded a block mark to each candi date in assessing his personality with reference to those qualities.
The argument for the writ peti tioners in the High Court was that the personality test as required under the Rules was an objective test based upon seven factors or criteria, and, therefore, it was essential that separate marks were allotted in respect of each such factor or criterion.
In support of this contention reliance was placed on a decision of the Mysore High Court, D.G. Viswanath vs Chief Secretary, Government of Mysore, (1) and the decision of this Court in ,A. Periakaruppan & ,Anr.
vs State of Tamil Nadu & Ors.
(2) which appears to affirm the view expressed in Viswanath 's case.
On behalf of the State of Karna taka it was contended that the seven qualities referred to in Part IV of schedule II were merely different facets of the integrated personality of a candidate which could not easily be demarcated from one another, and, therefore, awarding a block mark on an appraisal of the personality of the candidate as a whole was the correct method.
The High Court found that there was "considerable force in the contention of the learned Government advocate", but felt that in view of the decision in Periakatup pan 's case the writ petitions must succeed, and by a common judgment allowed the. petitions directing the State of Karnataka and the commission to hold a fresh personality test.
These appeals arise out of these four writ petitions.
In Periakaruppan 's case this Court was consid ering a case of admission to certain medical col leges in the State of Tamil Nadu.
In that case the selection committees were authorised to give a maximum of 75 marks at the interview on the basis of the following tests: 1.
Sports or National Cadet Corps activities; 2.
Extra curricular special services; 3.
General physical condition and endurance; 4.
General ability; and 5.
Aptitude.
(1) [19631 2 Mysore L.J. 302.
(2) [19711 2 S.C.R. 430.
326 periakaruppan 's case came up on a writ petition before this Court.
The petitioners in that case challenged the selections, inter alia, on the ground that the selections were manipulated by the Government.
This Court came to the conclusion that the allegations of malafide had not been estab lished, but by its judgment and order dated Septem ber 23, 1970 directed the State of Thamil Nadu to constitute a separate committee for selection on the view that as the previous selection committee had not divided the "interview" marks under the aforesaid five different heads but awarded marks in a lump, the interview was vitiated.
This Court accordingly ordered that the Committee should allot separate marks under the five heads mentioned in the rule.
periakaruppa 's case approved the decision of the Mysore High Court in Viswanath 's case.
The Mysore High Court had held that it could not be said that the Government had conferred an unguided power on the selection committees and, therefore, "in the absence of specific allocation of marks for each head, it must be presumed that the Government considered that each of the heads should carryas being equal in importance to any other," and that it must be inferred that the intention of the Government was that each one of those heads should carry equal marks.
It appears that periakaruppan came to this Court a second time challenging the selection made by the new selection Committee constituted pursuant to the order of this Court dated September 23, 1970; one of the grounds of challenge was that despite the direction in the earlier judgment, the selection committee did not distribute the "interview" marks equally among the five heads.
The second writ petition made by periakaruppan also succeeded and this Court again quashed the impugned selection.
(1) Mr. Raman, Additional Solicitor General of India, appearing for the appellants and the inter vener, Union Public Service Commission, sought to distinguish parliakaruppan 's case from the cases before us on the same ground on which the Government Advocate made a similar attempt in the High Court.
Mr. Raman submitted that admission to technical or professional courses with which peria karuppan 's case was concerned stood on a different footing from selection of candidates for adminis trative services as in these cases.
It was argued that the test in the former case may be regarded as an objective test but in the latter it has to be subjective because the qualities specified here are intangible qualities.
We do not think it is possible to distinguish periakaruppan 's case on this ground.
For, as pointed out in the judgment under appeal, some of the qualities for test in Viswanath 's case which periakaruppan approved, were also intangible, like aptitude and personali ty.
Further, even where the qualities to be tested are intangible qualities, if the relevant rule required that separate marks should be allotted for each, the interviewers have to follow the rule and do the best under the circumstances.
Whether a block mark should be given after the interview on a consideration of the qualities evinced by a candidate, or marks are to be allotted separately under each head depends, in our opinion, upon the rule regulating the examination.
In periakaruppan 's case it was held that the inten tion of the Government was that each of the 327 specified qualities should carry equal marks.
In these appeals we have not been called upon to decide whether the rule concerned in Periakarup pan 's case was correctly interpreted.
We do not however think that it would be correct to assume as a general proposition that in every case where the interviewing body is asked to take into considera tion several specified qualities, they must be of equal value and separate marks should be allotted under each head; on the contrary, in our opinion, where the rules do not contain a clear direction, it would be reasonable in such cases to suppose that the intention is that there should be a block assessment on an integrated test.
It was observed in Periakaruppan 's case that conceding to the selection committee the right to award block marks would enable the selection committee to act arbi trarily and allot marks "as it pleased".
It is not clear how the position is altered if the committee has to allot marks separately under each head if it wished to proceed "as it pleased".
On this point it may be relevant to refer t.? what this Court said in R. Chitralekha and Anr.
vs State of Mysore & Ors.
(1) "In the field of education there are diver gent views as regard the mode of testing the capacity and calibre of students in the matter of admissions to colleges.
Orthodox educationists stand by the marks obtained by a student in the annual examination, The modern trend of opinion insists upon other additional tests, such as inter view, performance in extra curricular activities, personality test, psychiatric tests etc.
Obviously we are not in a position to judge which method is preferable or which test is the correct one.
If there can be manipulation or dishonesty in allot ting marks at interviews, there can equally be manipulation in the matter of ' awarding marks in the written examinations.
In the ultimate analy sis, whatever method is adopted its success depends on the moral standards of the members constituting the selection committee and their sense of objec tivity and devotion to duty.
This criticism is more a reflection on the examiners than on the system itself.
The scheme of selection, however perfect it may be on paper, may be abused in practice.
That it is capable of abuse is not a ground for quashing it.
" We do not think that the total arrived at by adding up the separate marks awarded for the different qualities is always a true measure of a candidate 's suitability.
An illustra tion from Periakaruppan 's case would serve to clarify the point.
Of the five qualities mentioned there, suppose a candidate secures full 15 marks for extra curricular activi ties but fails to get any credit under any of the other four heads, and another candidate gets a few marks under each head aggregating, say, 14 marks, one mark less than the total marks secured by the first candidate.
Which of the two should be considered more qualified for admission to medical profession ? It would take great courage, we think, to hold that the candidate who secured 15 marks was more suitable.
(1) ; (p. 382).
5 104SCI/76 328 The question therefore is whether rule 9 read with Part IV of Schedule 11 of the Mysore Recruitment of Gazetted Probationers (Class I and II Posts Appointment by Competi tive Examinations) Rules, 1966 required the selection committee to award separate marks for the seven qualities mentioned in Part IV.
Rule 9, so far as it is relevant for the present purpose, says that the Commission shall call for a personality test five times the number of candidates as there are vacancies in the services in the order of merit on the basis of the results of written papers.
Personality is commonly understood as an aggregate of traits that identifies a person and distinguishes him from others.
Quite often with some practical aim, like selecting the most promising students for admission to particular courses or picking out the suitable ones from a group of job applicants, emphasis is laid some of the attributes.
The end result may not be an assessment of the whole per sonality, but attributes are abstracted for study in an attempt to evaluate the man for the purpose in view.
Part IV of Schedule 11 which provides the details of the test calls it a personality test, the object of which is to assess the personal suitability of the candidates for the service or services for .which they have applied.
The candidates will be asked questions of general interest, on the answers to which, it appears, the assessment would depend.
It is further provided that the qualities to be Judged are: mental alertness, critical powers of assimila tion, clear and logical exposition, balance of judgment, variety and depth of interest, ability for social cohesion and leadership and intellectual depth.
It seems to us in the context that the qualities are mentioned only as guide, as indicating the attributes to be kept in view, in assess ing the personality of the candidates.
It seems hardly possible in the test contemplated to allocate separate marks for each of the various qualities specified, because most of them overlap one another and are so intermixed that they cannot be separated, Also, the test carries a maximum mark of 200; it seems a little absurd to suppose that the seven qualities to be judged at the interview are of equal value, each carrying 28 4/7 marks.
This further confirms the view that Part IV of Schedule 11 never intended that separate marks should be allotted for the several qualities stated therein.
Reading Rule 9 with Part IV of Schedule 11, we are of opinion that the interviewing body was required to award a block mark on a total impression of the personality of each candidate after giving due consideration to the seven qualities specified in Part IV.
For these reasons we think that the appeals should succeed.
We therefore allow the appeals and dismiss the writ petitions.
There will be no order as to costs P.B.R. Appeals allowed.

summary/full:
Rule 9 of the Karnataka Recruitment of Gazetted Proba tioners (Class I and II Posts appointment by Competitive Examinations) Rules, 1966, Prescribes a written examination for selection of candidates for the service followed by a personality test.
The qualities to be judged at the time of viva voce, stipulated in Part IV of Schedule II to the rules are mental alertness, critical powers of assimilation, clear and logical exposition etc.
In their writ petitions before the High Court the re spondents, who were the unsuccessful candidates in the selections, impugned the personality test on the ground that the Selection Committee did not award separate marks for each of the _seven qualities required to be judged in the candidates at the test.
Following the decision of this Court in A. Periakaruppan & Anr.
vs State of Tamil Nadu & Ors.
the High Court allowed the petitions and directed the Service Commission to hold a fresh personality test.
On the question whether r. 9 read with Part IV of Sched ule 1I required the Selection Committee to award separate marks for the seven qualities: Allowing the States appeal, HELD: (1) It would not be correct to assume as a general proposition that in every case where the interviewing body is asked to take into consideration several specified quali ties.
they must be of equal value and separate marks should be allotted under each head.
Where the rules do not contain a clear direction, it would be reasonable to suppose that the intention is that there should be a block assessment on an integrated test.
[327 B] In the instant case the interviewing body was required to award a block mark on a total impression of the personal ity of each candidate giving due consideration t0 the seven qualities specified in Part IV.
Part IV of the Schedule never intended that separate marks should be allotted for the seven qualities stated therein.
[328 F] (2) Personality is commonly understood as an aggregate of traits that identifies a person and distinguishes him from others.
Quite often with some practical aim.
emphasis is laid on some of the attributes.
The end result may no be an assessment of the whole personality, but attributes are abstracted for study in an attempt to evaluate the man for the purpose in view.
[328 C] In the instant case the qualities are mentioned only as guide, as indicating the attributes to be kept in view in assessing the personality of the candidates.
It is hardly possible in the test contemplated to allocate separate marks for each of the various qualities specified because most of them overlap and are so intermixed that they cannot be separated.
The test carries a maximum mark of 200; it is a little absurd to suppose that the seven qualities to be judged at the interview are of equal value each carrying 28 4/7 marks.
[328 E] A. Periakaruppan & Am '.
vs State of Tamil Nadu & Ors.
[19711 2 SCR 430 distinguished and held inapplicable.
324 R. Chitralekha and Anr.
vs State of Mysore & Ors.
; , 382 referred to.


judgement:
n No. 74 of 1975.
L.N. Sinha, Sol.
General of India and B. Datta, for the Petitioner.
A. K. Sen, B. P. Singh, Shambhu Nath Jha and U.P. Singh for the Respondents (For State of Bihar) R 1 and R 2. D. Mookherjee, and S.K. Nandy, for the Respondent (State of Assam) R 3 and R 4.
The Judgment of the Court was delivered by RAY, C.J.
The Petitioner in this Writ Petition raises the question that the supplies of crude oil made by the Petitioner Oil and Natural Gas Commission, referred to as the Commission to Indian Oil Corporation Limited, referred to as the Corporation are not exigible to Salestax either by the State of Assam or the State of Bihar under the or the Bihar Sales Tax Act respectively.
The petitioner contends that the supplies by the Commission to the Corporation are pursuant to directions/orders of the Central Government, and, therefore, there is no Contract of sale.
The petitioner in particular contends that the Com mission is obliged to supply to the Corporation and the petitioner has no volition or freedom in the matter.
The petitioner, therefore, contends that there is no contract of sale between the Commission and the Corporation.
The second contention of the petitioner is that if it be held to be sales these are inter state sales under section 3(a) of the and the State of Bihar is not competent to levy Sales tax under section 16(5) of the Bihar Sales Tax Act.
In order to find out as to whether the transactions between the Commission and the Corporation amounted to a Sale, it is necessary to ascertain the correct facts.
The letter dated 15 June 1968 is important.
It is written by the Corporation to the Commission.
The Corpora tion States as follows "I am writing to confirm that Indian Oil Corporation would be in a position to receive 300 tonnes a day of Lakwa crude via the Oil Pipeline any time from today.
We would also wish you to augment the supplies so as to reach about a 356 million tonnes per annum as soon as possible.
The above 300 tomes 'will be in addition to the ' supplies that we are receiving currently from OIL (Oil India Ltd.) and by rail from Rudrasagar.
Kindly arrange to supply full analytical data regarding the crude that you would be sending from Lakwa.
I would also suggest that the pricing arrangement may also be worked out regarding the supply and intimated to us, if necessary, after consulting OIL.
" The next important document relates to the Minutes of the meeting held at the Office of the Chairman of the Corpo ration at New Delhi on 8 August, 1968.
The representatives of the Corporation, the Commission and Oil India Limited were present.
Crude oil supplied both by the Commission and Oil India Limited come through the pipeline belonging to Oil India Limited to refineries at Gauhati and Barauni belonging to the Corporation.
The manner of measurement and of payment for crude is ascertained by the Corporation from the Commis sion and Oil India Limited.
At the meeting held on 18 October 1968, the Central Government representatives and representatives of the peti tioner, Oil India Limited and the Corporation were present.
It was decided that crude oil which was being delivered to the refineries of the Corporation at Gauhati and Barauni is a mixture of Oil India Limited crude and the Commission crude.
Oil India Limited would send the bills for the entire quantities of crude, so delivered, giving the bifur cation of crude belonging to Oil India Limited and the Commission with API gravity of each.
The document dated 23 February, 1968 records the price of crude oil purchased by the Corporation from the Commis sion and the basis on which payment should be made.
Another document dated 17 February, 1969 written by the Central Government to Oil India Ltd., shows that crude oil would be supplied to the Barauni, Gauhati and Digboi refin eries as mentioned therein.
For the Barauni Refinery, Oil ' India would supply a certain quantity and the Commission the balance.
In case the Commission 's supply fell short, it would be made good by Oil India Limited.
For the Gauhati Refinery, certain quantity would be supplied by Oil India Limited and the remainder would be deemed to have been supplied by the Commission.
The requirements of Digboi refinery would be met by Oil India Limited.
The next document is dated 7 August 1973 incorpo rating the Minutes of the meeting held on that day at the Ministry of Petroleum & Chemicals to discuss the Sales Tax liability of the Commission crude Sold to the Corporation.
The representatives of the Ministries of Petroleum & Chemi cals and of Finance, the Commission and Oil India Limited were present.
After discussion, it unanimously decided that whatever principle had been adopted in the past for computation of pipeline tariff payable by the Commission should also be adopted 357 for payment of Sales tax by the Commission.
Since for tariff computation all of Commission 's crude is deemed notionally to be delivered to Barauni Refinery and none to Gauhati Refinery, the Sales tax liability of the Commission would also accrue on the principle that all of its crude was being sold to Barauni Refinery.
The Commission is described by the Solicitor General to be a statutory body which has no option either with regard to the production or supply and the directions and decisions of the Government leave no choice with the Commission in regard to supplies.
This Court in Salar Jung Sugar Mills Ltd. Etc.
vs State of MysOre & Ors.
C) laid down the following proposi tions: First, statutory orders regulating the supply and distribution of goods by and between the parties under Control Orders in a State do not absolutely impinge on the freedom to enter into contract.
Second, directions, deci sions and orders of agencies of the Government to control production and supply of commodities, may fix the parties to whom the goods are to be supplied, the price at which these are to be supplied, the time during which these are to be supplied and the persons who has to carry out these direc tions.
In such cases it cannot be said that compulsive directions rob the transactions of the character of agree ment.
The reason is that the transfer of property which constitutes the agreement in spite of the compulsion of law is neither void nor voidable.
It is not as result of coer cion.
The statute supplies the consensus and the modality of consensus is furnished by the statute.
There is privity of contract between the parties.
The other third, fourth, fifth and sixth propositions are these.
Third, such a transaction is neither a gift nor an exchange nor a hypothecation nor a loan.
It is a trans fer of property from one person to another.
There is con sideration for the transfer.
There is assent.
The law presumes the assent when there is transfer of goods from one to the other.
Fourth, a sale may not require the consensual element and that there may, in truth, be a compulsory sale of property with which the owner is compelled to part for a price against his will and the effect of the statute in such a case is to say that the absence of the transferor 's con sent does not matter and the sale is to proceed without it.
In truth, transfer, is brought into being which ex facie in all its essential characteristics is a transfer of sale.
Fifth, delimiting areas for transactions or denoting parties or denoting price for transactions are all within the area of individual freedom of contract with limited choice by reason of ensuring the greatest good for the greatest number of achieving proper supply at standard or fair price to eliminate the evils of hoarding and scarcity on the one hand and ensuring availability on the other.
Sixth, after all the transactions in substance represent the out going of the business and the price would come into computation of prof its.
Judged by the principles laid down by this Court in Salar Jung Sugar Mills ' case, which is a decision by a seven Judge Bench, there (1) [1972] 2 S.C.R. 228.
358 is no doubt that the transactions in the present case amounted to a sale of crude oil by the Commission to the Corporation.
It is true that the Government decided and directed the Commission to supply to the Indian Oil Corpora tion at a price to be fixed, but the transaction is in course of business conducted by the Commission.
It is the business of the petitioner under the statute to plan, promote, organise and implement programmes for the development of petroleum resources and the production and sale of petroleum products produced by it and to perform such functions as the Central Government may, from time to time, assign to the Commission.
These are the functions of the Commission under section 14 of the Oil & Natural Gas Commission Act, 1959.
Further, section 29 of the Act states that "the Commission shall be deemed to be a Company within the meaning of any enactment for the time being in force providing for the levy of any ' tax or fee by the Central Government or a State Government and shall be liable to pay such tax or fee accordingly".
Section 31 contemplates power of the Central Government to make rules inter alia prescrib ing the conditions subject to which, and the mode in which, contracts may be entered into by or on behalf of the Commis sion.
The provisions of the Oil & Natural Gas Commission Act show that the Commission is engaged in the business of producing crude oil in Assam and the supply of the crude oil.
The supply to the Corporation is a sale transaction fulfilling all the ingredients of a sale.
The supply of crude oil by the Commission to the Barauni Refinery of the Corporation is also a sale in the course of inter state trade.
The movement of crude oil from Assam to Barauni is pursuant to the Contract for sale of crude oil.
The directions given by the Government are because of the character and constitution of the Commission.
Direc tions and decisions do not detract from the sale of crude oil by the Commission to the Corporation.
These statutory Corporations work in collaboration with the Central Govern ment particularly the Ministries of Petroleum and Finance for policy and planning.
The State of Bihar raised a feeble contention that it was not an inter State sale.
The delivery may be in Assam or in Bihar at Barauni but the movement of goods is the result of contract and as an incident to the agreement between the Commission and the Corporation.
The State of Assam has lawfully levied the Central Sales Tax on the petitioner.
The State of Assam is entitled to levy Central Sales Tax on the petitioner.
The Commission has been paying Sales Tax since the commencement of sales.
It is made clear that it is open to the Commission to make applications for refund, if any, in accordance with the Sales Tax Law.
For the foregoing reasons the Writ Petition is dis missed.
Parties will pay and bear their own costs.
V.P.S. Petition dis missed.

dataset_name: IN-Abs

summary/full:
Under the , it is the business of the Oil and Natural Gas Commission to plan, promote, organise and implement programmes for the development of petroleum resources and the production and sale of petroleum products produced by it and to perform such functions as the Central Government may, from time to time, assign to it.
Under section 29 of the Act, the Commission shall be deemed to be a Company, liable for any tax or fee levied by the Central or State Government.
Section 31 empowers the Central Government to make rules prescribing the conditions subject to which, and the mode in which, contracts may be entered into by or on behalf of the Commis sion.
The Commission is engaged in the business of produc ing crude oil in Assam and supplying it to the refineries of the Indian Oil Corporation at Gauhati in Assam and Barauni in Bihar.
It was decided by the Government of India and agreed to by the Commission; that the crude is deemed no tionally to be delivered only to Barauni Refinery and not to Gauhati Refinery, and that payment of Sales tax by the Commission is to be on the same principle.
The Commission however challenged, in a petition to this Court, its liability to pay any sates tax either under the Central Sales Tax Act to the State of Assam or the State Sales Tax to the .State of Bihar, on the ground, that, in supplying crude oil to the Corporation there was no contract of sale between the Commission and the Corporation, because, the supply was pursuant to.
directions and orders of the Central Government and the Commission had no volition or freedom in the matter.
The Commission also contended that assuming that they are sates they are inter state sales, under the , and the State of Bihar was not competent to levy any State sales tax.
HELD: (1) The supplies of crude oil by the Commission to the Brauni Refinery of the Corporation satisfy all the ingredients of a sale and amount to sales by the Commission to the Corporation.
[356 A] (a) Statutory orders regulating the supply and distribu tion of goods by and between the parties under Control Orders do not absolutely impinge on the freedom to enter into contract.
[357 C] (b) Directions, decisions and orders of agencies of the Government to control production and supply of commod ities, may fix the person who has to carry them out, the parties to whom the goods are to be supplied, and he price at which, and the time during which they are to be supplied.
In much cases it cannot be said that compulsive.
directions rob the transactions of the character of agreement.
There is privity of contract between the parties, he statute supplying the consensus and the modality of consensus.
[357 D E] (c) Such a transaction is a valid transfer of, property for consideration and he law presumes assent when there is transfer of goods from one to the other.
[357 F] (d) Also, a sale may not require the consensual element and there may compulsory sale of property under a statute for a price fixed against the owner 's will.
(e) Delimiting areas for transactions or denoting par ties or price for transactions are all within the area of individual freedom of contract with limited choice by reason of ensuring the greatest good for the greatest number by achieving proper supply as standard or fair price.
[357 G] .
(f) The transactions in substance represent the outgoing of the business and the price would come into computation of profits.
[357 G] Salar Jung Sugar Mills Ltd. Etc.
v, State of Mysore & Ors.
[1972] 2 S.C.R. 228 followed.
(2) The movement of crude oil from Assam to Barauni in Bihar is pursuant to and as an incident to the contract for, sale between the Commission and the Corporation.
The Sales are therefore inter state sales.
and under the Central Sales tax Act only the.
State of Assam is entitled to levy central sales tax on the Commission.
[358 G]


judgement:
286 of 1955.
Under Article 32 of the Constitution for the enforcement of Fundamental Rights.
H.Mahapatra and G. C. Mathur, for the petitioners.
C. K. Daphtary, Solicitor Generalfor India, (Porus A. Mehta and P. G. Gokhale, with him), for respondent No. 1. 921 1955.
October 27.
The Judgment of the Court was delivered by BOSE J.
This judgment will also govern Petitions Nos. 287, 288, 289 and 304 of 1955.
We will set out the facts in Petition No. 286 of 1955.
The others follow the same pattern.
The dispute is about fishery rights in the Chilka lake which is situate in what was once the estate of the Raja of Parikud.
This estate vested in the State of Orissa under the Orissa Estates Abolition Act, 1951 (Orissa Act I of 1952) on 24 9 1953 and has now ceased to exist in its original form.
The Act came into force on 9 2 1952.
The further facts are set out in paragraphs 2 and 3 of the petition in the following terms: "That the petitioners carry on the business of catching and selling fish particularly.
from fisheries within the said lake.
That long before the vesting of the estate the petitioners had entered into contracts with the exproprietor and had obtained from the latter, on payment of heavy sums, licences for catching and appropriating all the fish from the fisheries detailed in the schedule given in the accompanying affidavit and had ,obtained receipts on payment in accordance with the prevailing practice".
The lake is divided into sections and this petition is concerned with four of them.
The licenses relating to them were purchased as follows: I On 30 7 50 for rights in Gerasar Prawn for 1955 56 2.
On 2 8 50 for rights in Jayamal Prawn for 1955 56 3.
On 18 9 51 for rights in Solakudi Prawn for 1955 56 4.
On 6 5 52 for rights in Jayamal Chungudi for (1956 57 (1957 58 (1958 59 It will be seen that though the licenses were acquired before the estate vested in the State of Orissa they 922 were for future years, all after the date of vesting.
The State of Orissa refused to recognise these licenses and were about to re auction the rights when the petitioners filed the present petition seeking writs under article 32 on the ground that their fundamental rights under articles 19(1)(f) and 31 (I) were, or were about to be, infringed.
The first question that we have to determine is whether the petitioners acquired any rights or interests in "property" by their several "purchases", as articles 19(1)(f) and 31(1) are dependent on that.
In their petition the petitioners claim that the transactions were sales of future goods, namely of the ,fish in these sections of the lake, and that as fish is moveable property Orissa Act I of 1952 is not attracted as that, Act is confined to immoveable I property.
,We agree with the learned Solicitor General that if this is the basis of their right, then their petition under article 32 is misconceived because until any fish is actually caught the petitioners would not acquire any property in it.
There can be no doubt that the lake is immoveable property and that it formed part of the Raja 's estate.
As such it vested in the State of Orissa when the notification was issued under the Act and with it vested the right that all owners of land have, to bar access to their land and the right to regulate, control and sell the fisheries on it.
If the petitioners ' rights are no more than the right to obtain future goods under the Sale of Goods Act, then that is a purely personal right arising out of a contract to which the State of Orissa is not a party and in, any event a refusal to perform the contract that gives rise to that right may amount to a breach of contract but cannot be regarded as a breach of any fundamental right.
But though that is how the matter is put in the petition we do not think that is a proper approach to this case.
The facts disclosed in paragraph 3 of the petition make it clear that what was sold was the right to catch and carry away fish in specific sections of the lake over a specified future period.
That amounts to 923 a license to enter on the land coupled with a grant to catch and carry away the fish, that is to say, it is a profit a prendre: see 11 Halsbury 's Laws of England, (Hailsham Edition), pages 382 and 383.
In England this is regarded as an interest in land (11 Halsbury 's Laws of England, page 387) because it is a right to take some profit of the soil for the use of the owner of the right (page 382).
In India it is regarded as a benefit that arises out of the land and as such is immoveable property.
Section 3 (26) of the General Clauses Act defines "immoveable property" as including benefits that arise out of the land.
The Transfer of Property Act does not define the term except to say that immoveable property does not include standing timber, growing crops or grass.
As fish do not come under that category the definition in the General Clauses Act applies and as a profit a prendre is regarded as a benefit arising out of land it follows that it is immoveable property within the meaning of the Transfer of Property Act.
Now a "sale" is defined as a transfer of ownership in exchange for a price paid or promised.
As a profit a prendre is immoveable property and as in this case it was purchased for a price that was paid it requires writing and registration because of section 54 of the Transfer of Property Act.
If a profit a prendre is regarded as tangible immoveable property, then the "property" in this case was over Rs. 100 in value.
If it is intangible, then a registered instrument would be necessary whatever the value.
The "sales" in this case were oral: there was neither writing nor registration.
That being the case, the transactions passed no title or interest and accordingly the petitioners have no fundamental right that they can enforce.
It is necessary to advert to Firm Chhotabhai Jethabai Patel & Co. vs The State of Madhya Pradesh(1) and explain it because it was held there that a right to "pluck, collect and carry away" tendu leaves does not give the owner of the right any proprietary interest in the land and so that sort of right was not an "en (1) 117 924 cumbrance" within the meaning of the Madhya Pradesh Abolition of Proprietary Rights Act.
But the contract there was to "pluck, collect and carry away" the leaves.
The only kind of leaves that can be "plucked" are those that are growing on trees and it is evident that there must be a fresh crop of leaves at periodic intervals.
That would make it a growing crop and a growing crop is expressly exempted from the definition of "immoveable property" in the Transfer of Property Act.
That case is distinguishable and does not apply here.
It was then argued that a contract is "property ' within the meaning of articles 19(1)(f) and 31(1).
Again, we need not decide this because even if it be assumed that it is that kind of property the State of Orissa has not taken the petitioners ' contract away I from them or prevented them from "acquiring, holding or disposing" of it.
They are free to sue on it or to assign it if they want.
The State merely says, as any other person might say: "I was not a party to that contract.
Neither its rights nor its liabilities have devolved on me and I refuse to recognise it or to assume the obligations of either contracting party".
If the State is wrong in its attitude that may give rise to a suit against it for damages for breach of contract or possibly, (though we do not say it would), to a right to sue for specific performance; but no question under articles 19(1)(f) and 31(1) can arise because the State has not confiscated or acquired or taken possession of the contract as such.
If it had it would have claimed the benefits under it.
It would have taken the money that the petitioners paid to the Raja from the Raja or demanded it over again from the petitioners.
But it is not doing that.
It simply refuses to recognise the existence of the contract.
The petition fails and is dismissed with costs.

summary/full:
The petitioners obtained oral licenses for catching and appropriating fish from specified sections of the Chilka Lake from its proprietor, the Raja of Parikud, on payment of heavy sums and obtained receipts in accordance with the prevailing practice.
This was before the passing of the Orissa Estates Abolition Act of 1951 by which ownership of the estate vested in the State of Orissa.
The licenses, however, were in respect of years subsequent to such vesting.
The State of Orissa refused to recognise them and was seeking to reaction the rights of fishery.
The petitioners contended that it had thereby infringed or was about to infringe their fundamental rights under articles 19(1)(f) and 31(1) of the Constitution and claimed that the transactions being sales of future goods, namely, the fish, the Act which was confined to immovable property had no application.
Held, that the right sought to be acquired by the petitioners by their several purchases was not in respect of any future goods as claimed by them but was a license to enter on the land coupled with a grant to catch and carry away the fish, in other words, a profit a prendre which is immovable property within the meaning of the Transfer of Property Act read with section 3(25) of the General Clauses Act.
Accordingly section 54 of the former Act applies.
That as the sale of the profit a prendre in the present cage was valued at more than one hundred rupees and was effected without writing and registration it contravened section 54 of the Transfer of Property Act, and so no title or interest therein passed to the petitioners and consequently, they bad no fundamental rights to enforce.
Firm Chhotabhai Jethabai Patel & Co. vs The State of Madhya Pradesh, ([1953] S.C.R. 476), distinguished and held inapplicable.
That it was not necessary in the present case to decide whether the contract was property within the meaning of articles 19(1)(f) and 31(1), but assuming it to be so, the State has not taken such property away from the petitioners or prevented them from acquiring, holding or disposing of it.
The State merely refuses to recognise the contract and refuses to consider itself bound by it.
That may give a cause of action for a suit on the contract but no fundamental right arises as the State has not confiscated or acquired or taken possession of the contract as such by claiming any benefits under it.


judgement:
Appeal No. 212 of 1976.
(From the Judgment and Order dated 18 2 1975 of the Bombay High Court in Civil Revision Appln.
No. 741/74).
Soli J. Sorabji, P.H. Parekh, Miss Manju letly and M/s Dharia & D.D. Kapadia ' for the appellant.
B.K. Desai, S.S. Khanduja and Vijay Gandotra for the respondent.
P.H. Parekh for the Intervener.
The Judgment of the Court was delivered by UNTWALIA, J.
The appellants in this appeal by special leave had filed an application under section 41 of The Presidency Small Cause Courts Act, 1882 hereinafter re ferred to as the S.C.C. Act, against the respondent to compel him to quit and deliver up the possession of the premises in question.
The Small Cause Court made an order in favour ' of the appellants under section 43 of the S.C.C. Act.
On the filing of an application in revision by the respondent in the Bombay High Court, a learned single Judge of that Court has set aside the order of the Small Cause Court and dismissed the appellants ' application for eviction of the respondent.
Hence this appeal.
This Court does, as it ought to, act with restraint and is loathe to pass any harsh or unpalatable remark concerning the judgment of a High Court.
But sometimes constraint outweighs restraint and compels this Court in discharge of its duty to make some strong observations when it finds the judgment of the High Court running galore with gross and palpable mistakes of law almost amounting to judicial imbalance in the approach to the case.
We regret to say that this is one such case.
The appellants had allowed the respondents to occupy the shop premises in question which are situated outside Swa deshi Market, 405 Kalbadevi Road in Bombay under certain agreements of leave and licence which were renewed from time to time.
The last agreement was dated April 30, 1965.
Duration of the period of licence mentioned in this agreement was in the following terms: "(1) This agreement shall be deemed to have commenced from 1st May 1965 and shall remain in force for 11 months and will automatically come to an end on 31st March, 1966 on which day the Party of the Second Part shall remove himself from the premises of his own accord with all his arti cles and belongings and in event of the Party of the Second Part not clearing out of the premises on the said day viz., 31st March, 1966 the parties of the First Part shall be at liberty to remove the goods and articles of the party of the Second Part by themselves, by employment of labour at the cost and on account of the party of the Second Part and shall be entitled to stop and prevent the, Party of the Second Part from entering the premises and making use of the same by himself or his agent.
" The respondent did not vacate and remove himself from the premises as per the aforesaid term of the agreement.
He purported to claim to be a tenant of the premises and with that end in view his Advocate wrote a letter to appellant No. 1 on May 23, 1966 stating therein that the respondent was a tenant of the shop premises and had remitted the rent for the months of March and April, 1976.
A reply to the letter aforesaid of the respondent 's advocate was given on behalf of the appellants on June 14, 1966 refuting there in the respondent 's claim of being a tenant of the shop premises and asserting that he was a mere licensee.
It was also said that the said licence had automatically come to an end on March 31, 1966 and thereafter he was "no better than a trespasser".
Subsequent correspondence followed between the parties in which the appellants showed their readiness and willingness to accept money from the respondent by way of compensation for the use and occupation of the shop premises without prejudice to their rights and threatening to take legal action for getting the possession of the prem ises.
On the 10th July, 1967 the appellants filed an applica tion under section 41 of the S.C.C. Act.
The respondent contested that application, inter alia, on the ground that he was a tenant of the shop premises and was, therefore, protected against the eviction under The Bombay Rents, Hotel .and
Lodging House Rates Control Act, 1947 (for brevity, the Bombay Rent Act).
As per the requirement of section 42A of the S.C.C. Act, the question whether the respondent was a tenant of the appellants was tried as a preliminary issue by the Small Cause Court, Bombay.
A single Judge of that Court by his Judgment and order dated June 30, 1972 held against the respondent and found that he was not a tenant of the appellants in respect of the shop premises.
An appeal was taken by the respondent to a Bench of two judges of the Small Cause Court under section 406 42A(2) of the S.C.C. Act.
By a reasoned order dated Decem ber 11, 1972 the appellate Bench upheld the finding of the single Judge and summarily dismissed the appeal.
The re spondent filed a writ application in the High Court which after hearing the appellants was dismissed on July 3, 1973.
The Bombay Rent Act was amended by Maharashtra Act 17 of 1973.
By the amending Act, section 5(4A) and Section 15A were introduced in the parent Act to confer on the licensee, who had a subsisting agreement on February 1, 1973 the status and protection of a tenant under the Bombay Rent Act.
The respondent, thereafter, by an amendment of his written defence filed in the Small Cause Court proceeded to take the additional plea of protection under Maharashtra Act 17 of 1973.
Although the amendment was not fully and effec tively allowed by the Small Cause Court Judge, the parties had proceeded on the footing that such a plea became avail able to the respondent.
A learned single Judge of the Small Cause Court held that there was no subsisting agreement for licence on the 1st of February, 1973 as there was nothing on record to show that after 31st March, 1966 the leave and licence agreement between the parties was renewed or any fresh agreement was entered into.
In that view of the matter the Trial Court held that the respondent was not entitled to the protec tion of the Bombay Rent Act conferred on a licensee by Maharashtra Act 17 of 1973.
The Court allowed the appel lants ' application and made an order under section 43 of the S.C.C. Act directing the respondent to vacate and hand over peaceful possession of the premises to the appellants within one month from the date of the order i.e. the 11th Octo ber, 1974.
This order was not appealable.
Hence respondent filed a revision before the High Court.
A learned single Judge of the High Court by his judgment and order dated February 18, 1975 allowed the revision and, as stated above, set aside the order of the Small Cause Court and dismissed the appellants ' application for eviction of the respondent.
Mr. Sorabji, learned counsel for the appellants after drawing our attention to the relevant facts and the law involved in the case placed the judgment of the High Court to point out the glaring errors committed by it which were writ large on its face.
Mr. Desai appearing for the re spondent made a strenuous effect to persuade us to uphold the judgment of the High Court.
But in the circumstances of the case he could do no better than what has been said in the judgment.
Section 52 of The defines "licence" thus: "Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a licence.
" 407 It was no longer open to debate that the respondent was a mere licensee of the shop premises of which the appellants were the licensors.
Section 62(c) of the Easements Act says: "A license is deemed to be revoked (c) where it has been granted for a limited period, or acquired on condition that it shall become void on the performance or non perform ance of a specified act, and the period expires, or the condition is fulfilled;" By efflux of time, therefore, the licence stood revoked on the 1st of April, 1966.
Yet the licen see under section 63 of the Easements Act was entitled to a reasonable time to leave the property and to remove his goods which he had been allowed to place on such property.
In spite of being asked by the appellants to do so the respondent did not pay any heed.
Hence the appellants took recourse to section 41 of the S.C.C. Act.
The remedy of section 41 is available only after the permission or the licence granted to the licensee to go on the property has been withdrawn or revoked.
If the occupant of the property is not able to show any sufficient cause then order for possession follows under section 43.
We now proceed to quote the relevant words of section 5(4A) of the Bombay Rent Act: ""Licensee", in respect of any premises or any part thereof, means the person who is in occupation of the premises or such part, as the case may be, under a subsisting agreement for licence given for a licence fee or charge . . " The inclusive clauses thereafter in the definition of the 'licensee ' do not include a licensee in occupation of the premises whose licence already come to an end and in such a case the occupant would not be a licensee under a subsisting agree ment.
We now proceed to read section 15A: "( 1 ) Notwithstanding anything contained elsewhere in this Act or anything contrary in any other law for the time being in force, or in any contract, where any person is on the 1st day of February 1973 in occupation of any premises, or any part thereof which is not less than a room, as a licensee, he shall on that date be deemed to have become, for the purposes of this Act, the tenant of the landlord, in respect of the premises or part thereof, in his occupation.
(2) . . . . . . . " It is thus clear beyond doubt that in order to get the advantage of section 15A of the Bombay Rent Act, the occu pant must be in occupation of the premises as a licensee as defined in section 5(4A) on the 1st of February, 1973.
If he be such a licensee, the non obstante clause 10 1104SCI/76 408 of section 15A(1) gives him the status and protection of a tenant in spite ' of there being anything to the contrary in any other law or in any contract.
In other words, even as against the express terms of the subsisting contract of licence the licensee would enjoy the benefits of section 15A.
But if he is not a licensee under a subsisting agree ment on the 1st of February, 1973, then he does not get the advantage of the amended provision of the Bombay Rent Act.
A person continuing in possession of the premises after termination, withdrawal or revocation of the licence contin ues to occupy it as a trespasser or as a person who has no semblance of any right to continue in occupation of the premises.
Such a person by no stretch of imagination can be called a licensee.
If therefore, the respondent was not a licensee under a subsisting agreement in occupation of the premises on the 1st of February, 1973 he could not take shelter under section 15A of, the Bombay Rent Act.
The Trial Judge found against him.
Apart from the position that this was essentially a question of fact and a finding on which could not be interfered with by the High Court in exercise of its revisional power under section 115 of the Code of Civil Procedure, the High Court has done so, as we shall point out, by committing such gross errors of law and fact that we were constrained in the beginning of our judgment, though very reluctantly, to make some strong observations against the judgment of the High Court.
While reciting the facts of the case the learned Judge of the High Court states a fact in paragraph three of the judgment that the respondent was ordered to deposit in Court Rs. 29/ per month which he did.
We are happy to note that the learned Judge has rightly not rested his judgment on this ground of deposit of rent by the respondent.
There was nothing to show in the records of this case that the appel lants had ever accepted any money either in or outside court from the respondent after 31st of March, 1966 by way of any rent of the licenced premises.
A person continuing in occu pation of such premises after revocation of the licence is still liable to pay compensation or damages for their use and occupation.
If at any time such compensation had been paid or accepted it could not undo the effect of the revoca tion of the licence.
In the seventh paragraph of the judgment the learned Judge says: "In my judgment the filing of the proceeding under section 41 without terminating the licence and/or the permission granted to the petitioner does not automatically put an end to the licence which the petitioner had to occupy the premises.
" There are two infirmities in the said observation.
Firstly, according to the appellants ' case the licence stood revoked and withdrawn and then they filed the application under section 41 of the S.C.C. Act.
Secondly, the filing of the application itself may in certain circumstances have the effect of putting an end to the licence if it was subsist ing on the date of its filing.
But in any event, one thing is certain, that cannot have ' the effect of reviving the licence as opined by the learned Judge in the subsequent part of his judgment.
409 In the tenth paragraph of his judgment the learned Judge says: "The respondents have not relied on any notice served on the petitioner to show that they would treat the petitioner as a trespasser from March 31, 1966.
The respondents did not even describe the petitioner as a trespasser in proceed ings.
It must be therefore presumed that the re spondents voluntarily or involuntarily permitted the petitioner to occupy the premises till they filed their application under section 41 of the Presidency Small Cause Courts Act.
" In the next paragraph the learned Judge quotes the words: "position not better than that of a trespasser" from the appellants ' letter written so the respondent.
The contradiction in the judgment is apparent.
It is difficult to understand the significance of the observation "that the respondents voluntarily or involuntarily permitted the petitioner to occupy the premises".
Voluntary permission may amount to a fresh licence.
The use of the expression involuntarily permitted ' is a contradiction in terms.
We are distressed to find the learned Judge repeatedly expressing a view in his judgment that the conduct on the part of the appellants in allow ing the respondent to continue in the occupation of the premises until the filing of the application under section 41 of the S.C.C. Act on July 10, 1967 amounted to a grant of fresh licence.
It is not necessary to extract all the strange passages from the judgment of the High Court.
But we shah do a few more.
In the fifteenth paragraph while refer ring to the expression "deemed to be revoked" occurring in section 62(c) of the Easements Act it is said that "it does not necessarily mean that it is in fact revoked.
" The mistake is so obvious in this observation that it does not require any elaboration.
In the same fifteenth paragraph occurs a passage which we exercised in vain to understand.
It runs thus: "The fact that the respondents did not take any steps till they filed the application under section 41 which also would not automatically make the petitioner 's occupation unlawful means that the respondents impliedly granted a licence to the petitioner to continue to occupy the premises.
" Later on the learned Judge has said in his judgment that by adopting the procedure of filing the application under section 41 of the S.C.C. Act, the appellants impliedly granted to the respondent "a right to continue to occupy the premises till he was evicted by an order under section 43.
" Such a novel proposition of law is beyond our comprehension.
If the filing of the application under section 41 gives a fight to the occupant of the premises to continue to occupy it, then how can the Court pass an order of eviction under Section 43 in derogation or destruction of such a right ? The resulting position is too anomalous and illogical to merit any detailed discussion.
In the eighteenth paragraph of the judgment the learned Judge persuaded himself to say: 410 "The fact that the earlier agreement of licence ex pired on March 31, 1966, does not necessarily mean that there was no subsisting agreement on the date on which the application under section 41 was made or on February 1, 1973.
" It is difficult to understand what further act, conduct or writing of the appellants led to the undoing of the effect of the expiration of the earlier agreement of licence and bring about any subsisting agreement either on the date of the application under section 41 or on February 1, 1973.
We admit that if any such agreement could be culled out, in writing or oral, expressly or impliedly, by the action or the conduct of the appellants the Court would have been happy to cull out such agreement and give protection to the licensee in consonance with the spirit of the Amending Act viz.
Maharashtra Act 17 of 1973.
But the Court cannot and should not cast the law to the winds or twist or stretch it to a breaking point amounting to almost an absurdity.
Our observation is amply demonstrated by the following passage in the judgment of the High Court.
"Relying on the amendment of the Bombay Rent Act the respondents no doubt had withdrawn their permission under the agreements but by filing the proceedings under section 41 they permitted the petitioner to continue as the licensee as stated above; and this itself is a different kind of agreement of licence as defined under section 52 of the Easement Act.
" The learned Judge also seems to be making a difference between the filing of a suit against a licensee whose li cence has been terminated treating him as a trespasser and an application under section 41 of the S.C.C. Act.
For the purpose of the point at issue the distinction is more illu sory than real.
Two remedies, previously, were available to the licensor.
He could avail the one or the other.
The scope of the trial, disposal and further remedies in the two proceedings were different.
But it is wholly wrong to say that if a licensor filed an application under section 41 of the S.C.C. Act instead of filing a regular civil suit by implication treated the occupant of the premises against whom the S.C.C. application was filed as a subsisting.licen see.
In our opinion the judgment of the High Court is wholly wrong and suffers from serious infirmities of law and facts.
We accordingly allow this appeal, set aside the judgment and order of the High Court and restore that of the Small Cause Court.
The respondent must pay the costs to the appellants in this Court as also in the High Court.
P.H.P. Appeal allowed.

summary/full:
The appellants granted a licence in respect of certain shop premises in Bombay to the respondent under a Leave and Licence Agreement which expired on 31st March 1966.
There after the appellants served a notice upon the respondent calling upon him to remove himself from the premises.
The respondent refused to do so.
In July 1967 the appellants filed on application for eviction under Section 41 of the Presidency Small Causes Court Act.
The contention of the respondent that he was a tenant was negatived by the Small Causes Court, Bombay.
The respondent approached the High Court under Article 227 of the Constitution.
The High Court refused to interfere with the finding of the Small Causes Court that the respondent was a licensee and not a tenant.
The Bombay Rent Act was amended by Maharashtra Act 17 of 1973.
By the amending Act, section 5(4A) and Section 15A were introduced in the parent Act to confer on the licensee, who had a subsisting agreement on February 1, 1973, the status and protection of a tenant under the Bombay Rent Act.
The respondent by an amendment took the plea of protec tion under the Maharashtra Amendment Act 17 of 1973 on the ground that he was in occupation of the premises on 1st February 1973 under a subsisting agreement for licence.
The Small Causes Court, Bombay, negatived the plea on the ground that there was no subsisting agreement for licence on the 1st of February, 1973 as there was nothing on record to show that after 31st March 1966 the leave and licence agreement between the parties was renewed or any fresh agreement was entered into.
The respondent filed a revision petition under section 115 of C.P.C. in the High Court.
The High Court allowed the revision on the ground that the licence was not put an end to by the appellants and that in any event by filing the application for eviction the appellant licensor had granted an implied licence to the respondent licensee to continue in possession till a decree of eviction was passed in his favour.
Allowing the appeal, HELD: (a) In order to get the advantage of section 15A of the Bombay Rent Act, the occupant must be in occupation of the premises as a licensee as defined in section 5(4A) on the 1st of February 1973.
If he be such a licensee, the non obstante clause of section 15A(1) gives him the status and protection of a tenant in spite of there being anything to the contrary in any other law or in any contract.
But if he is not a licensee under a subsisting agreement on the 1st of February 1973, then he does not get the advantange of the amended provision of the Bombay Rent Act.
[407 H, 408 A] (b) A person continuing in possession of the premises after termination, withdrawal or revocation of the licence continues to occupy it is a trespasser or as a person who has no semblance of any right to continue in occupation of the premises.
Such a person cannot be called a licensee at all.
[408 B] (c) A person continuing in occupation of such premises after revocation of the licence is still liable to pay compensation, or damages for their use and occupation.
[408 E] 404 (d) Filing an application under section 41 of the Presi dency Small Causes Court Act may in certain circumstances have the effect of putting an end to the licence if it was subsisting on the date of its filing.
But, that cannot possibly have the effect of reviving the licence as opined by the learned Judge.
Such a proposition of law is both novel and incomprehensible.
[408H, 409 G] (e) It is right that the Court should act in consonance with the spirit of the Maharashtra Amending Act 17 of 1973.
But the Court cannot and should not cast the law to the winds or twist or stretch it to a breaking point amounting to almost an absurdity.
[410 C] (f) The finding of the High Court that the respondent was in occupation of the premises under a subsisting licence was wholly wrong and suffered from serious infirmities of law and fact and deserved to be.set aside.
[410 G] [The Supreme Court is loathe to pass any harsh or unpal atable remarks concerning the judgment of the High Court and ought to act with restraint.
But sometimes constraint outweighs restraint and compels this Court in discharge of its duty to make strong observations when it finds the judgment of the High Court running galore with the gross and palpable mistakes of law almost amounting to judicial imbal ance in the approach to the case].


judgement:
Civil Appeal No. 1942 of 1974.
Appeal by Special Leave from the Judgment and Order dated the 20 5 1974 of the Punjab and Haryana High Court at Chandigarh in Civil Writ No. 2169 of 1972.
L. N. Sinha, Solicitor General and Naunit Lal for the Appellant.
Kapil Sibal and P. R. Ramesh for Respondent No. 1.
P. P. Rao for the Applicant Intervener.
The Judgment of the Court was delivered by KHANNA, J.
This appeal by special leave by the State of Haryana is directed against the judgment of Punjab and Haryana High Court whereby petition under articles 226 and 227 of the Constitution of India filed by Des Raj Sangar respondent was allowed and order dated July 13, 1972 of the Haryana Government abolishing the post of Panchayati Raj Election Officer and terminating the services of the said respondent was quashed.
Des Raj Sangar respondent (hereinafter referred to as the respondent) joined service as a clerk in the Panchayat Department of the then Punjab Government in 1942.
The respondent was in due course promoted and confirmed as Head Assistant.
In 1961 while the respondent was officiating as a Superintendent in the Panchayat Department, he was appointed Officer on Special Duty (Elections).
The post of Officer on Special Duty (Elections) was an ex cadre post, while that of Superintendent was included in the cadre.
With effect from November 1, 1961 the post of Officer on Special Duty was re designated as Panchayati Raj Election Officer.
The respondent held the post of Panchayati Raj Election Officer temporarily till 1964 when that post was made permanent.
The respondent was confirmed as Panchayati Raj Election Officer with effect from September 19, 1964.
The decision to confirm the respondent was taken with a view to ensure the lien of the respondent on that post as the respondent had been selected by the Government of India as Gram Panchayat Officer in the Indian Aid Mission, Nepal.
An undertaking was also obtained from the respondent at the time he was confirmed that this would not affect the seniority of B. N. Sharma, who was senior to the respondent and who was then holding the temporary post of Planning Officer.
On the reorganization of the erstwhile State of Punjab with effect from 1036 November 1, 1966 the post of Planning Officer held by B. N. Sharma was allocated to the State of Punjab, while that of Panchayati Raj Election Officer held by the respondent was allocated to the State of Haryana.
From November 1, 1966 till April 16, 1971 the respondent worked as Planning cum Panchayati Raj Election Officer in the Panchayat Department of Haryana Government.
On April 16, 1971 the Haryana Government created eight temporary posts of Deputy Directors in the Panchayat Department in the pay scale of Rs. 400 1100.
The post of the respondent was also re designated as Deputy Director Panchayat with effect from April 16, 1971.
A notification was subsequently issued on May 13, 1971 superseding the earlier notification and the respondent 's post was again designated as that of planning cum Panchayati Raj Election Officer.
On the same day instead of the eight temporary posts of Deputy Directors, nine posts of Deputy Directors were created.
Two of those Deputy Directors were to be posted at the headquarters, one to deal with land development work and the other to deal with legal work, while seven of the Deputy Directors were to work in the field.
These seven posts of Deputy Directors meant for the field work were subsequently abolished.
Another post of Officer on Special Duty (Planning) in the grade of Rs. 400 800 was created in October 1971.
A. N. Kapur, who was junior to the respondent but who had been confirmed as Superintendent, was appointed Officer on Special Duty (Planning).
On April 13, 1972 the impugned order was made and the same reads as under: ORDER The Governor of Haryana is pleased to order that in view of the extreme financial stringency the permanent post of the Panchayati Raj Election Officer in the Panchayat Department, Haryana, in the scale of Rs. 400 40 1000/50 1100 should be abolished with immediate effect.
Consequent upon the abolition of the post of the Panchayati Raj Election Officer the Governor of Haryana is further pleased to order that the services of Shri Des Raj Sangar who is holding the post of the Panchayati Raj Election Officer in a substantive permanent capacity should be dispensed with immediate effect.
He should relinquish the charge of his post immediately.
He is allowed three months ' emoluments i.e. pay and allowances as gratuity in lieu of three months notice in accordance with the provisions of rule 5.9 of the Civil Services Rules, Volume II.
He shall be entitled to pension/gratuity in accordance with the rules in Chapter VI of the Civil Service Rules, Volume II, as amended from time to time, but the pension shall not be payable for the period in respect of which he has been allowed gratuity in lieu of three months ' notice.
J. section Sarohia Secretary to Govt.
Haryana Chandigarh Development & Panchayat Department Dated: 13th July, 1972 1037 The respondent in his petition while assailing the impugned order levelled allegations of mala fide against Shri Shyam Chand, then Minister for Development and Panchayats, Haryana but the said allegations were not pressed at the time of arguments.
Following two contentions were advanced on behalf of the respondent: (1) The impugned order dated July 13, 1972 abolishing the post of Planning cum Panchayati Raj Election Officer held by the respondent and the consequent termination of his services was arbitrary and had no reasonable nexus with the object sought to be achieved, namely, meeting the financial stringency.
The impugned order was stated to be violative of articles 14 and 16 of the Constitution inasmuch as the respondent who was at all times selected for higher posts and got promotions from the lower posts in the cadre was being thrown out of the job on the pretext of the abolition of the post permanently held by him, whereas persons junior to him in rank and less meritorious were retained in service.
(2) In view of the provisions of rule 3.14 and other relevant rules of Punjab Civil Services Rules, the moment the post held by the respondent was abolished his lien got revived on the post of Head Assistant which he had held substantively before his promotion to the ex cadre post and therefore his services could not be terminated, and he was in any case entitled to the admittedly existing post of Head Assistant.
As against the above, it was urged on behalf of the State of Haryana that the Government was well within its rights to decide as to which posts should be abolished to effect economy to meet the financial stringency and that the court could not go into the matter and decide whether the abolition of the post was justified or not.
It was also stated that the respondent could not be reverted to the post of Head Assistant as his lien on the post had been terminated when he was confirmed against the permanent post of Planning cum Panchayati Raj Election Officer.
The learned Judges of the High Court held that the impugned order was arbitrary, unreasonable and violative of articles 14 and 16 of the Constitution.
The order as such was quashed.
In view of the above finding, the learned Judges did not go into the second contention advanced on behalf of the respondent on the basis of rule 3.14 of the Punjab Civil Services Rules.
In appeal before us learned Solicitor General on behalf of the appellant State has urged that it is for the State Government to decide as to which post should be abolished and in case the State Government so decides for administrative reasons, its order in this respect should not have been quashed by the High Court.
As against that, Mr. Sibal on behalf of the respondent has canvassed for the correctness of the view taken by the High Court.
There is, in our opinion, considerable force in the contention advanced on behalf of the appellant in this respect.
Whether a post should be retained or abolished is essentially a matter for the Government to decide.
As long as such decision of 1038 the Government is taken in good faith, the same cannot be set aside by the court.
It is not open to the court to go behind the wisdom of the decision and substitute its own opinion for that of the Government on the point as to whether a post should or should not be abolished.
The decision to abolish the post should, however, as already mentioned, be taken in good faith and be not used as a cloak or pretence to terminate the services of a person holding that post.
In case it is found on consideration of the facts of a case that the abolition of the post was only a device to terminate the services of an employee, the abolition of the post would suffer from a serious infirmity and would be liable to be set aside.
The termination of a post in good faith and the consequent termination of the services of the incumbent of that post would not attract article 311.
In M. Ramanatha Pillai vs The State of Kerala & Anr.(1) Ray C.J. speaking for the Constitution Bench of this Court observed: "A post may be abolished in good faith.
The order abolishing the post may lose its effective character if it is established to have been made arbitrarily, malafide or as a mask of some penal action within the meaning of article 311 (2).
" It was further observed: "The abolition of post may have the consequence of termination of service of a government servant.
Such termination is not dismissal or removal within the meaning of article 311 of the Constitution.
The opportunity of showing cause against the proposed penalty of dismissal or removal does not therefore arise in the case of abolition of post.
The abolition of post is not a personal penalty against the government servant.
The abolition of post is an executive policy decision.
Whether after abolition of the post, the Government servant who was holding the post would or could be offered any employment under the State would therefore be a matter of policy decision of the Government because the abolition of post does not confer on the person holding the abolished post any right to hold the post." According to the impugned order, the post of the Panchayati Raj Election Officer was abolished in view of the extreme financial stringency.
In support of the above order, Shri G. L. Bailpur, Secretary to the Government of Haryana, filed affidavit.
According to that affidavit, the post of Panchayati Raj Election Officer was created simply for the conduct of elections of the Panchayati Raj Bodies.
The other duties which were performed by the respondent were only as a measure of temporary arrangement.
In order to streamline the Department the Government felt that the Department should be reorganised and as a result of reorganisation those duties which had nothing to do with the job of the Panchayati Raj Election Officer were with drawn and given to separate Deputy Directors of Panchayats.
The 1039 duties pertaining to legal matters and complaints against Panchas, Sarpanches and the members of the Panchayat Samitis were of such nature that the same required a legal background and field experience by the officer handling the subject.
Those duties were, therefore, given to Deputy Director of Panchayat (Legal) who was a Law graduate and had a long field experience as Block Development and Panchayat Officer.
After the reorganisation of the Department, the only work left with the Panchayati Raj Election Officer was that of conducting elections of Panchayati Raj Bodies.
As this work was of a periodical nature, the Government thought it fit to abolish it.
It was also stated in another affidavit filed on behalf of the appellant State that the post of Panchayati Raj Election Officer and the seven posts of field Deputy Directors were abolished as an economy measure to meet financial stringency.
We see no cogent ground to question the averments made in the above affidavits.
The averments show that the decision to abolish the post of Panchayati Raj Election Officer was taken because of administrative reasons.
The question as to whether greater economy could have been brought about by adopting some other course is not for the court to go into, for the court cannot sit as a court of appeal in such matters.
It may be that some of the functions which were being previously performed by the respondent are now being performed by Deputy Directors whose posts have not been abolished, this fact would not show that the decision to abolish the post held by the respondent was not taken in good faith.
After the posts of Deputy Directors had been created and had been in existence along with the post of Panchayati Raj Election Officer for a number of months, the Government, it would appear, decided to abolish some of the posts to meet the financial stringency.
In taking the decision as to which post to abolish and which not to abolish, the Government, it seems, took into account the relative usefulness of each post and decided to abolish the seven posts of field Deputy Directors and the one post of Panchayati Raj Election Officer.
This was a matter well within the administrative discretion of the Government and as the decision in this respect appears to have been taken in good faith, the same cannot be quashed by the court.
The fact that the post to be abolished is held by a person who is confirmed in that post and the post which is not abolished is held by a person who is not permanent would not affect the legality of the decision to abolish the former post as long as the decision to abolish the post is taken in good faith.
We would, therefore, hold that the High Court was in error in quashing the order of the Government whereby the post of Panchayati Raj Election Officer had been abolished.
There appears to be, however, considerable force in the second contention advanced on behalf of the respondent that on the abolition of the post of Panchayati Raj Election Officer, his services should not have been terminated.
According to clause (a) (2) of rule 3.14 of Punjab Civil Services Rules Vol.
I Part I as applicable to Haryana State, a competent authority shall suspend the lien of a Government servant on a permanent post which he holds substantively if he is appointed in a substantive capacity to a permanent post outside the cadre on which he is borne.
According to clause (e) of that rule, a 1040 Government servant 's lien which has been suspended under clause (a) of that rule shall revive as soon as he ceases to hold a lien on the post of the nature specified in sub clauses (1), (2) or (3) of that clause.
The above provisions were considered by us in the case of T. R. Sharma vs Prithvi Singh & Anr.(1) and it was held that in the absence of a written request by the employee concerned, the lien on the post permanently held by him cannot be terminated.
It is nobody 's case that any written request was made by the respondent for terminating his lien on the post of Head Assistant.
As such, the lien of the respondent on the post of Head Assistant should be held to have immediately revived as soon as the post of Panchayati Raj Election Officer was abolished.
It has been pointed out by Mr. Sibal that officials who were junior to the respondent have in the meanwhile been promoted to higher posts.
It would be for the authorities concerned to take such consequential steps as may be necessary in accordance with the rules because of the revival of the lien of the respondent on the post of Head Assistant.
Mr. Sibal has also stated that the respondent may exercise his option of taking compensation pension in accordance with rule 5.2 of the Punjab Civil Services Rules Vol.
II because of the abolition of the post of Panchayati Raj Election Officer.
In case the respondent does so, it would be for the Government to pass appropriate orders in the matter.
Submission has further been made by Mr. Sibal that the respondent should not in view of the hardship suffered by him be compelled to make refund out of the salary which he has been drawing during the pendency of the appeal.
This again is a matter which is entirely for the Government to decide and we are sure that the Government would pass appropriate order keeping in view all the circumstances of the case.
We accordingly accept the appeal and set aside the judgment of the High Court.
We hold that the order of the Government abolishing the post of Panchayati Raj Election Officer does not suffer from any infirmity and as such is not liable to be quashed.
We further hold that on the abolition of that post, the lien of the respondent on the post of Head Assistant stood revived.
The parties in the circumstances shall bear their own costs throughout.
V.P.S. Appeal allowed.

summary/full:
The respondent was Head Assistant in the Panchayat Department of the Punjab Government.
While he was officiating as Superintendent in the Department, he was appointed Panchayati Raj Election Officer, which was an ex cadre post.
On the reorganisation of the State, the respondent was allocated to the appellant State and he continued to work as Panchayati Raj Election Officer in the appellant State.
In 1972, the State Government abolished the post of Panchayati Raj Election Officer and the services of the respondent were dispensed forthwith.
He challenged the order and it was quashed by the High Court.
In appeal to this Court, ^ HELD: Since the order of the appellant abolishing the post of Panchayati Raj Election Officer did not suffer from any infirmity, the High Court was in error in quashing it; but on the abolition of that post, under r. 3.14 of the Punjab Civil Service, Rules, the lien of the respondent on the post of Head Assistant stood revived.
[1040 F G] (1)(a) Whether a post should be retained or abolished is essentially a matter for the Government to decide, and as long as the decision is taken in good faith, it could not be set aside by the Court but, if it is found that the abolition was not in good faith, but was a cloak or device to terminate the services of an employee, then the abolition of the post may be set aside.
[1037 H 1038 C] M. Ramanatha Pillai vs The State of Kerala & Anr. ; , followed.
(b) In the present case, the decision to abolish the post was taken because of administrative reasons.
The Government re organised the Panchayat Department, and all those duties which had nothing to do with the job of Panchayati Raj Election Officer were given to other officers.
The only work left with the Panchayati Raj Election Officer was that of conducting elections of Panchayat Raj Bodies, and, as this work was of a periodical nature, the appellant abolished that post because of financial stringency.
[1038 G 1039 C] (c) Whether greater economy could have been brought about by adopting some other course is not for the Court to go into.
The fact that some of the functions which were being previously performed by the respondent are now being performed by others, whose posts have not been abolished, would not show that the decision to abolish was not taken in good faith.
In deciding which post to abolish, the appellant took into account the relative usefulness of each post, and as this matter was within the administrative discretion of the appellant and as the decision was taken in good faith, the Court cannot interfere with it.
[1039 C 1039 F] (d) The fact that the post which was abolished was held by a person who is confirmed in that post and the posts which were not abolished were held by persons who were not permanent would not also affect the legality of the decision to abolish the former, if the decision was taken in good faith.
[1039 F G] 1035 (2) Under r. 3.14(a), a competent authority shall suspend the lien of a Government servant on a permanent post which he holds substantively, if he is appointed in a substantive capacity, to a permanent post outside the cadre on which he was borne; and under r. 3.15, in the absence of the written request by the employee, the lien cannot be terminated.
Under r. 3.14(e), the Government servant 's lien which has been so suspended shall revive as soon as he ceases to hold a lien on the ex cadre post.
In the present case, since there was no request by the respondent for terminating his lien on the post of Head Assistant, his lien on that post should be held to have immediately revived as soon as the post of Panchayati Raj Election Officer which was an ex cadre post was abolished.
[1039 H 1040 C] T. R. Sharma vs Prithvi Singh & Anr.
[1976] 2 S.C.R. 716, followed.
[It was for the Government to pass all consequential orders regarding his seniority, pension etc.] [1040 C]